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VICTORIA REID FOR JUDICIAL REVIEW [2022] ScotCS CSOH_56 (18 August 2022)
URL: http://www.bailii.org/scot/cases/ScotCS/2022/2022_CSOH_56.html
Cite as:
[2022] ScotCS CSOH_56,
[2022] CSOH 56,
2022 GWD 27-383,
2022 SLT 1377
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OUTER HOUSE, COURT OF SESSION
[2022] CSOH 56
P748/21
OPINION OF LORD ERICHT
In the Petition of
VICTORIA REID
Petitioner
for
Judicial Review of the Scottish Ministers public appointments policy in relation to
disabled applicants
Petitioner: Dailly, Sol-Ad; Drummond Miller
Respondent: McGuire, Scottish Government Legal Directorate
Interested party: Webster QC, Office of the Solicitor to the Advocate General
18
August 2022
Introduction
[1]
The petitioner seeks judicial review of the Scottish Ministers' public appointment
policy in relation to disabled applicants. In particular, it seeks judicial review of the policy
that, in the words of paragraph 3 of the petition, "[the petitioner's] application could not be
progressed unless she was able to commit to two days tribunal work per month (hereinafter
referred to as the `two days policy')."
[2]
The petitioner seeks the following orders:
"(i) Declarator that in exercising its functions under the Men tal Health (Care
and Treatment) (Scotland) Act 2003, the respondent's two days policy
2
unlawfully discriminated against the petitioner as a disabled person in terms
of the Equality Act 2010 et separatim was irrational and Wednesbury
unreasonable;
(ii) Declarator that the respondent's failure to make any reasonable
adjustments to its two days policy for disabled persons such as the petitioner
was unlawful in terms of sections 19, 20, 29 and 50 of the Equality Act 2010.
(iii) Declarator that in exercising its functions under the Mental Health (Care
and Treatment) (Scotland) Act 2003 the respondent failed to comply with its
duties under sections 1 and 149 of the Equality Act 2010 by the rigid
application of its two days policy to the petitioner.
(iv) reduction of the respondent's decision of 21 June 2021 insofar as it refuses
to permit the petitioner to apply to become a general member of the Mental
Health Tribunal for Scotland unless she can comply with the respondent's
two days policy;
(v) an order under the Court of Session Act 1988, section 45(b), for specific
performance of the respondent's duty to revise its two days policy in
compliance with the Equality Act 2010;"
[3]
As can be seen from the declarators sought, the petitioner has formulated her case as
Wednesbury unreasonableness and also as breach of various statutory provisions.
However, each of these formulations has as its foundation the petitioner's claim that she
would lose her entitlement to Employment Support Allowance ("ESA") if she worked more
than one day a month.
The factual circumstances
[4]
The petitioner has a commendable desire to engage in public service by becoming a
general member of the Mental Health Tribunal for Scotland ("MHTS").
[5]
In 2021 the respondents were recruiting for MHTS members.
[6]
On 14 June 2021 the petitioner emailed the respondents' recruitment mailbox in the
following terms:
3
I am interested in applying for the post: General Member - Mental Health
Tribunal for Scotland, ref. 3938.
I would apply as a general member with experience of a mental disorder and
of using mental health services. .......
I wonder what time commitment the job would entail?
(Presently I am receiving Employment and Support Allowance, a benefit
which limits me to a maximum of 16 hours/week paid work and an income
ceiling of £143/week. I see that the daily rate of the post well exceeds this
allowance.)
Please do send me out an application pack..."
[7]
The respondents' Mr Merrill replied the same day enclosing an application pack and
stating:
"Thank you for your interest in the General Member vacancy of the Mental
Health Tribunal for Scotland. Whilst the estimated time commitment is 2
days per month, there is no guaranteed number of allocated days. Time
committed per day varies with each case."
[8]
On 20 June the petitioner emailed Mr Merrill:
"The post of General Member interests me very much. However, as I am on
Employment Support Allowance at present, and need to stay within the
earning threshold of this benefit, I could only commit to one day per month.
Would this preclude me from being considered?"
[9]
Mr Merrill replied on 21 June:
"This vacancy requires two days of availability per month. We unfortunately
cannot progress your application if you can't commit to at least two days per
month at this stage."
[10]
On 30 June 2021 the petitioner emailed the respondents' Tribunals and
Administrative Justice Policy mailbox in the following terms:
"Subject: query re. disability members of MHTS and SSTS
Sir / Madam,
I am on the benefit Employment and Support Allowance due to a mental
health condition, and am considering applying for a post as general member
of the MHTS, for which the first eligibility criteria is a person who has
experience of a mental disorder and of using services provided in relation to
mental disorder.
Can you please clarify for me the following:
Is income earned as a disability member of a mental health tribunal taken into
account for the purposes of Employment and Support Allowance?
4
Is income earned as a disability member of a social security tribunal or any
other tribunal taken into account for the purposes of Employment and
Support Allowance?"
[11]
The respondents' Lauren Keillor replied on 1 July:
"The Scottish Government cannot provide any specific advice as to whether
or not the MHTS would fall under the ESA's `permitted work' scheme; more
information on which and how you can submit the relevant application for
this can be found here Permitted work: factsheet - GOV.UK (www.gov.uk).
You may wish to talk to the DWP or your Jobcentre plus contact in advance
of applying to clarify this matter. In doing so, you may wish to tell them that
the MHTS is not currently in the First-tier Tribunal for Scotland (FTT). It is
expected to transfer to the FTT in 2022."
[12]
The petitioner did not apply for the post.
[13]
As explained in further detail below, there is an exemption which allows members of
English and UK tribunals to work for one day (or two half days) a week while in receipt of
ESA, but that exemption does not apply to Scottish tribunals. On 15 March 2022 the Scottish
Minister for Community Safety wrote to the UK Minister for Disabled People, Health and
Work. The letter stated, inter alia:
" I am writing today to formally request an amendment to the Employment
and Support Allowance Regulations 2008 (the 2008 Regulations) and the
Employment and Support Allowance Regulations 2013 (the 2013 Regulations)
to address an apparent omission in the exempt work provisions of the
regulations....
There is no equivalent provision [to the exemption for English/UK tribunal
members] for general members of the First-tier Tribunal or Upper Tribunal
of the devolved Scottish Tribunals, or the MHTS..... We do not believe that
there is any objective justification for this difference in treatment, and are of
the view that the omission of devolved Tribunal members may well have
been an oversight.
A constructive meeting took place on 25 January 2022 between my officials
and UK Government colleagues regarding the issues related to the judicial
review. Following the meeting, agreement was reached that there is an
omission of devolved tribunal members from the exempt work provisions of
the Regulations, and a willingness to consider a formal request for
amendment of the Regulations was confirmed by UK Government
colleagues.
5
Given the lack of any objective justification for the difference in treatment of
devolved tribunal members who are in receipt of ESA and meet the eligibility
criteria set out in the 2008 Order, the current Judicial Review (which, in part,
concerns this issue), and our forthcoming plans to undertake a substantial
recruitment of general members to the Social Security Chamber of the First
Tier Tribunal in Scotland later this year, I am writing now to request that you
give urgent consideration to amending both the 2008 and 2013 ESA
Regulations to extend the exempt work provisions to devolved First and
Upper-tier tribunal members."
[14]
The UK Minister replied on 20 April 2022 stating:
" Thank you for your letter on the 15th March 2022 regarding a request for
the Department to make an amendment to Employment and Support
Allowance (ESA) Regulations.
I am unable to offer a full response at present as we are still considering this
issue and enquiries are taking longer than anticipated. I will, of course,
provide a response as soon as possible."
[15]
In view of the exchange of correspondence between the Scottish and UK ministers I
ordered that intimation of the petition be given to the Advocate General, and invited
counsel for the Advocate General to address me on certain matters for the benefit of the
court.
Submissions for the petitioner
[16]
The Solicitor Advocate for the petitioner submitted that if the exemption covered the
devolved tribunals the issue in this case would not arise, and also accepted that the matter
was under review by the UK Government but submitted that a decision required to be made
on the basis of the current law.
[17]
The Solicitor Advocate submitted that as a person in receipt of ESA and disability
benefits the petitioner was unable to work more than 16 hours per week or earn more than
£143 per week or £619.66 in any monthly work cycle in terms of the 2008 Regulations. The
Department for Work and Pensions guidance allowed for working hours to be averaged out
6
over a work cycle which would allow the petitioner to earn up to £619.66 per month
(para 4.12.14). In certain circumstances permitted hours could be averaged over five weeks
where there was no recognisable work cycle, which would give a threshold of £715 in a five
week period. The fee for general members of the MHTS is £423.71 per day so two days
payment per month of £845.42 in total would have meant the petitioner would lose her ESA,
with no guaranteed income from the MHTS.
[18]
The Solicitor Advocate submitted that the two days policy indirectly discriminated
against the petitioner contrary to sections 19, 20 and 29 of the Equalities Act 2010. Further,
the two days policy discriminated against the petitioner contrary to section 50 of the
2010 Act. The respondents ought to make reasonable adjustments to their two days policy
to prevent discrimination against disabled persons. (Archibald v Fife Council
the respondents failed to comply with their duties under sections 1 and 149 of the 2010 Act
in relation to their two days policy. Finally, he submitted that the respondents should revise
their two days policy so as to be compliant with the 2010 Act.
[19]
In response to the respondents' argument that the petitioner had failed to exhaust
her remedies, the Solicitor Advocate submitted that this petition also raised issues of
Wednesbury irrationality which could only be addressed in a Judicial Review and not by the
Employment Tribunal.
Submissions for the respondents
[20]
Counsel for the respondents submitted that the petitioner had an alternative remedy
of commencing proceedings in the Employment Tribunal in relation to alleged breaches of
section 19 and section 20 of the Equalities Act 2010 and the court should not exercise its
7
supervisory jurisdiction in relation to that allegation (R on the application of(1) Good Law
Project Ltd (2) Runnymede Trust v The Prime Minister and The Secretary of State for Health and
Social Care [2022] EWHC 298(Admin)). An application to the supervisory jurisdiction was
not available where the issue could be raised under another enactment unless special or
exceptional circumstances were averred (rule of court 58.3.1: BBC and others petitioners 2020
SLT 345 at para 36).
[21]
Counsel further submitted that the petitioner had not suffered indirect
discrimination in terms of section 19 of the 2010 Act. The petitioner had not established that
she was a disabled person under section 6 of the 2010 Act nor that the minimum
commitment of availability for two days per month put her at a particular disadvantage
when compared to persons who were not disabled. The petitioner had not averred an
appropriate pool for comparison. Even if she were to work one day per month on the
Tribunal, her daily earnings of £422.71 would affect her eligibility for ESA. Any
disadvantage caused to the petitioner had been caused by lack of an exemption for the
Scottish Tribunal.
[22]
Counsel further submitted that even if the petitioner had satisfied the requirements
of section 19(2)(a-c) of the 2010 Act, the estimated minimum time availability for general
members of the MHTS of two days per month was a proportionate means of achieving a
legitimate aim in terms of section 19(2)(d). The respondents have the legitimate aim of
ensuring the effect of a proper running of a properly resourced MHTS. The two days
availability each month was necessary to ensure members established and maintained the
skills and experience required to exercise the functions as a member effectively, and to allow
the MHTS to discharge its functions efficiently, including in relation to short notice hearings,
and ensure a fair and reasonable distribution of work among members. Counsel further
8
submitted that the respondents were not in breach of a duty to make reasonable adjustments
in terms of section 20. The petitioner did not make a request for reasonable adjustments in
respect of the application process, but sought to alter the terms of appointment, despite not
making an application, in the erroneous belief that a change to the terms of her appointment
would mean that she would continue to be eligible for ESA, which was not the case.
[23]
Further, the petitioner had not established that the minimum commitment of
availability for two days per month would put her at a substantial disadvantage compared
to persons who were not disabled. If she sat for two days per month her earnings would be
in the region of £845.42 which would make her significantly financially better off compared
with the amount of ESA she would receive if she did not sit. Any disadvantage caused to
the petitioner by absence of an exemption sitting at a Tribunal was not within the control of
the respondents. Further the adjustments sought were not reasonable. Her eligibility for
ESA would be affected even if she only worked one day per month for MHTS. The
inflexibility flowing from the petitioner being able to make a minimum time commitment of
only one day over a four or five week period would have significant implications on
MHTS's ability to properly induct and train the petitioner to a sufficient standard to allow
her to sit as a member. The aim of the two day requirement was primarily to ensure high
quality decision making by the Tribunal, ensure statutory requirements throughout the
hearing were met, and ensure the best possible service for users: infrequent sitting and lack
of availability for training/multiple day or continued hearings would impact on the
effectiveness of the members.
[24]
In respect of the petitioner's section 50 case, counsel submitted that the petitioner
failed to exercise her alternative remedy of bringing a claim in the Employment Tribunal,
and in any event had not specified the alleged breaches of section 50.
9
[25]
Counsel further submitted that the duty under section 1 of the 2010 Act did not arise.
This applies when an authority is making strategic decisions about how to exercise its
functions section 1(1) and does not apply to the petitioner's complaint of a single decision
taken in relation to an application process. Esto it does arise, that the respondents had
complied with the duty. The recruitment process reflected the requirement under
regulation 2 of the Mental Health Tribunal for Scotland (Appointment of General Members)
Regulations 2004 that a general member shall be a person who has experience of a mental
disorder and of using services in relation to a mental disorder. The MHTS has members
who have a disability across each type and the two day requirement had not provided any
impediment to this.
[26]
In respect of the petitioner's argument on the public sector equality duty in
section 149 of the 2010 Act, counsel submitted that the duty did not arise separately in the
circumstances of the case as the petitioner had not made an application for the position and
therefore the respondents had not made a decision to refuse her application R (Leighton) v
Lord Chancellor [2020] EWHC 336(Admin) para 86). Esto the duty did arise, the respondents
accepted that they did not have due regard to the matter set out at section 149(1)(a-c) of the
Equality Act 2002 however in conducting the recruitment exercise the respondents
specifically sought to include persons with experience of a mental disorder so the
respondents had carried out an internal review. It was unlikely that an application of the
PSED would have made any material difference to the outcome in the present circumstance
and further, and the review had identified several recommendations to avoid a similar
situation in the future.
10
[27]
Counsel further submitted that the respondents had not acted irrationally or
unreasonably in a Wednesbury sense: the minimum requirement of two days availability
per month for work on the MHTS was not unreasonable nor irrational.
[28]
Finally, counsel submitted that if the respondents were found to be in breach of the
2010 Act, the appropriate remedy would be declarator and not reduction or specific
performance.
Submissions for the Advocate General
[29]
Counsel for the Advocate General, who appeared for the assistance of court,
explained that the position in respect of exemption under the EWA regulations for members
of Scottish Tribunals was under review by the UK Government. He submitted that the
current petition was a challenge to the Scottish Ministers, and the court should determine
that challenge and not the issue between the Scottish and UK Government as to the
exemption. ESA was assessed weekly if the income for that week is more than £152 then
ESA is not available for that week. For that week, the petitioner would not get the ESA but
instead would get the money which they had earned for sitting in the Tribunal.
Analysis and decision
[30]
This is a petition for judicial review of the Scottish Minister's public appointments
policy in relation to disabled applicants, in particular the two days policy, i.e. the
requirement for the applicant to commit to two days' work per month.
[31]
ESA is an allowance which is payable where a claimant has limited capacity to work
and certain other conditions are met. The statutory provisions in respect of ESA can be
11
found in the Welfare Reform Act 2007 ("the 2007 Act") and the Employment and Support
Allowance Regulations 2013 (the "2013 Regulations").
[32]
For present purposes, there are two important principles underlying the ESA which
can be drawn from the wording of the primary and secondary legislation.
[33]
The first principle is that ESA is payable in respect of a week. That can be seen from
section 1(5) of the 2007 Act which states:
"An employment and support allowance is payable in respect of a week"
It can also be seen from the various references to a week in the Regulations.
[34]
The second principle is that the claimant is not entitled to claim ESA and work.
[35]
Both of the principles are explicitly stated in Regulation 37 of the 2013 Regulations:
"37- A claimant who works to be treated as not entitled to an employment and
support allowance
(1)...a claimant is to be treated as not entitled to an employment and support
allowance in any week in which that claimant does work"
[36]
There are however a number of exceptions to the second principle.
[37]
One of the exceptions is for certain kinds of public service. Regulation 37(2) provides
that Regulation 37(1) does not apply to the activities listed in Regulation 37(2). The list
includes public service work as a local councillor in England and Scotland (Reg 37(2)(a)). It
also includes public service for either one day or two half days a week as a member of an
English or UK Tribunal (Reg 37(2)(b)). However, there is no such exception for public
service as a member of a Scottish tribunal.
[38]
The distinction between the members of English/UK and Scottish tribunals is one
which may be difficult to justify. ESA applies throughout the UK, and it is difficult to see
why a member of an English or UK Tribunal should be entitled to an exemption for one
day's (or two half day's) work but a member of the equivalent Scottish tribunal should not
12
be. The difficulty may be particularly acute in respect of the Mental Health Tribunal for
Scotland as there is a legal requirement for the appointment of members who have
experience of mental disorder or of using services provided in relation to mental disorder
(Mental Health Tribunal for Scotland (Appointment of General Members) Regulations 2004
Regulation 2(a)). Counsel for the Advocate General did not seek to justify that distinction
but restricted himself to explaining that in the light of the matter being raised the UK
Minister would review it, and that if there is to be a change then due to the procedures
involved to change the regulations and parliamentary time it would take into the new year.
[39]
This is not a judicial review of the UK government in respect of the distinction
between English/UK and Scottish tribunal members as it exists at present, nor is it a judicial
review of the outcome of the UK Minister's review, whatever that may be. These are not
matters for this court under the present petition, and they h ave not been argued before me.
In this petition I require to deal with the petitioner's challenge to the Scottish Ministers'
public appointments policy on the basis of the Regulations as they currently stand.
[40]
Another of the exceptions, and the one which is relevant to the petitioner's challenge,
is the exemption for limited part time work. Regulation 37(2)(f) of the 2013 Regulations
provides that Regulation 37(1) does not apply to "any of the categories of work set out in
regulation 39(1) (exempt work)". Regulation 39(1)(3) sets out the following category:
"work which is done for less than 16 hours a week, for which earnings in any week
do not exceed 16 multiplied by the National Minimum Wage ...."
[41]
Two points are immediately apparent from that wording.
[42]
Firstly, the exemption relates to a week. The limit in respect of hours is expressed as
a number of hours a week, and the limit in respect of earnings is expressed as earnings "in
any week". That is consistent with the principle that ESA is payable in respect of a week.
13
[43]
Secondly, the hours limit and the earnings limit are not alternatives. In order for the
exemption to apply, both must be satisfied. So if the earnings limit is exceeded then it does
not matter whether the number of hours which it took to earn that amount is less or more
than 16 hours: for the exemption to be disapplied it is enough that the earnings limit has
been exceeded.
[44]
It is helpful to put a figure on the earnings limit, which is expressed as a formula of
16 times the national minimum wage. The national minimum wage is currently £9.50 so the
current earnings limit is £152. The daily fee for a general member of the MHTS is £423.71.
That means that even if the member sat for only one day in a particular week, the earnings
limit would be exceeded and the member would lose ESA for that week. There is nothing
unfair to the member about that: the member would be £271.71 better off for that week. If
the member sat for two days that week, the member would be even better off: the member
would lose the ESA for that week but receive two days fee so would be £695.42 better off.
[45]
Indeed, in certain circumstances the member might be even better off than that and
might be able to retain both the two days fee for that week and the ESA for that week. The
Department of Work and Pensions has a discretion to average out weekly income in certain
circumstances. Regulation 79(5) of the 2013 Regulations provides:
"(5) Where the amount of the claimant's income fluctuates and has changed
more than once, or a claimant's regular pattern of work is such that the
claimant does not work every week, the foregoing paragraphs may be
modified so that the weekly amount of the claimant's income is determined
by reference to the claimant's average weekly income--
(a) if there is a recognisable cycle of work, over the period of one
complete cycle (including, where the cycle involves periods in which
the claimant does no work, those periods but disregarding any other
absences);
14
(b) in any other case, over a period of five weeks or such other period
as may, in the particular case, enable the claimant's average weekly
income to be determined more accurately."
[46]
Depending on whether and how the Department for Work and Pensions exercises
that discretion, it may be that a member of the MHTS would be able to sit for two days per
week or month without losing ESA. The averaging need not be over a set period of five
weeks, but may be over another period which in the particular case of the claimant, enables
the claimant's average weekly income to be determined more accurately. It is premature to
speculate to what the appropriate period would be in respect of a particular member of the
MHTS as this will depend on how frequently that person sits as a member.
[47]
In my opinion, the petitioner's criticism of the two days policy is misconceived. It is
not the case, as the petitioner contends, that ESA is available when sitting as a member of
the MHTS for one day but is lost by sitting for a second day. Entitlement to ESA for the
week is lost by sitting as a member for just one day. Sitting for a second or further days that
week makes no difference: ESA is already lost. That misconception is the foundation for all
the challenges to the two days policy, whether they are formulated as Wednesbury
unreasonableness or statutory breaches. That misconception goes to the heart of all the
remedies which the petitioner seeks, and the petitioner's case must fail.
Order
[48]
I shall sustain the respondents' first, third and fourth pleas in law and dismiss the
petition.
