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DWP may have unlawfully deprived benefit arrears from tens of thousands of PIP claimants

28 June 2021

The DWP may have acted unlawfully after potentially depriving tens of thousands of benefit claimants of thousands of pounds each in back-payments, according to a legal opinion given to Benefits and Work .

After taking legal advice from a leading social security barrister, the Benefits and Work wants to hear from claimants who may have been affected to help with a potential legal action.

The call relates to a high court ruling in December 2017 (known as “MH”) that found DWP had acted unlawfully by introducing new rules that were “blatantly discriminatory”.

Benefits and Work explains:

“Claimants should have been awarded the standard rate of PIP mobility if, because of “overwhelming psychological distress”, they needed someone with them to follow the route of an unfamiliar journey or if they could not undertake a journey at all.

And they should have been awarded the enhanced rate if they could not follow the route of a familiar journey without having someone with them for the same reason.

Instead the DWP had been awarding just 4 points, not enough for any award of the mobility component at all.”

After then Work and Pensions Secretary Esther McVey said she would not appeal the court’s ruling, DWP announced a huge “LEAP review” of 1.6 million PIP claims to see how many had been wrongly assessed and were now entitled to backdated PIP payments.

However, Benefits and Work highlight that increasing doubts have arisen about whether the LEAP review, which began in June 2018, “is a genuine and effective attempt to identify the many thousands of claimants who have been underpaid.”

Barrister Tom Royston, of Garden Court North Chambers, who also acted for MH, has told Benefits and Work that there is significant public interest in bringing a legal case to establish if DWP has acted unlawfully.

He said:

“In my opinion there is an arguable case that SSWP’s [Secretary of State for Work and Pensions] review is unlawful . . . and there strikes me as being a significant wider public interest in any such case, both because the legality of large scale public projects is always important and because there are strong reasons in this case for believing that many affected individuals would not be able to take effective remedial action by themselves”

He then points to DWP figures that showed that, by January 2021, it had examined nearly 900,00 cases but had made back-payments in only 3,700 of them, which meant the proportion of those benefiting from the trawl (0.4 per cent) was 35 times fewer than DWP had predicted.

Have you had a LEAP review letter?

Benefits and Work wants to hear from PIP claimants who have received a letter from DWP about the review in the last three months to tell them their PIP award has not changed as a result of the trawl.

The letter is likely to refer to changes in PIP law “that affect how the Department for Work and Pensions decides PIP claims” and will mention the MH versus DWP tribunal judgement and how it “relates to how ‘overwhelming psychological distress’ is considered when assessing the ability of someone to plan and follow a journey”.

Benefits and Work is asking any claimant who has received a letter like this in the last three months to complete a short survey.

Separately, Benefits and Work would like to learn more about how the DWP are dealing with challenges to LEAP decisions.

Currently, their sample of challenges does not include any that made it to appeal. In every case, the DWP either changed their decision at MR or did so after an appeal was lodged, but before a bundle was prepared.

It would be really interested to hear of other agencies experiences of appeals, confidentially to info@benefitsandwork.co.uk