Work and pensions secretary Ester McVey has refused to say how many disabled claimants are likely to receive backdated benefit payments, following the latest in a series of serious legal errors by the Department for Work and Pensions (DWP).

McVey has withdrawn appeals against two tribunal findings that her department wrongly deprived people with long-term health conditions of the personal independence payment (PIP) they were entitled to.

It is believed she will now have to review many past PIP claims to identify other claimants who may have been underpaid up to March 2017, at which point DWP had tightened the PIP regulations.

Lawyers acting for two claimants, AN and JM, who both need support to take medication and monitor their health condition, argued that they should have been scored in the PIP eligibility assessment in the same way as people needing support to manage treatment therapies such as dialysis.

DWP had been arguing that PIP daily living activity three – the part of the assessment that covers “managing therapy or monitoring a health condition” – excluded treatment which consisted of monitoring health and administering medication.

But the first-tier tribunal had decided that DWP had been wrongly applying regulations dating back to 2013, when PIP was introduced.

One of the two claimants has diabetes and unusual sleep patterns, and needs someone to watch over him at night, sometimes administering insulin or glucose while he sleeps to avoid diabetic coma and death.

Shortly before the upper tribunal was set to hear a test case examining AN and JM’s claims, McVey withdrew her appeals.

It was also claimed that she had withdrawn an appeal in a separate case that was to be heard by the court of appeal, but both a DWP spokeswoman and McVey herself suggested that that case was still ongoing.

Both AN and JM will now receive backdated payments to cover the level of PIP the first-tier tribunal had decided they were entitled to up to March 2017.

But it is possible that that they will not be eligible for this level of PIP from March 2017 onwards, because of last year’s decision to tighten the regulations.

Government ministers in both the Commons and the Lords this week refused to answer questions from opposition members on what steps DWP would take to identify other PIP claimants who had been affected in the same way as AN and JM.

In response to an urgent question from Labour’s former shadow work and pensions secretary Debbie Abrahams, McVey said she had “decided no longer to continue with the appeals in order to provide certainty to the claimants”.

But when Abrahams asked how many people she believed had been wrongly assessed on the daily living activity three descriptor, and if she would be reviewing past claims, McVey refused to answer.

She said instead that Abrahams’ urgent question was only about the cases of AN and JM and so “the question of whether we move on and do other things is not for discussion today”.

She added: “There is a further case under way, and I am sure the speaker would agree that it would be incorrect for me to discuss an ongoing legal case, so I cannot do so.”

McVey claimed that this other case was “sub judice”, but the speaker, John Bercow, told her that was not correct and that she could answer the question if she wished to do so.

But McVey said her legal advice had been that she “should not be talking about an ongoing legal case, but obviously when we get that decision through, I will either be back here with a statement or making a written statement to explain what is going on”.

Margaret Greenwood, Labour’s shadow work and pensions secretary, said: “Given that this is the second error in the department’s interpretation of its own [PIP] guidance to come to light in six months, what reason do disabled people have to believe that her department is fit for purpose?”

SNP’s Alison Thewliss said DWP’s credibility now “lies in tatters” and that it was “incompetent” and failing disabled people.

AN and JM have been represented by barrister Tom Royston, from Garden Court North Chambers, in Manchester, who was instructed by Kirklees Citizens Advice and Law Centre (KCALC).

Nick Whittingham, KCALC’s chief executive, said he believed it would now be useful to seek a judicial review of the government’s decision in March 2017 to tighten the regulations.

He said: “It would be appropriate that there is some legal challenge. We would be keen to find a client to take a case forward and test that.”

Royston said this decision to tighten the regulations could have been unlawful, because DWP failed to carry out a public consultation before doing so and the changes were clearly “a significant change in the law”.

The high court has already quashed DWP’s other attempt to tighten the PIP regulations in March 2017, relating to mobility and mental distress, partly because of the failure to consult.

McVey announced in January that she would not appeal a court ruling that found those changes were unlawful, “blatantly discriminatory” and had breached the UN disability convention.

Those changes had meant that people who were unable to plan or undertake a journey due to overwhelming psychological distress would receive fewer qualifying points when assessed for PIP.

DWP is already reviewing 1.6 million PIP claims to see which claimants might be entitled to backdated, increased payments as a result of the “psychological distress” ruling.

And it is also engaged in a huge trawl through historic employment and support allowance (ESA) claims because of the botched migration of former claimants of incapacity benefit and other benefits to the new ESA from 2011 onwards.

But DWP refused this week to answer questions about the daily living activity three PIP appeals or how many other claimants might potentially be eligible for backdated payments.

A DWP spokeswoman added: “We are unable to comment on ongoing litigation so are not able to comment on the Court of Appeal case.”


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