Using the law to address unfair systems, A case study on the Personal Independence Payments legal challenge
Published 07/06/2019
This article presents an overview of a comprehensive report co-published by The Baring Foundation and Lankelly Chase, based on the research of Dr Lisa Vanhala and Dr Jacqui Kinghan on the relevance of strategic litigation when working on bringing about significant policy change.
The report follows a case against the Department of Work and Pensions (DWP) for modifying Personal Independence Payments (PIP) in a discriminatory way. PIP takes into account the claimant’s ‘daily living’ and ‘mobility’ scores and through a 2017 negative resolution from The Secretary of State, people suffering from mental rather than physical disabilities had increased difficulty in qualifying for the benefit. Public Law Project (PLP) played a ‘pivotal role’ in coordinating with a wide network of individuals and organisations to successfully bring the case. We have done a short summary of the report, as well as the following write-up on the most essential takeaways.
The problem
- High levels of concern about the ability of contractors to conduct accurate assessments and that these might even be deliberately misrepresented in order to deny claimants benefits
- 65 per cent of those who appealed against rejected PIP claims saw the decision overturned by judges
- In 2017, the DWP introduced regulations to reverse the effect of two Upper Tribunal judgments relating to the PIP eligibility criteria
- The rules on access to the mobility component for people unable to undertake journeys due to “overwhelming psychological distress” were tightened
- Broader context where the UK government faced criticism for its austerity and poverty-related policies, and failure to comply with the UN Convention on the Rights of Persons with Disabilities (UNCRPD)
Key Lessons
For civil society organisations
- Linking policy work and legal case work
- Respond to relevant consultations and play a proactive role in the legislative process (or work with those that do)
- Collaborate with other organisations working on or around the issue
- Proactively develop a media strategy (even if that means doing no or limited media) around the case and be prepared for unexpected surges of press attention
- Disseminate the decision to the wider sector
- Anticipate how you will work with the Government to implement decisions and/or assist with draft guidance
For lawyers working with claimants experiencing discrimination and disadvantage
- Put aside sufficient time and resources to properly support claimants through the various stages of the litigation process
- Be sensitive to what litigation demands of (but also offers) claimants who are at the heart of the case
- Work with organisations who are best placed to give voice to those experiencing multiple and severe disadvantage
- Reach widely across networks to gather submissions and expert evidence
- Ensure supporters of the case are accommodated in the court hearing
For funders
- Civil society organisations require time and resources to respond to relevant government consultations and play a proactive role in the legislative process
- Lawyers working in civil society organisations have a distinct role to play
- Accept there will be unexpected turns and endpoints in the litigation process
- Anticipate the funding required after the litigation phase in order to implement the decision
- Litigation has the potential to empower individuals to drive systemic change
The report emphasises the difficulties that arise when a claimant chooses to bring a legal action in court, especially when the applicant is not eligible for legal aid and has to bear the cost of the litigation and when they are taking on a powerful legal authority. Moreover, the litigation process may prove to be particularly onerous for those with mental health conditions. It can seem impossible to bring about a claim that will be time-consuming, emotionally and financially draining and that has little chances of succeeding. Even if the claim does succeed, there is no guarantee that the DWP (or other state entities for that matter, on different topics) will not subtly modify the problematic legislation in a way in which it is not overtly discriminatory but has the exact same effect.
In spite of being categorised as ‘least likely’, the case of RF was successful on all three counts: the regulations were discriminatory and violated Article 14 of The European Convention of Human Rights, the government did not have the authority to make the regulations as they fell outside the scope of the legislation upon which they rested and the government had failed to consult on the regulations and the new changes had not been fairly presented in the consultation process. The modified legislation drew substantial criticism from the judge who deemed it ‘blatantly discriminatory’. This would lead one to believe that significant pressure would be put on the government but there were participants in the research who believed it was a matter of luck and that a different judge would not have followed the same reasoning. Once the DWP decided against appealing the decision, the outcome of the case garnered more permanence.
Proper support for claimants throughout the litigation process has been shown to be vital, support which goes beyond legal advice and that would not have existed were it not for the systematic work of all the mental health organisations supporting PLP in the litigation process. Cases such as the RF case underline litigation’s potential to empower individuals to drive systemic change – it is not every day that one has the opportunity to take on the ‘Goliath’ of the Public Sector.
