Ros White considers the provisions of recent regulations which reverse the effect of two Upper Tribunal decisions on the personal independence payment (PIP) assessment criteria.
In force from 16 March 2017, the Social Security (Personal Independence Payment) (Amendment) Regulations 2017, No.194 (the amending regulations) make changes to the assessment criteria in Schedule 1 of the Social Security (Personal Independence Payment) Regulations 2013, No.377 (the PIP regulations) so as to reverse decisions of the Upper Tribunal concerning the interpretation of descriptors under daily living Activity 3, ‘managing therapy or monitoring a health condition’, and mobility Activity 1, ‘planning and following journeys’.
Introducing the new regulations in a written statement to parliament, 1Minister">www.parliament.uk/business/publications/written-questions-answers-statem... for Disabled People, Health and Work Penny Mordaunt said that their purpose was to ‘restore the original aim of the benefit’ and advised that they were being introduced urgently, without reference to the Social Security Advisory Committee, to avoid confusion for claimants, assessors and the courts and because of the implications on public expenditure.
Daily living Activity 3
In SSWP v LB  UKUT 530 (AAC), Judge Mesher highlights the anomaly that, even if a claimant needs extensive and time-consuming assistance with managing medication and monitoring a health condition, s/he can never score more than one point under descriptor 3(b), in contrast to those who need help with managing therapy who can score between two and 10 points under descriptors 3(c)(d)(e). To address this anomaly, Judge Mesher holds that:
‘… descriptor 3(b)(ii) does not apply if supervision, prompting or assistance is needed for both managing medication and monitoring a health condition and only applies if it is needed for one only of those alternatives. It also does not apply if the supervision etc is needed for elements of what would ordinarily be regarded as therapy that go beyond either managing medication or monitoring a health condition within the meaning of descriptor 3(b)(ii). In both those circumstances in which descriptor 3(b)(ii) does not apply, the case would potentially fall within the therapy provisions in descriptors 3(c)–(f), depending on howfar the supervision etc relates to something that can properly be called undertaking therapy and with the scale of points depending on the time for which the supervision etc is needed. All elements of therapy in its ordinary meaning could then be considered, including any taking of medication or monitoring of a health condition. If the need for supervision etc is limitedtoone or other ofthose alternatives in descriptor 3(b)(ii), then in order to allow the descriptor to have any practical application the application of descriptors 3(c) – (f) would be excluded.’ (paragraph 34)
However, the amending regulations reverse that decision by separating definition of ‘manage medication or therapy’, in Part 1 of Schedule 1 of the PIP regulations, into two separate definitions (‘manage medication’ and ‘manage therapy’) and amending the definition of ‘therapy’ to make it clear that this does not include receiving or administering medication by any means, or any action which falls within the definition of ‘monitor a health condition’. The regulations also make clear that descriptor 3(b) remains the appropriate descriptor even if the claimant requires assistance with both receiving medication and monitoring a health condition.
Mobility Activity 1
Following a number of Upper Tribunal decisions which took differing approaches to the interpretation of the Activity 1 descriptors for people whose problems with planning and following journeys stem from psychological problems such as anxiety and depression (HL v SSWP (PIP)  UKUT 344 (AAC), DA v SSWP  UKUT 344 (AAC) and RC v SSWP  UKUT 386 (AAC)), a three-judge panel considered the issue in MH v SSWP (PIP)  UKUT 531 (AAC).
In particular, the three-judge panel focused on whether the consideration of ‘overwhelming psychological distress’ was limited to descriptors 1(b) and 1(e) (which directly address the condition directly) or whether it was also relevant to the consideration of the ‘follow the route’ descriptors 1(d) and (f).
Using the government’s response to the 2012 consultation on the PIP assessment criteria and regulations2">www.gov.uk/government/consultations/personal-independence-payment-assess... as an aid to the interpretation of the Activity 1 descriptors, the three-judge panel concluded that the phrase ‘follow the route’ includes an ability to navigate but can also connote making one’s way along a route which involves more than just navigation. The judges went on to find that the Secretary of State’s concession in HL v SSWP that ‘overwhelming psychological distress’ (but not mental health problems short of that) can have the effect that a person is unable to ‘follow the route’ of a journey was rightly made, and held that:
‘A person who is accompanied may be encouraged to overcome the distress where as a person who is unaccompanied may not. Thus descriptors 1d and 1f might be satisfied by a person liable to suffer from overwhelming psychological distress when out walking.’ (paragraph 44)
However, the amending regulations overturn this part of the decision from 16 March by providing that ‘psychological distress’ (whether overwhelming or not) cannot be taken into account when assessing a claimant’s ability to plan a journey under descriptor 1(c) or follow a route under descriptors 1(d) and (f).
The passage of the regulations, in particular the exclusion of psychological distress from consideration in descriptors 1(c), (d) and (f), has been controversial. Many expressed the view that such significant changes (estimated by the DWP to save £3.7 billion by 20223">www.gov.uk/government/news/changes-to-personal-independence-payment-regu...) should have been subject to prior consultation and debate by parliament.
However, a motion to annul the regulations was defeated in the House of Lords on 27 March 2017, although a motion to regret their introduction was agreed.4">www.parliament.uk/business/news/2017/march/lords-discusses-personal-inde...
At the time of writing, we also understand that a House of Commons debate on the regulations has been scheduled for 19 April 2017 although, due to the timescales involved, a vote against the regulations will not mean that they will be automatically revoked.5">https://hansard.parliament.uk/commons/2017-03-29/debates/80B479C2-C920-4...
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