New Regs

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New Benefit Regulations







And they say they don't like red tape?



Remember all those pre - election promises to cut back on bureaucracy & free us all of red tape?


Well I dare say some employers may well see some kind of freedom from all those 'stifling' rules connected with anything from health and safety to the right to sack a loyal employee at a moments notice, no doubt landlords will be set free of many of those all too annoying rules protecting their tenants, private sector bosses can perhaps rejoice in less red tape getting in the way of a nice fat profit; but when it comes to the most condemned individual on the planet - the wicked benefit claimant - they can expect the social security rule book to swell to mammoth proportions with another wave of new rules ensuring they get as little as possible or even less than possible it seems....


But I thought they were simplifying benefits?


You have to be having a laugh! Since the coalition came to power we have seen a whole raft of new legislation, it's not just the most recent and far reaching welfare reform act we need to keep and eye on but a huge number of statutory instruments in the regulatory stages. You can refer to an interesting article on the Parliamentary process surrounding secondary legislation here.

The following are some of the most recently passed and draft regulations, we'll take a look at them in due course but one of particular interest is the latest draft on Personal Independence Allowance which appears to be coming remarkably 'stricter' in respect of the descriptor connected with mobility....



Passed

(1) The Employment and Support Allowance (Sanctions) (Amendment) Regulations 2012


(2) The Benefit Cap (Housing Benefit) Regulations 2012


(3) The Jobseeker’s Allowance (Sanctions) (Amendment) Regulations 2012

Draft


(1) The Social Security (Personal Independence Payment) Regulations 2013


(2) Transitional Personal Independence Payment


(3) Disability Living Allowance, Attendance Allowance and
Carer’s Allowance: draft of the amendment regulations


(4) Universal Credit Regulations 2013


(5) The Universal Credit (Transitional Provisions) Regulations 2013


(6) The Jobseeker’s Allowance Regulations 2013


(7) The Employment and Support Allowance Regulations 2013


(8) The Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013


(9) The Social Security (Payments on Account of Benefit) Regulations 2013


(10) The Housing Benefit (Amendment) Regulations 2012


(11) The Universal Credit, Personal Independence Payment and Working-age Benefits (Claims and Payments) Regulations 2012


(12) Personal Independence Assessment criteria (second version)


(13) Personal Independence Assessment criteria (latest version)

[nickd]

In the next two posts I've taken an extract from the (A) Disability Living Allowance regulations relating to mobility and made a comparison with:


(B) The amended (2011) Employment & Support Allowance regulations

(C) The previous version for Personal Independence Allowance

and

(D) The most recent draft for Personal Independence Allowance


My initial impression is that the latest draft for Personal Independence Allowance is an an exceptionally 'high bar' test where it is going to be very difficult to score for those who would otherwise have qualified for the higher mobility rate of the Disability Living Allowance.


It will no doubt set challenges for Tribunals who take one look at a person with quite obvious mobility restriction and form a view, regardless of the strict letter of the law, that he or she 'should' qualify for the enhanced mobility rate.


Under the latest rules to qualify for the PIP mobility enhanced rate (12 points) a claimant would need have the following level of impairment:


(E) Can stand and then move more than 1 metre but no more than 20 metres, either aided or unaided. = 12 Points


(F) Cannot, either aided or unaided –

(i) stand; or

(ii) move more than 1 metre. = 12 Points


Which by strict definition is going to a very rigid criteria for claimants to have to meet on this single descriptor.


As with Disability Living Allowance which say used the 'virtually unable to walk' criteria, I reckon we will see the need for the regulations to be better determined by cases of precedent in Upper Tier (and higher appellate divisions) before we get clear definition upon law which can be more practically applied.


I also wonder whether we will see the DWP linked with Atos & other contracted healthcare services using their computer databases to work out where a review on another benefit should be triggered. For instance if you take someone being assessed under the Work Capability Assessment for Employment & Support Allowance and they score the following under the 'mobilising' descriptor:

(d) Cannot either:

(i) mobilise more than 200 metres on level ground without stopping in order to avoid significant discomfort or exhaustion;

or

(ii) repeatedly mobilise 200 metres within a reasonable timescale because of significant discomfort or exhaustion. = 6 Points

Who's to say it wouldn't lead to a decision that the same claimant could not qualify for the comparable descriptor within Personal Independence Allowance?

[nickd]

(A) Disability Living Allowance


Entitlement to the mobility component

12.—(1) A person is to be taken to satisfy the conditions mentioned in section 37ZC(1)(a) of the Act (unable or virtually unable to walk) only in the following circumstances–

(a)his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to the place of residence or as to place of, or nature of, employment–

(i)he is unable to walk; or

(ii)his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk; or

(iii)the exertion required to walk would constitute a danger to his life or would be likely to lead to a serious deterioration in his health; or

(b)he has both legs amputated at levels which are either through or above the ankle, or he has one leg so amputated and is without the other leg, or is without both legs to the same extent as if it, or they, had been so amputated.

(2) For the purposes of section 37ZC(2)(a) of the Act (mobility component for the blind and deaf) a person is to be taken to satisfy–

(a)the condition that he is blind only where the degree of disablement resulting from the loss of vision amounts to 100 per cent; and

(b)the condition that he is deaf only where the degree of disablement resulting from loss of hearing amounts to not less than 80 per cent on a scale where 100 per cent represents absolute deafness.

(3) For the purposes of section 37ZC(2)(b) of the Act, the conditions are that by reason of the combined effects of the person’s blindness and deafness, he is unable, without the assistance of another person, to walk to any intended or required destination while out of doors.

(4) Except in a case to which paragraph (1)(b) applies, a person is to be taken not to satisfy the conditions mentioned in section 37ZC(1)(a) of the Act if he–

(a)is not unable or virtually unable to walk with a prosthesis or artificial aid which he habitually wears or uses, or

(b)would not be unable or virtually unable to walk if he wore or used a prosthesis or an artificial aid which is suitable in his case.

(5) A person falls within subsection (3)(a) of section 37ZC of the Act (severely mentally impaired) if he suffers from a state of arrested development or incomplete physical development of the brain, which results in severe impairment of intelligence and social functioning.

(6) A person falls within subsection (3)(b) of section 37ZC of the Act (severe behavioural problems) if he exhibits disruptive behaviour which–

(a)is extreme,

(b)regularly requires another person to intervene and physically restrain him in order to prevent him causing physical injury to himself or another, or damage to property, and

(c)is so unpredictable that he requires another person to be present and watching over him whenever he is awake.

www.legislation.gov.uk/uksi/1991/2890/regulation/12/made

____________________________________________________________________________________


(B) Employment & Support Allowance

1. Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid can reasonably be used.

1 (a) Cannot either:

(i) mobilise more than 50 metres on level ground without stopping in order to avoid significant discomfort or exhaustion;

or

(ii) repeatedly mobilise 50 metres within a reasonable timescale because of significant discomfort or exhaustion. = 15 Points

(b) Cannot mount or descend two steps unaided by another person even with the support of a handrail. = 9 Points

(c) Cannot either:

(i) mobilise more than 100 metres on level ground without stopping in order to avoid significant discomfort or exhaustion;

or

(ii) repeatedly mobilise 100 metres within a reasonable timescale because of significant discomfort or exhaustion. = 9 Points

(d) Cannot either:

(i) mobilise more than 200 metres on level ground without stopping in order to avoid significant discomfort or exhaustion;

or

(ii) repeatedly mobilise 200 metres within a reasonable timescale because of significant discomfort or exhaustion. = 6 Points

(e) None of the above apply. = 0 Points

____________________________________________________________________________________


(C) Previous Personal Independence Allowance

2. Moving around.

(a) Can move at least 200 metres either –

(i) unaided; or

(ii) using an aid or appliance, other than a wheelchair or a motorised device. = 0 Points

(b) Can move at least 50 metres but not more than 200 metres either –

(i) unaided; or

(ii) using an aid or appliance, other than a wheelchair or a motorised device. = 4 Points

(c) Can move up to 50 metres unaided but no further. = 8 Points

(d) Cannot move up to 50 metres without using an aid or appliance, other than a wheelchair or a motorised device. = 10 Points

(e) Cannot move up to 50 metres without using a wheelchair propelled by the claimant. = 12 Points

(f). Cannot move up to 50 metres without using a wheelchair propelled by another person or a motorised device. = 15 Points

Above (November 2011)
www.dwp.gov.uk/docs/pip-second-draft-assessment-regulations.pdf

____________________________________________________________________________________


(D) Latest Personal Independence Allowance draft

Final activity 12 – Moving around

Descriptor Points

(A) Can stand and then move more than 200 metres, either aided or unaided. = 0 Points

(B) Can stand and then move more than 50 metres but no more than 200 metres, either aided or unaided. = 4 Points

(C) Can stand and then move unaided more than 20 metres but no more than 50 metres. = 8 Points

(D) Can stand and then move using an aid or appliance more than 20 metres but no more than 50 metres. = 10 Points

(E) Can stand and then move more than 1 metre but no more than 20 metres, either aided or unaided. = 12 Points

(F) Cannot, either aided or unaided –

(i) stand; or

(ii) move more than 1 metre. = 12 Points

Above - December 2012 draft (latest)

www.dwp.gov.uk/docs/pip-assessment-thresholds-and-consultation-response.pdf

[nickd]

www.dwp.gov.uk/docs/pip-assessment-thresholds-and-consultation-response.pdf