Author Topic: Daily living activity3 changes may be illegal  (Read 298 times)

ally

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Daily living activity3 changes may be illegal
« on: 02 Jun 2018 05:24PM »
The Secretary of State has withdrawn her appeals against cases which awarded more than one point for monitoring health and administering medication casting doubt on the legality of the changes that were made to Daily Living Activity 3 in March 2017 (which were made alongside the mobility changes were were declared unlawful)  The garden chambers posted a blog on the above, which may be interesting.  Gcnchambers.co.uk

Sunny Clouds

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Re: Daily living activity3 changes may be illegal
« Reply #1 on: 03 Jun 2018 04:24PM »
Presumably this is also something they'll take years to reassess people on.  Sorry to sound negative.

Still, at least it should (in theory) help people with first assessments and repeat assessments whilst it's being sorted.
(I'm an obsessive problem-solver, so feel free to ignore any suggestions or solutions I offer, even if they sound terribly insistent.)

Monic1511

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Re: Daily living activity3 changes may be illegal
« Reply #2 on: 03 Jun 2018 08:13PM »
Pulled from Rights net -More reading for me  >crying<
DWP accepts that its approach to PIP activity 3, 'managing therapy or monitoring a health condition', was wrong prior to 2017
Secretary of State confirms that cases affected by the error will be reviewed
The DWP has accepted that its approach to assessing personal independence payment (PIP) activity 3, ‘managing therapy or monitoring a health condition’, was wrong prior to 2017.
An appeal to the Upper Tribunal had been scheduled to be heard on 21 May 2018 as a test case to consider the meaning of daily living activity 3 and whether assistance to monitor health and administer medication - prior to amendments made by SI.No.194/2017 in March 2017 that specifically excluded actions that amount to monitoring a health condition from the definition of therapy - may amount to supervision, prompting or assistance to manage therapy.

However, the DWP has now withdrawn its appeal to the Upper Tribunal and, in addition, the Secretary of State has confirmed that the DWP's appeal to the Court of Appeal against the decision CPIP/721/2016 will also be withdrawn.
NB - in CPIP/721/2016, the Upper Tribunal held that the pre-2017 form of activity 3 descriptors relating to assistance to manage therapy could be satisfied as a result of assistance including managing medication and monitoring the claimant's health.
In withdrawing her appeals, the Secretary of State has accepted that, as with the case of her error relating to the mobility element of PIP, she will now need to review past claims relating to the activity to check whether higher points scoring descriptors should have applied to claimants receiving assistance to monitor health and administer medication.
For further details see Secretary of State for Work and Pensions acknowledges getting law wrong again on meaning of PIP descriptors - will have to conduct review of old cases from the Garden Court North Chambers website.
The Secretary of State for Work and Pensions (SSWP) has for the second time this year acknowledged an error in her department’s approach to the meaning of the Personal Independence Payment Regulations 2013. Coming after an error relating to the mobility activity ‘planning and following journeys’ which may have caused 220,000 individuals to be underpaid, the latest error affected individuals with chronic conditions needing regular monitoring or medication, such as diabetes and epilepsy.
The First-tier Tribunal (FTT) had decided that two claimants with chronic conditions were entitled to a Personal Independence Payment (PIP). The SSWP appealed to the Upper Tribunal (UT). But shortly before a test case hearing arranged before a three-judge panel of the UT for 21st May 2018, the SSWP withdrew her appeals (Secretary of State for Work and Pensions v AN & JM CPIP/1882/2015 and CPIP/1159/2016). Her related appeal to the Court of Appeal (Secretary of State for Work and Pensions v Birch C3/2017/0894) will now also be withdrawn. Both claimants will receive the disability benefit to which the FTT had decided they were entitled.
The appeals concerned the meaning of Daily Living Activity 3, ‘Managing therapy or monitoring a health condition’, before amendments were made to it in March 2017. The government had been arguing that ‘therapy’ excluded treatment which consisted of the monitoring of health and administration of medication. For example, one of the claimants in these cases was a person with type 1 diabetes and unusual sleep patterns, who needed someone to watch over him at night, sometimes administering insulin or glucose while he slept, to avoid diabetic coma and death. The FTT had decided he qualified for PIP. The government had argued in the appeal that he should be awarded only 1 of the minimum 8 points necessary to qualify for PIP.
As a result of withdrawing her appeals, the SSWP has accepted that, as with the case of her error relating to the mobility element of PIP, she will now need to review past claims relating to this descriptor, to identify other claimants who may have been underpaid. The government has not yet given any details of when or how that process will be carried out, or how many claimants it expects to be affected.
Further, the SSWP’s abandonment of her appeal may cast doubt on the legality of the changes she made to the Regulations in March 2017 regarding Activity 3. When making those changes, she did not consult before doing so. Following the SSWP’s concession in these test cases, it now appears that the SSWP was, through the March 2017 amendments, making a significant change in the law. In RF v Secretary of State for Work And Pensions [2017] EWHC 3375 (Admin) (21st December 2017), the High Court quashed the SSWP’s other attempt to amend the Regulations, partly because the SSWP had failed to consult before making those changes (RF, §63).
Tom Royston acted for the claimants AN and JM, instructed by Kirklees Citizens Advice and Law Centre.

Sunny Clouds

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Re: Daily living activity3 changes may be illegal
« Reply #3 on: 04 Jun 2018 12:21AM »
They'll just do a bit of consultation and re-write them differently in a way that excludes even more people.  The only way, IMO, that'll be stopped is if there's a high profile campaign and the media gets behind it.

But I notice that even where the Guardian, which is one of the few mainstream media outlets to speak out on this sort of thing, publishes something about it, it's not on the homepage.

I feel despairing then think that each little challenge or fightback like this gives me a bit of hope.
(I'm an obsessive problem-solver, so feel free to ignore any suggestions or solutions I offer, even if they sound terribly insistent.)

lankou

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Re: Daily living activity3 changes may be illegal
« Reply #4 on: 04 Jun 2018 03:58PM »
There is an emergency debate on the issues raised in the House of Common now. (15.45 hours, 04/06/2018.) It will be in Hansard to-morrow.

Sunny Clouds

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Re: Daily living activity3 changes may be illegal
« Reply #5 on: 04 Jun 2018 09:44PM »
I tried to listen to it, but once McVey opened her mouth, I felt like I wanted to scream, so I had to stop listening.

I hate the way they distort the figures.  Pick some random condition and say how much better it is for them.  I'd rather they spared us the lies covered in a veneer of 'fact', the perfect illustration of which is how again and again McVey and her colleagues have used a figure for how much they spend on supporting disabled people that includes the figure for JSA paid to people who just happen to be disabled but aren't claiming ESA.  But if they can call a JSA claimant disabled, then they can call their JSA, simply claimed as JSA not because they can't get ESA, a benefit paid to support a disabled person and use it to bump up the figures.

I'm struggling today after reading an article in the New York Times about Austerity in the UK.  When we in the disabled people say it's bad and then wonder whether anyone would see just how bad it is, the NYT article said that from the outside, UK Austerity is not far short of Greek Austerity.  We can forget how shocking it looks from the outside.  But at least with the Greek Austerity, they were open about what they were doing: with UK Austerity, the government is disingenuous, as epitomised by McVey.  Nope, I can't resist the urge - as epitomised by McVile.  (And you'll know how rarely I resort to that sort of play on people's names.)
(I'm an obsessive problem-solver, so feel free to ignore any suggestions or solutions I offer, even if they sound terribly insistent.)