RF v Secretary of State for Work And Pensions

An amendment excluding psychological distress as a qualifying reason under specified Personal Independence Payment mobility descriptors introduced a new causation requirement. It changed the statutory scheme materially and disadvantaged people with mental health impairments.

Discrimination in the enjoyment of Convention rights must satisfy a four-stage proportionality test. In the social-security context, the measure must also be manifestly without reasonable foundation before the court will intervene. Cost-saving and an unsupported generalised assumption that people experiencing psychological distress have lower functional needs did not satisfy those standards. The amendment was also incompatible with the statutory purpose of assessing functional limitation rather than diagnosis and should have been preceded by consultation.

The claimant sought judicial review of paragraph 2(4) of the Social Security (Personal Independence Payment) (Amendment) Regulations 2017. The provision amended descriptors c, d and f for the mobility activity of planning and following journeys, adding the words “for reasons other than psychological distress”.

The claimant, supported by Mind and the Equality and Human Rights Commission, argued that the amendment was discriminatory, ultra vires the Welfare Reform Act 2012, and unlawfully made without consultation. The Secretary of State maintained that it restored the original policy intention. The central issues were whether the amendment was objectively justified, compatible with the statutory scheme, and lawfully made.

1. Outcome. The claim succeeded on all three grounds. Permission to seek judicial review was granted and paragraph 2(4) of the 2017 Regulations was quashed.
2. The original 2013 descriptors required the decision-maker to determine whether the claimant could plan or follow the relevant journey, without requiring an inquiry into the cause of the inability. The 2017 amendment introduced an express causation requirement. If psychological distress was the reason, the claimant could not satisfy descriptors c, d or f.
3. The amendment represented a major change likely to affect very large numbers of claimants. Its effect was discriminatory because people with substantially equivalent functional limitations were treated differently according to the cause of their inability.
4. Under the four-limbed test in Huang v Secretary of State for the Home Department [2007] 2 AC 167 and Bank Mellat v HM Treasury (No 2) [2014] AC 700, the Secretary of State had to establish that the objective was sufficiently important, that the measure was rationally connected to it, that a less intrusive measure was unavailable, and that a fair balance had been struck. The court also applied the “manifestly without reasonable foundation” standard applicable to social-security measures, as stated in R (Carmichael) v Secretary of State for Work and Pensions [2016] 1 WLR 4550.
5. The real objective was to save money. The assertion that the psychologically distressed cohort generally had a lower level of functional need was an unsupported hypothesis. Expertise, advisory-group scrutiny and testing did not supply the necessary evidential basis. The first two limbs were therefore unsatisfied, and the measure also failed the fair-balance requirement.
6. The amendment was incompatible with the statutory purpose of Part 4 of the 2012 Act, which was to assess limitation by reference to functional impairment rather than diagnosis. Its magnitude also made consultation necessary; the failure to consult was unlawful.