R (on the application of (1) C (2) W) (Claimants) v SECRETARY OF STATE FOR WORK & PENSIONS (Defendant) & ZACCHAEUS 2000 TRUST (Intervener) (2015)

Keywords: Time limits

Delays of 13 months and 10 months in processing the claims of two claimants for the (newly introduced) Personal Independence Payment (PIP) were found to be unlawful on the grounds that “While there was no statutory time limit for determining claims, the secretary of state had a public law duty to do so within a reasonable period.”.

Additional grounds of claim under ECHR articles 1 and 6 were dismissed and, consequently, there was no entitlement to a monetary award for distress.

Nevertheless declarations of unlawfulness were granted to both claimants on public law grounds.

The delays were found to be unlawful in that they were unreasonable (in the sense of irrational) taking into account all the circumstances. The relevant circumstances were that:

  • The claimants had significant disabilities and were amongst the most vulnerable members of society.
  • Delays were due to failures to gather the information needed to determine the claim, including failing to act on information provided by the claimant and adapt the information gathering process to ensure that it was achievable. [For example, claimant 1 had twice been asked to travel to a face to face assessment despite having provided information about her difficulty travelling.]
  • The delays were due to a challenging timetable, systems not having been fully tested, insufficient time being allowed to resolve problems and failure to resolve problems after they had been clearly identified.

“The prejudice and distress of both claimants of having to wait for the protracted period of time to have their claims determined was considerable and unnecessary.”

PIP is a non-means-tested benefit to help disabled persons with the additional costs of living with a disability. It was introduced in a phased roll-out from 2013 onwards with the intention that it would replace Disability Living Allowance (DLA) for adults from October 2015. The original estimate was that the claims process would take about 10 weeks; revised in September 2014 to 16 weeks. In February 2014, the National Audit Office found a backlog at each stage of the claim process and concluded that the secretary of state had adopted a challenging timetable and had not properly assessed the performance of proposed systems. In June 2014, the Public Accounts Committee severely criticised the implementation of PIP calling it “nothing short of a fiasco”. Despite the availability of these reviews, backlogs continued to accumulate.

Claimant 1 suffered a delay of 13 months and claimant 2 a delay of 10 months. The intervener, an anti-poverty charity, introduced evidence of delays in processing other applications.

It was held that:

  1. It was not appropriate to treat the claimants’ cases as test cases because the varied disabilities and circumstances of claimants meant that the degree of similarity was insufficient.
  2. The secretary of state had a public law duty to determine claims within a reasonable period. The delays of 13 months and 10 months experienced by the claimants were unreasonable and unlawful in all the circumstances despite the lack of a statutory time limit for determining claims. Declarations of unlawfulness were granted to both claimants.
  3. Article 6 was not engaged. The secretary of state’s decision was a determination of a civil right, but the delay occurred prior to the determination. The delay was not a delay in bringing a dispute to a hearing, but a delay in making the determination itself and the parties were not engaged in a dispute.
  4. Article 1 Protocol 1 was not engaged because the claimants had no actual right of entitlement to the personal independence payment.

Comment: The cases of these two claimants were dealt with individually and deemed not to be test cases and the case concerns benefits rather than social care. Nevertheless the judgement is indicative of the likely interpretation of timeliness by the courts where there is no statutory time limit for the performance of a function. This is particularly relevant for key social care processes under the Care Act including assessment and care and support planning.

It is clear that the point at which a delay becomes unlawful depends on all the circumstances including: the vulnerability of the claimant and the impact on them and the foreseeability of the delay and whether opportunities to rectify the situation have been taken. Delays which are merely undesirable and do not reflect the best standards are unlikely to be so unreasonable as to be unlawful. However, the cumulative effect of delays being due to poor planning, failure to review systems and persisting despite the public body being aware of them and having a significant adverse impact on vulnerable individuals can reach the level of unlawfulness.

“The scale of the project is a cogent factor in the defendant’s favour but it has to be balanced against the fact that the PIP scheme is intended for the most vulnerable members of society and fit for purpose has to be construed with that service user in mind. It is important, therefore, that the system introduced and operated is accessible to its service users and efficient.”

It is also worth noting that the application for judicial review was allowed to proceed to a hearing despite both claims being academic (determinations about both claimant’s PIP entitlement having been made by the time of JR application) on public interest grounds and due to concerns about potential inadequacy of the complaints process as an alternative remedy.

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