The Queen on the application of Steven Sumpter and the Secretary of State for Work and Pensions [2014] EWHC 2434 (Admin) Case No: CO/3843/2013

In this judgment, the High Court consider the judicial review challenge to the fairness of the consultation process on the introduction of new 20 metre eligibility criteria for the mobility component of PIP.

The challenge was brought by Mr. Steven Sumpter who can only walk a few metres with a stick and is otherwise dependent on a wheelchair. He receives the higher rate of the mobility component of DLA and uses this to lease a Motability car. However, he fears that he may lose access to the Motability scheme under PIP.

Under DLA, usually claimants are considered to be virtually unable to walk and entitled to its higher mobility rate if they cannot walk more than 50 metres. the higher rate if they are ‘unable or virtually unable to walk’.. Under the new Personal Independence Payment (PIP) scheme, the relevant distance is reduced to 20 metres.

The judicial review challenge argued that the original 2012 consultation carried out by the Government prior to the introduction of PIP was unfair as it had failed to mention the new 20 metre qualifying criterion.

In its judgment the High Court agrees that the eligibility criteria in the 2012 consultation to have been “mind –bogglingly opaque”, with Justice Hickingbottom admitting that:

“ … had it been necessary for me to have determined whether the consultation process would have been fair if it had stopped in December 2012…, the question would have been difficult and it should not be assumed that I would have found it to have been fair and lawful. Indeed, I have the gravest doubt as to whether I would have found it to be so.”

However, without conceding any legal flaw in the original consultation, the Government had carried out a further consultation in 2013, and decided following that process to retain the 20m threshold.

Although the first consultation was on the whole of the PIP scheme, the 2013 consultation was limited to the particular criterion used to assess the eligibility of those with physical disabilities for the enhanced rate.

It was argued on behalf of Mr Sumpter that this very limited process was not sufficient to remedy the unfairness experienced in the 2012 consultation.

In particular, it was submitted to the High Court that the consultation process was unfair and thus unlawful because consultees:

  • never had a proper opportunity to comment upon the 20m walking threshold for PIP enhanced rate mobility; and
  • were not provided with sufficient information (notably on the impact the proposals would have on the cohort of physically disabled) to enable an intelligent response.   

It was also submitted that The Secretary of State failed to comply with his public sector equality duty under section 149 of the Equality Act 2010.

However, Justice Hickingbottom concludes that proper opportunity was given for comments on the new enhanced mobility threshold:

“It seems to me that there is no sensible evidential basis upon which I could find that the consultation process, looked at as a whole, was inadequate or unfair so as to be unlawful.  In any event, in my firm judgment, it was clearly not unfair.  The Claimant, and other interested parties, had a proper opportunity to make their comments on the 20m criterion in the 2013 Consultation, which the Secretary of State considered with an open mind and without excluding any option as a real possibility. 

The report to Ministers following the 2013 Consultation was conspicuously full and fair.  Those advising were entitled to make a recommendation to the Secretary of State, as they did, to maintain the Moving around criterion as set out in the 2013 Regulations.  And the Secretary of State was entitled to come to the same view, having considered all of the options, the evidence and the consultation responses, with an open mind.”

In rejecting the second ground, Justice Hickingbottom holds that by the 2013 Consultation, it was well-recognised that the new mobility criteria would result in a very large number/proportion of those entitled to higher rate mobility and who were physically disabled not being entitled to PIP enhanced rate mobility:

“Indeed, relying upon the figures in the 2013 information … in representations in the 2013 Consultation solicitors on behalf of the Claimant made the very point that: 

“The impact will be on those with this level of physical disability and will clearly be so great that the Government needs to consider whether some alternative way of making the financial savings that it seeks can be found…”. “

Lastly, Justice Hickingbottom dismisses the submission that the Secretary of State failed to comply with his public sector equality duty.

Section 149 of the Equality Act 2010 provides that a public authority must, in the exercise of its functions, have “due regard” to the need to:

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Act;

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. 

Concluding that the Secretary of State did have regard to his Section 149 duties, Justice Hickingbottom holds that:

“This entire exercise concerned disabled people; and, on any consideration of the history which I have related above, whatever was published (which I deal with above), it is simply not arguable that the Secretary of State was not at all relevant times fully aware of the impact of the proposed reforms on disabled people, including those who fell within the cohort of physically disabled benefiting from DLA higher rate mobility. 

Before putting the 2013 Regulations before Parliament, a full Equality Impact Assessment was done and was available to the Secretary of State … It was known that the number of people who would qualify for enhanced rate mobility would fall substantially and, for the reasons I have given, it was reasonably obvious that many physically disabled people entitled to DLA higher rate mobility would not qualify for PIP enhanced rate.  At the time of the 2013 Consultation and October 2013 decision to retain the criteria, a further Equality Assessment was done that set out both figures and the impact in terms of individuals by way of case studies and including particularly the impact of the decision in respect of Motability vehicles.”

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