The Department for Work and Pensions (DWP) is ignoring a judge’s decision over its contentious disability assessments. But it’s taken a Freedom of Information (FOI) request to bring this to light.
Now, the DWP has told The Canary it will not change anything, despite what the judge said. This is because it claims the ruling is not legally “binding”. But a specialist lawyer doesn’t think this is true. So, is the DWP acting unlawfully?
The DWP: up to its neck in it. Again.
Personal Independence Payment (PIP) is a benefit for sick and disabled people. It’s supposed to help with their extra costs if they live with illnesses or impairments. But PIP has been dogged by scandal. From stealth real-terms cuts, to huge rates of successful appeals, the benefit is a shambles. Also, around 12 people a day die waiting for the DWP’s decision on their PIP.
But on 31 January, an FOI revealed that part of the PIP process may be unlawful. J Roberts sent in a request to the DWP. Roberts asked for:
current letters used by ATOS and Capita to notify claimants of appointments with HCPs [Healthcare Professionals] for PIP assessments.
The DWP answered. It published the current letter used by Independent Assessment Services (formerly Atos). And in doing so, it appears to have shot itself in the foot.
In December 2019, a claimant went to an upper tribunal about his PIP claim. It was because the DWP denied him PIP for a period of time. This was because, the DWP said, he failed to go to a health assessment. The judge said the DWP had to give the claimant PIP for the period of time in question. But the judge also opened a can of worms. This is because he ruled on the letters IAS sends to claimants. These are to tell them about their assessments.
At the time of the upper tribunal case, IAS’s letters said:
It is important that you attend this appointment. If you fail to attend without good reason the decision maker at the [DWP] is likely to disallow your claim. If you can’t attend please contact our Customer Service Centre straightaway
The judge had a major issue with that paragraph.
Wording is everything
He said that the phrase “it is important” did not legally mean a claimant must go to an appointment. The judge noted three other cases which said similar things.
so fearful of punitive action that they will attempt to attend an appointment even if the nature of their health condition or disability makes this difficult or impossible.
But the judge didn’t buy the DWP’s argument. He said:
I am not persuaded that the letter imposes a mandatory legal requirement as such… The first sentence is that ‘It is important that you attend this appointment’. This by itself plainly fails the test as laid down in the case law. It says no more than that attendance at the appointment is desirable, or even highly recommended, but not required in mandatory terms. It is no more than a message that you “should” attend, and as such lacks the necessary element of compulsion… so as to constitute a requirement.
He said to meet case law from previous rulings, it should say something like:
You must attend this appointment. If you fail to attend without good reason the decision maker at the Department for Work and Pensions will disallow your claim.
So, back to the FOI – and what do IAS’s letters currently say?
Ignoring the courts
The DWP’s response to J Roberts’ FOI revealed that it has barely changed the letters. As of 31 January, the section in the letter in question read [pdf]:
It’s really important that you come to your appointment because we’re only allowed to rearrange it once. If you miss your appointment without good reason, DWP may end your PIP claim. If you also currently get Disability Living Allowance (DLA), DWP would also stop this.
“It’s really important” is hardly different to “it is important”. And while the DWP has made the general wording friendlier, it still does not fit with what the judge said.
The DWP says…
A DWP spokesperson told The Canary:
The ruling in this case was non-binding so does not require any change to practice or law. But we take tribunal findings into account when reviewing our procedures. We will consider these findings as we continue to improve our assessment processes.
But The Canary sought legal advice on this issue. A specialist welfare lawyer said the DWP was “clutching at straws”. They also said that it is not correct that it is “non-binding”. And they explained why. The Canary has agreed to keep the lawyer anonymous.
Here comes the legal bit
In the upper tribunal ruling, the judge said his comments were “not part of the formal ratio“. That means, he was not making a decision on a point of law. He was just ‘chatting’ about a part of the case. In legal terms that’s called an “obiter dicta“. So, on the face of it, the DWP is correct. The judge’s comments about the letter are non-binding. This is because they were obiter dicta. They were not the focus of the judge’s decision.
But, that’s not the whole story. Firstly, the upper tribunal judge uses examples from the court of appeal and the supreme court. They said similar things about DWP letters. So the DWP should have changed them anyway.
Now, the DWP could argue the cases were about different benefits. But one ruling was very clear. The court of appeal said broadly of the DWP, benefits, and claimants, that if the DWP:
wishes to impose a requirement on claimants… it is incumbent on [it] to make it absolutely clear that this is what [it] is doing. There should be no room for doubt in the mind of a sensible layperson as to whether the [DWP] is imposing a mandatory requirement or not.
You’d think the DWP would have changed its letters after this ruling. But it didn’t.
Back to the upper tribunal. The judge does note that the letter’s wording is a “question of law”. He says it is one which he can “express a view” on. Which he did. That should, under normal circumstances, be enough for the DWP to change the letters.
But moreover, the judge scrapped a first-tier tribunal’s ruling. This was where the claimant originally appealed. The judge then applied (‘re-made‘) his ruling to that of the first-tier tribunal, too. The Canary‘s welfare lawyer source said that the first-tier tribunal’s ruling would now be binding. So, the DWP should have changed the letters.
To all intents and purposes, the DWP’s letters are now unlawful. But the bigger issue here is its arrogance.
Above the law? Or a law unto itself?
The DWP seems to think it can behave how it wants. Time after time, the DWP acts like it’s above the law. But in this case, the implications could be huge. It could impact countless claimants. The fact a judge thinks the DWP and IAS’s letters do not meet legal requirements should force the DWP to act. It probably won’t. But there could be many claimants who now have a fresh line of attack. It’s one they could use when the DWP has denied them social security. Whether the DWP still acts like it’s above the law with them, though, remains to be seen.
Since you're here ...
We know you don't need a lecture. You wouldn't be here if you didn't care.
Now, more than ever, we need your help to challenge the rightwing press and hold power to account. Please help us survive and thrive.