The Government's PIP review - a technical but important point
The Labour government’s Green Paper on reform to welfare benefits has generated a range of reactions. I would recommend Emma Burnell’s take for a balanced and nuanced high level perspective, and the Resolution Foundation’s generally critical but well-informed take for technical detail and a crystallisation of the concerns of its critics.
I am just going to comment on a technical aspect of one aspect of the proposed reforms: the limitation of the daily living component of PIP (personal independence payment) to claimants who score four points on at least one of the 10 daily living descriptors: see paragraphs 137-142. Though it is technical, it may turn out to be very impotant to a lot of people.
I had better briefly explain how eligibility for PIP works. At the moment, you establish eligibility for standard rate daily living component if you score eight or more points from a list of descriptors set out in regulations (secondary legislation made by ministers): the list is at part 2 of the Schedule linked to1. (If you score 12 or more points you get an “enhanced rate” award.) 2
It is quite common for claimants to establish eligibility - especially for conditions such as back problems or arthritis - by showing that they need aids in order to prepare food, wash, get dressed, and go to the toilet (aids can be things such as a stool to sit on while cooking or a grab rail in the bathroom). Such claimants score two points in each of the four descriptors that cover those activities, and so they reach the critical eight points3.
Claimants with mental health conditions may also accumulate two-point scores under the various descriptors so as to get to the critical score of eight: for example, someone with significant depression or anxiety may well require prompting to prepare food, wash, and get dressed, and need help with managing their budget (“complex budgeting decisions” in the language of desciptor 10), and therefore get to eight points by accumulating four scores of two points each4.
However, in their case, it is also quite likely that descriptor 9 applies: “engaging with other people face to face”. That descriptor has a number of heads, but my point relates to (b) and (c), which are (with the number of points for each head): -
b. Needs prompting to be able to engage with other people (2 points)
c. Needs social support to be able to engage with other people (4 points).
You can see at once that if someone needs help and encouragement to engage with other people, the question of whether they fall under head (b) or head (c) depends on what is meant by “social support”.
You can also see that if the government’s proposals are enacted5, for many people with significant mental health problems and who have picked up two points under a number of other descriptors (quite likely if this descriptor is in issue) the distinction here will be critical to whether they get an award - because if they fall under head (c) they get four points, and cross the new “at least four points in one descriptor” overall threshold for eligibility.
So what is meant by “social support”? The definition paragraph at the top of the Schedule tells you that it means: -
support from a person trained or experienced in assisting people to engage in social situations
For a long while after the provisions came into force, that was thought to mean something like professional help: so someone who could not engage with others without help and encouragement from a family member but didn’t need any help beyond that (a very common situation) would not fall under that head and would get two points under head (b).
But then came the 2019 Supreme Court judgment in SoS for Work and Pensions v MM. The Supreme Court there held that “social support” could come from a family member if they had experience of assisting the claimant in social situations: -
Applied in the family/friends setting, to qualify for points under 9c, the claimant has to need support from someone who is not just familiar with him or her, but who is also experienced in assisting engagement in social situations. It is the training/experience of the helper upon which the claimant depends in order to enable the face to face engagement with others to take place, not simply the close and comforting relationship that may exist between the claimant and the helper. (paragraph 34, original emphasis)
The Supreme Court went on to explain how decision makers and the First-tier Tribunal should approach the distinction: -
Although the provision is concerned with the help the claimant needs, rather than with the help which he or she is actually getting in practice, it seems likely that, in many family/friends cases, someone will already be carrying out the supportive role in face to face engagements. Where this is so, the assessment/decision making process will be assisted by looking at the elements of the support that they actually provide, how they have come to know what to do, whether or not the sort of help that they provide could be provided by any well-meaning friend or family member, and what additional help (if any) is required. Exploring these issues will no doubt be a sensitive task. (paragraph 37)
In practice, however, in very many cases where someone is found to need help and encouragement to engage with others, it is found that that help can’t come from just anyone: it has to come from a trusted family member or equivalent. And in very many of those cases, it becomes clear that that is at least in part because that trusted family member is able to help because they have over the months or years that the condition has existed learnt how to do so for that person. In consequence, it has become much more common for four points to be awarded under this descriptor.
As a result, in practice, and if descriptor 9 is left in place as it stands, the new “at least four points under one descriptor” rule may have comparatively rather less effect on those who struggle with mental health conditions such as depression and anxiety than it does on those with physical conditions such as back pain.
There are obviously a number of policy responses to that point, and it is not the purpose of this blog to suggest what those might be. But I thought it was a point worth making: and it will be interesting to see if (given the much greater importance that this legal point will have under the proposed new regime) whether any change to the wording of descriptor 9 is brought forward.
NB you can only score under one head of each descriptor - if several heads of one descriptor apply, you get the highest-scoring.
There is a similar system for the separate determination of eligibility for mobility component (part 3 of the Schedule), but that is not at issue here.
There is, depending on your point of view, an oddity here. PIP is designed to compensate people for the increased costs they face as a result of their disability. But the cost of acquiring an aid - for example a stool - may be a quite low and on-off expense: and many people are able to get items such as grab rails installed without charge (or have them there when they move in). It could therefore be argued that PIP is here going beyond what is needed to compensate for increased costs. (None of that is to deny the reality that many people with significant disability and who fall in this category depend on PIP as a source of income - and on any compassionate view need that money.)
Remember that someone with both back pain and depression (and many people suffer from both, not least because of the causal connection between the two) can only score once under each descriptor: so, to take descriptor 1 (preparing food), they may well fit head (b) for needing an aid (eg a stool) and head (d) for needing prompting - but they can’t get both, so will only get two points under that descriptor.
The government could have maxde the change by amending the regulations, which would have needed only an affrimative vote in each House of Parliament: but - in a very welcome step given the importance of the change - this will be done by primary legislation.