Sally Robertson considers the ruling in R (Ms C & Mr W) v Secretary of State for Work and Pensions  EWHC 1607 (Admin).
On 5 June, Mrs Justice Patterson in the Administrative Court ruled that the Department for Work and Pensions’ delay in delivering Personal Independence Payments (PIP) to two claimants was unlawful.
PIP was introduced from April 2013 in a rolling programme to replace Disability Living Allowance (DLA) for adults of working age. Between October 2015 and late 2017, any adults remaining in receipt of DLA will be reassessed for PIP.
Originally it was anticipated that some 600,000 DLA claimants would lose benefit (Introduction of Personal Independence Payment, 19.1.15, House of Commons Library researchbriefings.files.parliament.uk/documents/SN06861/SN06861.pdf) with a cut of £2.5 billion in expenditure.
In practice, the success rate on DLA transfers is 77% but on new claims, only 51% have resulted in an award .
Patterson J ruled that:
“… the delay in claimant C’s case from 9 September 2013 until the determination of her benefit on 24 October 2014 of some thirteen months and the delay in claimant W’s case from 3 February 2014 until December 2014 of some ten months was not only unacceptable, as conceded by the defendant, but was unlawful.” 
Both claimants had been awarded PIP before their claims for judicial review had been heard. Earlier, they had been refused permission on the papers and had had to make a renewed oral application. At the permission hearing, the DWP had argued that the claims were therefore academic and that in any event a complaints procedure gave the claimants an alternative remedy. In giving permission, Mrs Justice Cox observed:
“ … serious issues are raised in this case regarding systematic and widespread delays. The Courts should not be shut out of resolving such an issue, including consideration of declaratory relief.” 
Patterson J’s careful exposition of what had gone wrong and the warning signs ignored by Iain Duncan-Smith’s DWP reads as a devastating indictment of the Government’s approach to disability and the needs of some of those most vulnerable in our society.
After a wait of 13 months, Ms C was awarded enhanced rates of PIP, currently £139.75 a week. Had she been personally affected by the benefit cap, she would have had to experience a further and wholly unnecessary cut while waiting. That is because receipt of PIP exempts a claimant from the benefit cap.
However, the measures taken by the DWP to address the reasons for delay are working, albeit slowly. By March 2015, the median time for determination of PIP claims had fallen from 41 to 15 weeks . Whether this excludes claims made under what should be the fast track rules for people who are terminally ill is not clear. In any event, although a delay of over 3 months seems unacceptable, Patterson J found that currently it “cannot be said that there are now inherent systemic failings in the system.” 
Analysing the DWP figures further, Leigh Day, who represented the Intervener Z2K, a London-based charity campaigning against unfairness in the law, legal and benefits system, said today that “there remains a backlog of over 60,000 claimants, 23% of whom (as at April 2015) had been waiting over 20 weeks for their decision 4,700 had been waiting more than 40 weeks.”
Although Patterson J held that the delay in the two claimants’ cases was a breach of duty to act ‘without unreasonable delay’ and as such unlawful [92-93], she did not accept that it was appropriate to treat the two as test cases .
Turning to the Human Rights Act claims, Patterson J considered first whether the DWP’s conduct breached the Article 6 right to the determination of civil rights in a reasonable time. She accepted the Defendant’s stark submission that there was no dispute, rather ‘a temporary backlog’ 
In Patterson J’s judgement:
“… considering the broad purpose of Article 6, … it is not engaged in the circumstances here. The decision made by the defendant was a determination of the civil rights of the claimants but the complaint made in the judicial review is dealing with the time before that determination. Even on the determination there was no dispute between the parties as the claimants were successful in their claims. As to the time period leading up to the determination of the claims there was no dispute between the parties in relation to that period. The complaint is one of delay within the process of determination of the civil right.” 
The claim under Article 1 Protocol 1 was dealt with as simply. Until benefit was actually awarded, there was no ‘possession’ to be interfered with. A1P1 was not engaged . Had it been engaged and the delay constituted interference, she would have found “the assessment process was in the public interest because it was required to ensure that PIP was targeted to those who were most in need of it and that public resources were spent fairly and efficiently.” 
The claimants were granted a declaration of unlawfulness. In this ‘evolving’ situation with the DWP “grappling in a way which is entirely appropriate” with the problems, Patterson J saw it as inappropriate to grant a declaration in wider terms or give guidance. In practice, the critique shown through her analysis of the bureaucratic history should act as such.
No monetary compensation was awarded. However, complaints to the Parliamentary Ombudsman may result in compensation, even though the acute hardship caused by such delays may in practice be irreparable.
The claimants were represented by Irwin Mitchell; the Intervener by Leigh Day. The decision can be found here.
R (Ms C & Mr W) v Secretary of State for Work and Pensions  EWHC 1607 (Admin)