ON APPEAL FROM THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
Mr Justice Charles sitting with Upper Tribunal Judges Jacobs and Lane
Case Nos. JR/2638 & 2639/2012 CO/2385/2012
Strand, London, WC2A 2LL
B e f o r e :
VICE PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION
LORD JUSTICE ELIAS
LORD JUSTICE VOS
| SECRETARY OF STATE FOR WORK AND PENSIONS
|- and -
|THE QUEEN ON THE APPLICATION OF MM & DM
|- and -
|(2) THE NATIONAL AUTISTIC SOCIETY
|(3) RETHINK MENTAL ILLNESS
|(4) EQUALITY & HUMAN RIGHTS COMMISSION
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Mr Martin Chamberlain QC, Mr Gwion Lewis and Ms Katherine Apps
(instructed by The Treasury Solicitor) for the Respondent
Mr Richard Drabble QC and Mr David Blundell (instructed by the Charities) for the 1st, 2nd and 3rd Interveners
Mr Robin Allen QC and Ms Catherine Casserley (instructed by the Equality and Human Rights Commission) for the 4th Intervener
Hearing dates : 21, 22 October 2013
Crown Copyright ©
Lord Justice Elias:
The process of making a claim
The Independent Review
"36. The year one Review said that: "the onus is and must be on the claimant to provide information to support their claim ---- it is difficult to see any justification or method of operating such a system without requiring the majority of claimants to be their own advocates.
37. During the year two Review it became clear that the Decision-makers were seeking to gather increased amounts of further documentary evidence as recommended in year one. This was seen as positive progress whilst also recognising that, in an ideal world, further documentary evidence will be provided at an earlier point in the claim process. Concerns remained that further documentary evidence was often only being provided as part of the reconsideration process.
38. However, some charities have suggested that the collection of further documentary evidence should be a mandatory duty on either Atos or on the Decision-maker. They have argued that claimants cannot, for a number of reasons, collect this information themselves and therefore the Department should take responsibility for doing so.
39. This view has been widely canvassed over the course of this year and put to charities, representative and disability groups, politicians, senior officials in DWP and, most importantly, to the Decision-makers during this year's unannounced visits to Benefit Delivery Centres.
40. A consensus has clearly emerged. There should be a requirement in every claim to consider seeking further documentary evidence and, if that evidence is not sought, that the decision not to should be justified.
Based on this, I recommend that:
Decision-makers should actively consider the need to seek further documentary evidence in every claimant's case. The final decision must be justified where this is not sought.
41. Given the unique circumstances of their condition, particular care should be taken when the claimant has a mental, intellectual or cognitive condition as these individuals may lack insight into the effects of their condition on their day-to-day functioning."
"We would anticipate that the best way of implementing the intent behind this recommendation would be to introduce an additional element in Atos' process. This would take the form of making explicit the requirement for Healthcare professionals to actively consider further evidence and to include a justification where they decide that further evidence would not be necessary. Decision-makers would then ensure that this justification has been provided, and where they question or disagree with a justification, would have the option to request Atos to go back and gather the further evidence that may be required."
"As with any potential changes in our processes, we need to ensure that the additional resources required in terms of administration and processing times is balanced by a demonstrable impact on the quality of decision-making and customer experience, in order to maintain an appropriate emphasis on the value for money of the process. We will therefore work on reviewing the implications of any such changes set out above before we can be clear on whether to implement. On that basis the Department supports the intent of the recommendation and provisionally accepts the desirability of making appropriate changes, subject to the caveat that we must first work to ensure it can be implemented in a cost-effective fashion before taking a final decision."
The effect of the proposals
The difficulties facing MHPs
"(i) In terms of filling out a form, seeking additional evidence and answering questions, claimants with [mental health problems] as a class have the following problems and difficulties because of their [mental health problems], some of which overlap:
a) insufficient appreciation of their condition to answer questions on the ESA50 correctly without help,
b) failure to self-report because of lack of insight into their condition,
c) inability to self-report because of difficulties with social interaction and expression,
d) inability to self-report because they are confused by their symptoms,
e) inability because of their condition to describe its effects properly,
f) difficulty in concentrating and in understanding the questions asked,
g) unwillingness to self-report because of shame or fear of discrimination,
h) failure to understand the need for additional evidence because of cognitive difficulties,
i) problems with self-motivation because of anxiety and depression which may prevent them approaching professionals for help and assistance,
j) false expectation that conditions will be understood without them needing additional help, and
k) lack of understanding that professionals named in the form will not automatically be contacted in the assessment process.
ii) in terms of further aspects of the process for the determination of their entitlement to ESA, claimants with MHPs as a class have or have to face the following problems and difficulties because of their MHPs:
a) particular conditions (e.g. agoraphobia and panic attacks and autism spectrum disorder) make attending and/or travelling to a face-to-face assessment difficult,
b) finding the process itself intimidating and stressful, and, in some cases, that having a long-lasting negative effect on their condition,
c) a desire to understate conditions,
d) the masking of health problems as physical problems,
e) dealing with assessors who have little or no experience of mental health problems,
f) the difficulties of identifying many symptoms of a condition and its impact on what a person needs without proper training and knowledge,
g) the lack of time during a short assessment to identify a person's needs,
h) fluctuation in condition, and
i) scepticism about the condition."
"In our judgment, the present practice relating to FME, has the result that in a significant number of claims by claimants with MHPs the existence and impact of the difficulties result in those claimants, and thus that class of claimants, being placed at a disadvantage that is more than minor or trivial and/or suffering an unreasonably adverse experience:
i) by being required to complete an ESA50 when this is not needed,
ii) in the completion of the ESA50,
iii) by being required to attend a face-to-face examination / assessment when this is not needed,
iv) during a face-to-face examination / assessment, and
v) during the final decision-making process and the communication of that decision by the DWP decision-maker.
In our judgment, if appropriately directed FME was made available earlier in the decision-making process in respect of claims by claimants with MHPs, it is likely that, in a significant number of such claims:
i) the HCP would be better informed before requiring an ESA50 and at the face-to-face examination / assessment, with the result that the decision-making process in respect of the class, and the way in which it is perceived by claimants with MHPs as a class, would be improved because the Difficulties would be better addressed and so avoided or reduced, and
ii) the DWP decision-maker would also be better informed in his or her assessment of the claim, the recommendations of the Atos HCP and his or her approach to the acknowledged vulnerabilities and difficulties of claimants with MHPs as a class and so individuals within it."
Reasonable adjustments and the Equality Act
"The 1995 Act, however, does not regard the differences between disabled people and others as irrelevant. It does not expect each to be treated in the same way. It expects reasonable adjustments to be made to cater for the special needs of disabled people. It necessarily entails an element of more favourable treatment…..It is common ground that the 1995 Act entails a measure of positive discrimination, in the sense that employers are required to take steps to help disabled people which they are not required to take for others."
And the purpose of this is, as Sedley LJ noted in Roads v Central Trains Ltd  EWCA Civ 1541 at para 30:
"so far as reasonably practicable, to approximate the access enjoyed by disabled persons to that enjoyed by the rest of the public."
"20. Duty to make reasonable adjustments
(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.
(2) The duty comprises the following three requirements.
(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid."
"(2) For the purposes of this paragraph, the reference in section 20(3), (4) or (5) to a disabled person is to disabled persons generally."
Second, para 2(5) provides a specific definition of what constitutes a "substantial disadvantage" in this field of operation:
"(5) Being placed at a substantial disadvantage in relation to the exercise of a function means—
(a) if a benefit is or may be conferred in the exercise of the function, being placed at a substantial disadvantage in relation to the conferment of the benefit, or
(b) if a person is or may be subjected to a detriment in the exercise of the function, suffering an unreasonably adverse experience when being subjected to the detriment..."
"(1)A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.
(2)A discriminates against a disabled person if A fails to comply with that duty in relation to that person.
(3)A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise."
The proceedings for enforcing breach
Grounds of appeal
Could the court grant a remedy to these claimants?
Was there evidence to justify the finding of substantial disadvantage?
Is an unreasonably adverse experience a relevant substantial disadvantage?
Did the Tribunal overstep its powers?
"142. As we have mentioned earlier, it was common ground that a number of factors fall to be taken into account in determining what steps it is reasonable for a provider to take to avoid a substantial disadvantage (see paragraph 89(vii) above).
143. The relief to be granted. We also acknowledge that the court and not the DWP is the ultimate statutory decision-maker under the Equality Act and so the judicial review approach of remitting the decision to the relevant statutory decision-maker is not appropriate.
144. It was argued that, as in a claim in the County Court, on the evidence before us we should make a finding on what the reasonable adjustment should be and order the SSWP to implement it. We accept that we could do this on this claim for judicial review and that in many cases this is what the county court and the judicial review court, as the decision-maker under the Equality Act 2010, can and should do.
145. But, in our judgment, it is also open to the court to adjourn to obtain more evidence to determine what is or is not reasonable and that this may often be the appropriate course for it to take before deciding what steps it should order the provider to take in performance of the statutory duty, to make reasonable adjustments."
"We have concluded that before we make a final determination and order as to the reasonable steps the SSWP should have taken or is to take to avoid the substantial disadvantages we have found to exist, the SSWP should be directed to carry out an investigation / assessment within a defined time as to how the Evidence Seeking Recommendation, as we understand it (see paragraphs 70(v) to (viii), 72 and 73 above) could be implemented. Without it, we are not in a position to reach a properly informed decision, with sufficient particularity, on what reasonable steps the SSWP should have taken or should be ordered to take."
"By 3 July 2013 the SSWP is to carry out an investigation / assessment (that does not involve him undertaking any step that he wishes to argue it is not reasonable for him to take as a step to avoid the Substantial Disadvantages because such step is resource-intensive or for any other reason) and by reference thereto is to file such further evidence as he wishes to rely on in respect of the Reasonableness Issue that, without prejudice to the generality of the foregoing:
i. develops, particularises and supports any case he wishes to advance that it is not reasonable for him to implement in whole or in part the ESR or to take any steps in accordance with that recommendation and its purpose (as set out in paragraphs 70(i), (v) to (viii), 72, 73, 163 to 167 of the judgment) to change the Present Practice.
ii. addresses the matters identified in paragraph 169 of the judgment, and
iii. addresses with particularity what pilots or trials (if any) the SSWP proposes to carry out to assess the likely value or impact of any changes he proposes to make to the Present Practice, and in general terms the nature of pilot(s) and trial(s) that could be carried out to assess the likely value or impact of an implementation of the ESR, and why he has decided not to carry any of them out."
"The Applicants must identify an adjustment that has a real prospect of remedying the established disadvantage they rely on in such detail that it informs the SSWP of the case he has to meet and to engage the question and the passing of the burden on whether that adjustment can reasonably be made."
Lord Justice Vos:
Lord Justice Maurice Kay: