Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER

ON TRANSFER FROM THE ADMINISTRATIVE COURT

                                                                                                         JR/2638 & 2639/ 2012

                                                                                                         CO / 2385 / 2012

 

Before:

 

Mr Justice Charles and Upper Tribunal Judges Edward Jacobs and Shelley Lane

 

 

Attendances:

 

Nathalie Lieven QC and Tim Buley (instructed by Public Law Project) for the Applicants

Martin Chamberlain QC and Katherine Apps (instructed by TSol) for the Respondent

Richard Drabble QC and David Blundell (instructed by Clifford Chance LLP) for the First to Third Interveners

Catherine Casserley (instructed by the Fourth Intervener) for the Fourth Intervener

 

 

Decision: 

 

(1)  The claims are dismissed.

(2)  Any application for costs is adjourned to a date to be fixed.

 

 

 

 

REASONS FOR DECISION

 

1.            This decision follows on from the Upper Tribunal’s decision in MM and DM v Secretary of State for Work and Pensions [2013] UKUT 259 (AAC) and the Court of Appeal’s decision in Secretary of State for Work and Pensions v R (on the application of MM and DM) [2013] EWCA Civ 1565.

2.            This stage of the proceedings was heard by way of oral hearing on 7^th and 8^th July 2014 at the Royal Courts of Justice.  Since the hearing we have received and asked for further evidence and submissions.  This process ended on 10 December 2014. 

The previous round

3.            The applicants, who suffer from mental health problems, brought their claims for judicial review under the Equality Act 2010 (‘the Equality Act’) asserting that they were placed at a substantial disadvantage in comparison to claimants and recipients of Employment and Support Allowance (‘ESA’) who did not suffer from mental health problems in relation to (i) the processes of assessment and re-assessment for continuing entitlement to that benefit or, alternatively (ii) the process of assessing whether an existing entitlement to Incapacity Benefit would continue as an award of ESA.  We refer to the latter as ‘conversion’. These processes generally require claimants to fill in a self-assessment questionnaire (‘ESA50’) and attend a medical examination (‘face-to-face interview’) for the purposes of the Work Capability Assessment performed under the Employment and Support Allowance Regulations 2008.

4.            The difficulties that those with mental health problems have with the ESA process include filling in the forms for Work Capability Assessment and attending the face-to-face interview.  These may cause these claimants considerable anxiety and/or depression.  Since this class of claimant tends to lack insight into their condition, they might find themselves called to a face-to-face interview unnecessarily because they failed to identify and explain their problems well enough on the ESA50.  The applicants argued that these disadvantages could be avoided if the Department for Work and Pensions (the Department) obtained further medical evidence about them from relevant practitioners at an earlier stage.

5.            The Secretary of State accepted that, because he carried out public functions, he was under a duty under section 29(6) of the Equality Act not to discriminate in the exercise of those functions, which included the administration of the Work Capability Assessment through the Department’s independent medical contractor.  At the relevant time, that contractor was Atos (and we shall refer to the contractor as Atos although we understand that a change has now been negotiated).

6.            He also accepted that, as a person carrying out a public function, section 29(7) of the Equality Act prima facie imposed a duty on him to make reasonable adjustments to accommodate disabled persons if a provision, criterion or practice he operated for the purposes of ESA placed, places or will place them at a substantial disadvantage in comparison to claimants without mental health problems.  He argued, however, that he did not operate a provision, criterion or practice which put claimants with mental health problems as a class at a substantial disadvantage and alternatively that he had not failed in his duty to make reasonable adjustments to accommodate their disadvantage.  Additionally, and in any event, he argued that there was no discrimination against these particular applicants.

What is a disability?

 

7.            Disability is defined under section 6 of the Equality Act which is, as relevant to this appeal, as follows:

6. Disability

1        A person (P) has a disability if—

 

(a)      P has a physical or mental impairment, and

(b)      the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.

 

2        A reference to a disabled person is a reference to a person who has a disability.

 

3        In relation to the protected characteristic of disability—

 

(a)      reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability;

(b)      a reference to persons who share a protected characteristic is a reference to persons who have the same disability.

 

‘Substantial’ is defined in section 212 to mean ‘more than minor or trivial’. 

8.            It is immediately apparent that the use of the global description ‘mental health problem’ is apt to describe a very wide range of mental impairments, from severe psychosis to minor adjustment disorders.  Since ‘substantial’ merely means ‘more than minor or trivial’, an applicant may be able to succeed in a claim under the Equality Act even though the long term effect of his disability is small. 

Discrimination and the duty to make adjustments  

 

9.            A person who carries out public functions is under a duty to make reasonable adjustments to prevent a disabled person from being disadvantaged by the manner in which he carries those functions out.  This duty is both a continuing and anticipatory duty.  The duty is imposed by Schedule 2, paragraph 2 whilst the content of the duty is set out in section 20, and in particular, section 20(3) of the Equality Act.

       20 Duty to make 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 disabled persons generally 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.

…

 

10.         Paragraph 2(5) of Schedule 2 defines what being placed at a substantial disadvantage means and includes suffering an unreasonably adverse experience when being subjected to a detriment (we discuss this in our earlier decision).

11.         The first requirement has two elements:

i)             that there is a provision criterion or practice that puts disabled persons generally at a substantial disadvantage, and

ii)            reasonable steps can be taken to avoid that disadvantage.

12.         The decision of the Court of Appeal in this case is to the effect that to establish discrimination, the duty to the class of disabled persons generally is then narrowed down to an individual level under section 21(2):

21. Failure to comply with duty

 

(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. [italics added]

 

(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.

 

13.         At the discrimination stage the claimant needs to show that the failure to comply with the anticipatory duty to make reasonable adjustments is disadvantageous or detrimental to him (see for example Finnigan v Chief Constable of the Northumbria Police [2013] EWCA (Civ) 1191, [2014] 1 WLR 445; in particular the last two sentences of paragraph 45 of the judgment).

14.         The determination of what is reasonable for “A” to do to avoid a substantial disadvantage to a class may be a relatively straightforward matter when the adjustment asserted to be reasonable is, for example, building a ramp so that a disabled person may access premises.  It is a very different matter when the step said to be reasonable for this purpose requires significant adjustments to a benefit such as the ESA scheme contained in complex legislation enacted by Parliament following scrutiny and debate. Altering the way in which a benefit is administered may have knock-on effects elsewhere in the system.  Some of these may be easily foreseen whilst others may be difficult to anticipate or identify. Obvious effects may include, for example, unacceptable delays in making decisions on benefit not only for claimants with mental health problems, but for claimants generally and the re-negotiation of contractual terms with third parties such as Atos and other health care practitioners who find themselves bound to provide reports on patients.  These costs will be paid from the public purse and require economies to be made elsewhere, having a profound impact on social economy. 

15.         The courts are, nevertheless, required to answer the questions posed by the Equality Act, and in the previous round, we decided that claimants with mental health problems were a class of disabled people placed at a substantial disadvantage in the ESA process so that a prima facie case for making reasonable adjustments in respect of them arose under section 20(3).  Accordingly we decided against the Secretary of State on the applicability of the first element of the first requirement.

16.         Having found that there were facts from which we could decide, in the absence of any other explanation, that the Secretary of State contravened a provision of the Equality Act, we were required by section 136 of that Act to hold that a contravention had occurred.  This had the further result under section 136 of shifting the burden of proof to the Secretary of State, requiring him to show that he had not failed to comply with a duty to make reasonable adjustments. 

17.         At the previous stage, the applicants submitted that a reasonable adjustment could be made based on the ‘evidence-seeking recommendation’ proposed by Professor Harrington who was, at the material time, the independent reviewer of the Work Capability Assessment appointed under section 10 of the Welfare Reform Act 2007.  The recommendation is in his third report in November 2012 (‘Harrington 3’). 

18.         As adapted to mental health cases, the ‘evidence-seeking recommendation’ would require Atos and the Department’s decision makers, to consider whether it was necessary to seek further medical evidence at an early stage of the assessment process for claimants who suffer from mental health difficulties.  If it was decided not to seek such evidence, the evidence-seeking recommendation decision would have to be justified in writing. 

19.         We considered the proposal in that form to be too general to be accepted as a reasonable adjustment.  The Department was, moreover, in the process of disengaging from its contract with Atos, though one area of continuing engagement related to the feasibility and pilot-testing of schemes for obtaining further evidence for ESA claimants with mental health difficulties.  Moreover, it was possible that Professor Harrington’s successor, Dr Litchfield, might have very different views on the right way forward. 

20.         With these uncertainties in mind, we wanted to ensure that the Secretary of State provided us with evidence on which we could reach a properly informed view on whether there were steps that it would be reasonable for the Secretary of State to take to avoid the substantial disadvantages we had identified.  To this end we ordered the Secretary of State to undertake an investigation of the changes that could be made to the Department’s current practices in order to avoid the disadvantages we had found to exist.  On appeal by the Secretary of State, the Court of Appeal decided that the Upper Tribunal had exceeded its powers by ordering the Secretary of State to investigate or assist in the determination of steps that might be reasonable to remedy the disadvantage to those with mental health difficulties that we had identified.  The Court of Appeal held that it was up to the applicants to set out the adjustments they considered reasonable.  It was then up to the respondent to show that those adjustments were not reasonable. 

Post Court of Appeal - the issues as clarified

 

21.         Applying the approach set by the Court of Appeal the live issues were identified as being:

i)             Had either of the individual claimants shown that the respondent was in breach of duty to him or her as opposed to disabled claimants as a class?    

ii)            Were any of the proposed adjustments reasonable?

iii)          What remedy, if any, was appropriate?

 

and the parties put in further evidence and material directed to those issues.

 

22.         Ironically but unsurprisingly the evidence put in by the Secretary of State coincided with what we had incorrectly ordered him to put in and he sought an adjournment to enable him to run a pilot in respect to possible changes post-ESA50. 

23.         We say unsurprisingly because as confirmed by Finnigan (see paragraph 42 of the judgment) it is of critical importance that the relevant public authority provides the court or tribunal with evidence on the adjustments it has made, or on why no adjustments would be reasonable at a particular time or ever, or on the steps it is taking to fulfil its anticipatory duty to found, for example, an argument that it would not be reasonable to take a step at a given time because it needed to be trialled first.  This is particularly so where, as here, the relevant issues engage the operation of a scheme that relates to a wide range of people, has wide impact and any changes to which would, as a matter of good administration and government, involve consideration of political and financial issues, consultation and trialling.

The applicants’ proposed remedies and reasonable adjustments

 

24.         The applicants requested the following declarations: 

i)             that the respondent has breached its duty to make reasonable adjustments in favour of a class of disabled persons, namely people with mental health problems, by failing to put in place a process of proactively seeking further medical evidence in respect of Employment and Support Allowance claimants with mental health problems when such evidence is not supplied with the claim[1]; and

ii)            that an adjustment which it would be reasonable for the respondent to make in order to remedy the breach identified in (i) would involve the ‘evidence-seeking recommendation’ (as defined in [68] of the Upper Tribunal’s first judgment) and/or such other adjustment falling short of the evidence-seeking requirement, as the Upper Tribunal might identify in its judgment.

25.         They proposed a series of adjustments which, whether taken as a package or individually, they believed were reasonable to address the substantial disadvantage the Upper Tribunal found to exist in its earlier decision.  The applicants’ adjustments (prefixed ‘A’) are:

 

‘A1.  Before the applicant is requested to complete an ESA50 (the self assessment questionnaire which claimants are periodically required to complete for the purpose of assessing, reassessing, or converting IB, entitlement to ESA) -

 

further medical evidence must be actively considered and if not obtained that decision justified in writing if the information provided…indicates a previous suicide attempt, suicidal ideation or self-harm, or if the applicant has an appointee.

 

A2.  Before a decision is taken to conduct a face-to-face assessment -

 

further medical evidence must be actively considered and if not obtained that decision justified in writing if the information provided in the ESA50 read with the fit note indicates that:

 

i.              there is a real risk that the applicant is unable to engage effectively with the process;

ii.            there is a real risk of harm to the person if they were to attend a face-to-face assessment;

iii.           further medical evidence is likely to assist with the assessment, including the application of regulations 29 or 35 of the Employment and Support Allowance Regulations 2008 (the ESA Regulations 2008).

 

A3. Before the face-to-face assessment takes place -

 

further medical evidence must be actively considered and if not obtained that decision justified in writing if the information provided indicates that:

 

i.        the person is unable to engage effectively with the process;

ii.        further medical evidence is likely to assist with the assessment including the application of regulations 29 or 35 of the ESA Regulations 2008.

 

A4. After the face-to-face assessment takes place -

 

further medical evidence must be actively considered and if not obtained that decision justified in writing if the information provided indicates that:

 

i.        there is a real risk that the applicant has been unable to engage effectively with the process.

ii.       further medical evidence is likely to assist with the assessment and recommendation including the application of regulations 29 or 35 of the ESA Regulations 2008.

 

A5. Before the decision is made on the ESA claim -

 

further medical evidence must be actively considered and if not obtained that decision justified in writing if the information provided indicates that:

 

i.        there is a real risk that the applicant has been unable to engage effectively with the process;

ii.       further medical evidence is likely to assist with the assessment and recommendation including the application of regulations 29 or 35 of the ESA Regulations 2008.’

 

26.         The Equality and Human Rights Commission adopted the applicants’ proposals.  The Charity Interveners, however, put forward adjustments which were more far-reaching and which we are unable to accept.  We deal with this later.

The Secretary of State’s case

 

27.         Mr Chamberlain contended that:

i)             there has been no discrimination against either of the individual applicants and hence no breach of duty under 21(3) by the Secretary of State; and

ii)            if that is not accepted, then none of the applicants’ proposals are reasonable.

28.         He argued that, although the Secretary of State accepted that he has a duty not to discriminate in the exercise of his public functions and a duty to make reasonable adjustments in the exercise of his public functions, these duties are actionable only in so far as any conduct amounts to ‘discrimination’.  He submits that the content of the duty in the context of this case includes these elements:

i)         the respondent applies a provision criterion or practice (s. 20(3));

ii)        which puts disabled people generally at substantial (more than minor or trivial) disadvantage (as defined by Schedule 2 para (5) in comparison with people not disabled (s 20(3), Schedule 2 para 2(2)) [‘the class disadvantage’];

iii)      there is a duty to take such steps as it is reasonable to have to take to avoid the class disadvantage;

iv)      but the public authority ‘discriminates’ only if it fails to comply with that duty in respect of that person (21(2)and(3)) [‘the individual disadvantage’]

 

Insofar as these reflect a simple breakdown of the requirements of the Equality Act, we accept them as correct.

 

29.         Mr Chamberlain put forward a series of principles (prefixed ‘R’) by which the applicants’ proposals should be evaluated:

 

R1. There can be no declaration in these proceedings that the Secretary of State has breached his duty to make reasonable adjustments save to the extent that it is established that he has discriminated against at least one of the claimants. This follows from the Court of Appeal judgment at [50].

R2. If on the facts of the case an adjustment would make no difference, it cannot be a reasonable adjustment (Lancaster v TWBA Manchester UKEAT/0460/10/DA at [55]). Any adjustment has to be “tailored to the disadvantage in question” (Newham Sixth Form College v Sanders [2014] EWCA Civ 734 at [14]). In other words, there has to be a fit between the adjustment and the extent of the disadvantage.

 

R3. Any adjustment has to be identified so that the respondent has an opportunity to demonstrate by evidence that it is not reasonable:  Project Management Institute v Latif [2007] IRLR 579 at [55].  That is relevant because the claimants’ identification of the relief sought suggests that it may be open to the Tribunal to identify some other reasonable adjustment than those that have been identified by the Tribunal or claimants to date.

 

R4. Carrying out an assessment or pilot cannot in and of itself be a reasonable adjustment; reasonable adjustments are about practical steps that will prevent or mitigate the difficulties of disabled people (Spence v Intype Libra Ltd UKEAT/617/07 (unreported) at [43] & [48]).  This is because it cannot be known in advance if the results of any pilot would show the steps undertaken in it to be of any use.  This follows from the Court of Appeal’s judgment at [50]. 

 

R5. Following the Court of Appeal’s decision in Secretary of State for Work and Pensions v R (on the application of MM and DM) [2013] EWCA Civ 1565, it is not possible in any event for the Upper Tribunal to order a pilot. 

 

R6.The question whether a proposed adjustment is reasonable is an objective one for the Tribunal.  It is not a question of rationality.  The time at which the objective assessment falls to be undertaken must be the time of the alleged breach (Leeds Teaching Hospital v Foster [2011] EqLR 1075 at [20]).  It is therefore necessary to look at the evidence as it existed then.  Since MM and DM’s cases and actions pre-dated Harrington 3, it would mean that the suggestion of putting a burden on Secretary of State did not exist; indeed Harrington 2 said that the burden must be on claimant.  If the Upper Tribunal does not accept R5, it is open to look at the evidence now as it would have impacted at the earlier time.  If the Upper Tribunal accepted R5 in its unmodified form, the Upper Tribunal could make no order. 

 

Pausing there

 

30.         This identification of the issues includes a disagreement between the parties concerning whether the Court of Appeal was limiting us to deciding whether it would be, or would have been, reasonable for the Secretary of State to make one or more of the adjustments as defined by the applicants.  If we were limited in that way, we would be precluded from identifying from the evidence and argument advanced by the applicants any other adjustment(s) that we considered would be, or would have been, reasonable for the Secretary of State to make.

31.         With the proviso that the Secretary of State must have a fair opportunity to address any modification of an adjustment advanced by the applicants, we are of the view that the Court of Appeal was not limiting our task only to considering the adjustments suggested by the applicants construed strictly.  We understood that this was accepted on behalf of the Secretary of State through the submission that we could consider what was fairly ‘on the menu’. This provides flexibility governed by the principle of fairness.  A contrary conclusion would be analogous to one that on a rent review the court or tribunal could only make a finding that one of the amounts advanced was the rent to be paid, rather than finding that the rent was within the range of the rival contentions.  Returning to the example of a ramp it seems to us that the approach of the Court of Appeal cannot mean that if the reasonable adjustment is a ramp the court or tribunal is precluded from considering modifications of the designs advanced by the applicant.  Accordingly “A” can seek to demonstrate that (a) it would not be reasonable to construct such a ramp because a ramp of a different construction or design had been or was going to be erected and (b) it was not reasonable for it to have been erected earlier.

32.         This returns us to an issue that has always troubled us in this case, namely the impact of pilots to test a possible change and so provide evidence on what is or is not a reasonable adjustment.

33.         At a directions hearing in May 2014 the Secretary of State’s position was that the July 2014 hearing should be limited to determining (a) the relevant date(s) upon which the reasonableness of the adjustments sought should be assessed and (b) whether the pre-ESA50 adjustments sought were reasonable. He sought these directions because he wanted to run a pilot relating to post-ESA50 changes before we determined whether the other adjustments proposed by the appellants were reasonable.  His proposed pilot did not cover any pre-ESA50 changes as he maintained on the existing evidence that they were not (and never would be) reasonable.

34.         This application was opposed by the applicants and we refused it to enable them to advance their argument that the claims should be determined on the existing evidence without the proposed pilot being carried out.  We return to issues relating to the running of a pilot later.

35.         Decisions in respect of changes to the ESA scheme inevitably engage political, financial and administrative decisions that can usually only be challenged and tested in the courts on administrative (public) law grounds with the effect that if the Secretary of State (as the statutory decision maker) has considered the relevant factors, challenges to the weight he gives to them will only rarely be successful.  Questions arise on how this background to potential adjustments to the ESA scheme is to be taken into account by a court or tribunal in making its decision under the Equality Act, which makes it the decision maker. 

36.         Since the Equality Act applies to the ESA scheme it seems to us that the Parliamentary intention cannot have been that the court or tribunal is limited to choosing between available options and so those that the Secretary of State could be required to implement applying public law principles.  So we agree with the Secretary of State that the question of whether a proposed adjustment is reasonable is an objective one for the court or tribunal and is not one of rationality (see R6).

37.         But, this does not answer the question of how the court or tribunal is to factor in the role of the Secretary of State and the institutional competence of the Department in assessing, on the multi-faceted approach described in paragraphs 89(vii) and 146 of our earlier decision, the financial, political and other issues that are usually only subject to challenge on public law grounds.

38.         These questions were not before the Court of Appeal on the appeal from our earlier decision.

39.         It also left open the question whether an individual or organisation could mount a judicial review and so effectively claim relief on the basis of a breach of the anticipatory duty to make adjustments by, for example, showing that a member of the class of people it represents would suffer a substantial disadvantage and there were steps that could have been taken or could be taken to avoid that disadvantage.

40.         We have throughout seen considerable force in the propositions that:

i)             if it would be bad administration to introduce a change without a pilot it should not be ordered before the pilot has taken place, and in any event

ii)            the results of a properly focused pilot would provide important evidence on many relevant factors relating to the reasonableness of any change including the force of the Department’s weighting of competing factors and any potential knock-on effects.

41.         This view caused us to press the Secretary of State to identify what he was planning to do and when, for example, he proposed to run a pilot.   

42.         In our view the Secretary of State’s intentions regarding a pilot are relevant to the timing argument in R6 and the Court of Appeal’s conclusion that the Secretary of State cannot be ordered to carry out a pilot leads to a “Catch 22 argument”.

43.         The “Catch 22 argument” is that:

i)             the pilot itself cannot be an adjustment,

ii)            a court or tribunal cannot order the Secretary of State to carry out a pilot under the jurisdiction conferred by the Equality Act, and

iii)          it would not be reasonable to make the change without a pilot to assess its practicality and effectiveness,

with the result that although we have found that the ESA scheme puts the class of claimants with mental health problems at a substantial disadvantage, (a) it is not reasonable for the Secretary of State to take a step to avoid that disadvantage post-ESA50 without carrying out a pilot and (b) he cannot be in breach of the anticipatory duty unless and until he has carried out a pilot, since whether and when and on what basis he will do so is a matter for him and him alone (subject to judicial review of his failure to make a decision on the content and timing of the pilot).

44.              This argument was advanced to us in reliance on principles R4, R5 and part of R6 and was within the Secretary of State’s argument that the reasonableness of the adjustment was an objective question for the Tribunal.  The effect, however, of this argument is that the Secretary of State holds all of the public law cards and can use them to avoid or delay a breach of the first requirement by controlling whether and when a pilot necessary to the effective resolution of an Equality Act issue will be held.

 

Has there been discrimination against an identified individual?

45.         Mr Chamberlain argued that, although the Court of Appeal’s decision acknowledged that the respondent had subjected a class of disabled persons generally to a substantial disadvantage, it left open the question of whether the respondent had discriminated against any individual claimant.  This meant it was necessary to show that the individual had been substantially disadvantaged and that a proposed reasonable adjustment would have made a difference to him. 

46.         Ms Lieven disagreed.  She submitted that it was sufficient for the individual merely to show that he had an interest in, or connection with, the reasonable adjustment. She argued that [53] and [54] of the Court of Appeal’s decision would have been unnecessary if Mr Chamberlain was right. We set those paragraphs out:

[53]   I see the force of that argument and if the current policy to obtain FME for those deemed a suicide risk overlapped entirely with the proposed evidence-seeking adjustment, I would accept it. The failure to extend a duty already owed to these claimants to their MHP colleagues would not affect them personally or involve any breach of duty in relation to them. But in my view the premise of the argument must be that the duty to make the adjustment sought could make no difference to the claimants so that they have no interest whether it is complied with or not, but in my judgment that premise is false. The claimants do have an interest in the adjustment being made. In my judgment the duty to obtain FME for suicide risks does not entirely overlap with the proposed duty to consider whether to do so with respect to MHPs in general. That is so even assuming that it would lead to FME being sought. In my view the current policy requiring FME to be obtained for suicide risks does not secure for these claimants all that the proposed evidence-seeking adjustment would achieve.

 

[54]   First, the proposed adjustment requires the decision maker to keep the possibility of obtaining FME under review throughout the decision making process. It would require consideration even before the questionnaire has been sent out. The policy as it applies to those deemed a suicide risk is not so focused; it is only to obtain FME at some point in the proceedings before an [health care professional] makes a recommendation. It should ensure that the decision maker will be fully informed before any relevant decision is made but it would not necessarily lead to FME being obtained in time to enable a decision to be reached without the need for the MHP to undertake the potential stress of completing the questionnaire or having to participate in face to face interviews. 

 

47.         We do not accept Ms Lieven’s argument.  Paragraphs [53] and [54] were aimed at exposing a flaw in an example given by Mr Chamberlain at [52].  Their importance lay in showing that, even though the system currently operated by the Secretary of State theoretically made an adjustment for the risk of suicide which both applicants shared, the proposed adjustment covered wider ground than that and might obviate other disadvantages these applicants might suffer because of the impact of the current procedures on their mental health conditions.

48.         We accept Mr Chamberlain’s submission which, we consider, proceeds from paragraphs [50] and [57] of the Court of Appeal’s decision, namely:

 

[50] ...there can be no legal proceedings save in the context of establishing that a duty to make reasonable adjustments has been infringed in relation to a disabled person ... In my judgment, therefore, any relevant proceedings must involve seeking to establish a claim of discrimination against at least one disabled person to whom the duty to make reasonable adjustments is owed.

 

[57] ...Thus the Tribunal was in principle able to find that prima facie discrimination had been committed against these claimants, and was therefore entitled to declare, as a step relevant to the establishment of a breach of duty, that the current policy created a substantial disadvantage to MHP’s (claimants with mental health problems) in general. –per Elias LJ [emphasis added]

49.         It is clear from the Court of Appeal’s decision that sections 20 and 21 of the Equality Act create a two stage approach to determining whether an applicant can establish discrimination:

i)             has there been a failure to comply with a duty to make reasonable adjustments, and

ii)            has the individual applicant shown a failure to comply with that duty in relation him.

50.         The first stage has two elements:

i)             are disabled persons generally (or a class of disabled persons) put at a substantial (i.e. more than minor or trivial) disadvantage by the disputed provision, criterion or practice, and

ii)            is it reasonable for steps to be taken to avoid that class disadvantage.

51.         At the second stage the individual (and so here MM and DM, the only individual applicants) has to show that he or she is put at such a disadvantage by the failure to comply with the duty to make reasonable adjustments. 

52.         Insofar as there might have been ambiguity in the Upper Tribunal’s decision on whether discrimination (breach of duty) had been established to the individual claimants, the Court of Appeal’s decision makes it plain that it had not.  What had been established was simply a step along the way to a finding of discrimination to an individual claimant, namely the step described in paragraph 50(i) above.

 

Which issue needs to be decided first:  reasonable adjustment or individual breach?

 

53.         Mr Chamberlain argued the issue of whether there was any breach of duty to either of the applicants before he went on to deal with whether the adjustments proposed by the applicants were reasonable.

54.         In Finnigan the Court of Appeal decided that the right way to approach the issue under s. 21 of the Disability Discrimination Act 1995 and under section 20 the Equality Act was to decide (1) what is the provision, policy/criterion[2] or practice that causes the disadvantage, (2) what adjustment is it reasonable to take to avoid the disadvantage to the disabled class caused by the provision, policy/criterion or practice, and (3) whether there was any breach in relation to the individual.

55.         The reason for approaching the issues in this order relates to the anticipatory nature of the duty to make reasonable adjustments, and indeed many other duties under the Equality Act.  The Court of Appeal in Finnigan stressed that that duty was owed ‘to disabled persons at large in advance of an individual disabled person coming within the purview of the public authority[3] exercising the relevant function.’ 

56.         Finnigan involved a police raid on the home of the appellant, a deaf suspect, who complained that there was no deaf signer available to communicate with him during the raid. The Court of Appeal held:

 

[33] --- the duty could not be discharged by adopting styles of communication to suit the particular case on an ad hoc basis.  The anticipatory nature of the duty is inimical to the idea that reasonable adjustment may be made by deciding on an individual basis to conduct a search with or without a BSL interpreter in attendance or on standby according to the exigencies of the particular situation.

 

[34] The judge did not make any finding as to the nature of the general adjustment that it was reasonable to make to reduce or eliminate the detriment caused to the deaf per persons as a class. --- And he held that there was no breach of the duty to make reasonable adjustments in this case, since it was possible to achieve effective communication during the searches that took place. --- In reaching this conclusion, he lost sight of the anticipatory nature of the duty to make reasonable adjustments and focussed on what occurred during the searches that took place on the facts of this case.

 

[36] --- It is important, however, to keep in mind the distinction between (anticipatory) changes to a PPP which are applicable to a category or sub-category of disabled persons and changes which are applied to individual disabled persons on an ad hoc basis.  The duty to adjust a PPP is to be judged by reference to the former and not the latter.

 

57.         The Court of Appeal held, however, that although the judge had erred by not taking this approach, the failure of the Chief Constable to adjust her practice, policy or procedure caused no detriment to Mr Finnigan and this was fatal to his claim.  This shows that the stepped approach approved by the Court of Appeal in Finnigan means that although generally a court or tribunal should address whether the adjustments advanced on a class basis are reasonable before going on to consider the position of the individual claimant, it can jump to the last stage and consider the position of the individual applicant on an assumption concerning the nature and extent of those adjustments and, based thereon, that there is or has been or will be a failure to comply with the duty to make reasonable adjustments (see the definition of substantial disadvantage in Schedule 2 para 2(5) which refers to a benefit that is or may be conferred and a detriment that the person is or may be subjected to).

58.         So it seems to us, and the contrary was not suggested, that it was permissible for Mr Chamberlain to argue first that the individual claimants could not show that the alleged failure of the Secretary of State to comply with his anticipatory duty by making the adjustments they say are reasonable (and others that can fairly be said to be included in that menu) has caused, is causing or will cause them any substantial (i.e. more than minor or trivial) disadvantage or has, is or will subject them to any detriment that caused them an unreasonably adverse experience, and that this was fatal to their claims for judicial review.

59.         Additionally it seems to us that this approach reflects the direction of travel of the Court of Appeal in this case, namely that the grant of relief must depend on the claimants or one of them showing on that basis that they suffered substantial (i.e. more than minor or trivial) detriment. 

 

Has MM established an ‘individual’ breach, i.e. discrimination, against him?

60.         We have considered this on the assumption that the Secretary of State has failed to establish that adjustments suggested by the applicants (and others that can fairly be said to be covered by that menu) are not, and/or at the relevant times were not, or will not be, reasonable adjustments.  This is the most favourable basis for MM because the assumption means that the assessment of whether he has suffered (or may, or will suffer) a disadvantage or has been (or may be, or will be) subjected to a detriment is assessed on the basis that he has won on the first two stages set out in Finnigan.  Or, in other words, that he has established a failure to comply with the duty to make reasonable adjustments for the class and what remains for him to do is to show a failure to comply with that duty in relation to him (see s. 21(2)). 

61.         This assumption also favours MM in that it enables him to rely on the effect that the assumed failure has had on him, is having on him and will or may in the future have on him.

62.         Taking this approach we have concluded that MM has not made out an individual breach and so discrimination.

 

The claim history

63.         This is as follows:

a)    MM made his initial claim for ESA in September 2010.[4]  His fit note at that time indicated that the condition he suffered from was multiple sclerosis (‘MS’).  His ESA50 was received in January 2011.  It was very fully completed, contained pertinent observations about his condition and difficulties, and made reference to suicidal ideation and other problems with stress and anxiety.

 

b)    He attended a face-to-face examination.  The health care professional (HCP) noted his mental health problems but in his opinion, MM did not satisfy any of mental health descriptors[5]. The report was then sent to the DWP decision maker who was satisfied that MM did not score sufficient points to have limited capability for work or to be have limited capability for work related activity. 

 

c)    MM appealed in April 2011 and sought legal advice.  It was at this point that he sent in further medical evidence including reports on his mental health following more recent referrals for those problems.  None of these reports indicated that his suicidal ideation created a risk of a suicide attempt. 

 

d)    When his appeal was heard in July 2011, the Tribunal accepted that his mental health difficulties were such that he scored sufficient points to pass the Work Capability Assessment. 

 

e)    In September 2012, the process of reassessment began for MM and a fresh ESA50 was issued. He returned it with appropriate evidence about his mental health problems, and he was eventually assigned to the Support Group without the need for a face-to-face reassessment. 

 

64.         As we have already explained we have assumed that the Equality Act requires us to decide whether the applicant (a) has been, is or will be put at a substantial (i.e. more than minor or trivial) disadvantage in relation to conferment of a benefit or (b) if he has been, is or will be subjected to a detriment, that he has suffered, is suffering or will suffer an unreasonably adverse experience in relation to that detriment. 

65.         Mr Chamberlain submitted as he had at the first stage of these proceedings and before the Court of Appeal, that the fact that the current system did not work on this occasion did not mean that MM had been placed at a disadvantage or had suffered a detriment.  We reject this submission by accepting and adopting the Court of Appeal’s analysis of the submission at [53] – [55] of their decision.  As [53] and [54] have already been set out in full, they are précised here along with [55] to highlight the most relevant parts of them:

[53] …but in my judgment that premise if false.  … In my judgment the duty to obtain FME for suicide risks does not entirely overlap with the proposed duty to consider whether to do so with respect to MHPs in general.  That is so even assuming that it would lead to FME being sought.  In my view the current policy requiring FME to be obtained for suicide risks does not secure for these claimants all that the proposed evidence seeking adjustment would achieve.

 

[54]  First, the proposed adjustment requires the decision maker to keep the possibility of obtaining FME under review throughout the decision making process.  …  It should ensure that the decision maker will be fully informed before any relevant decision is made but it would not necessarily lead to FME being obtained in time to enable a decision to be reached without the need for the MHP to undertake the potential stress of completing the questionnaire or having to participate in face to face interviews.

 

[55] Secondly, it seems to me that a blanket rule to consider obtaining FME for all MHPs would make it less likely that the requirement to obtain the FME for suicide risks would be overlooked, as it was with MM…

 

66.         So the question becomes whether MM can show that the alleged failure of the Secretary of State to make the adjustments the applicants say are reasonable (and others that can fairly be said to be included in that menu) caused him, is causing him or will cause him any substantial disadvantage or subjected or would subject him to any detriment that caused him an unreasonably adverse experience.

67.         We see that MM’s fit note did not refer to mental health problems. There was therefore nothing at this point under either Atos’ current practice or the applicants’ proposed adjustments that would have triggered a request for further medical evidence.[6]  MM did, however, make written comments in his ESA50 about suicidal ideation, anxiety and depression.  Under Atos’ current guidelines, the mention of suicidal ideation in the ESA50 should have triggered a request for further medical evidence from MM’s GP.  The system, however, did not work.  Since this was a new claim, MM would be called for a face-to-face interview as a matter of course under the current operating policy.

68.         Had proposal A1 been in place, MM would still have had to fill in an ESA50 since his fit note did not contain a relevant trigger.  It is more likely than not, however, that if proposals A2 and A3 had been in place, Atos would have picked up MM’s case as one in which they should consider obtaining further medical evidence before a face-to-face interview took place.  The sheer repetition of this procedure would have made this likely. 

69.         Whether Atos would actually have called for further medical evidence is another matter entirely.  In our view, that would have been most unlikely for several reasons which, when taken together, did not indicate that a face-to-face interview would create any particular risks or that an exception in the regulations applied to him.  For example, the fit note did not indicate that MM had mental health problems, his ESA50 did not show that mental health practitioners were involved in his case at the time, he was not taking any anti-depressant medication, and only a beta blocker (which he did not specify as being for his anxiety, but which is, in any event, at the modest end of the scale of medication for treatment of anxiety), and his self-assessment questionnaire was detailed and lucid.  As Judge Jacobs commented at the hearing, MM’s ESA50 was one of the best completed of the many that two of us have seen over many years.

70.         MM engaged satisfactorily at the face-to-face interview, and the HCP carefully summarised the ways in which his mental health problems affected his day to day functioning in the ESA85.  Since the HCP concluded that the problems did not result in functional difficulties within the descriptors, the application of proposals A4 and A5 would have been most unlikely to result in a decision to obtain further medical evidence. 

71.         Following the decision, MM took legal advice and sent in further medical evidence. The reports, however, did not indicate that MM’s suicidal ideation was likely to result in a suicide attempt.  In addition, the evidence post-dated the decision by between one and four months. The general rule under section 12(8)(b) of the Social Security Act 1998 is that circumstances not obtaining at the date of decision cannot be taken into consideration, though case law establishes a sensible exception that evidence that post-dates the Secretary of State’s decision but which sheds light on the circumstances at the relevant time, may be considered.  It is always necessary to take care with post-dated evidence since following an unfavourable decision, it is common for claimants to assert that their conditions have worsened and medical practitioners often misunderstand the need for evidence to relate to a particular date.  The further medical evidence in this case demonstrates these problems, since MM's mental and physical health deteriorated after the decision and the reports do not draw a distinction between the date of decision and post-decision deterioration.

72.         Insofar as the reassessment process is concerned, it could be asked whether MM could have avoided having to complete a further ESA50 had the applicants’ proposals been in place.  We consider this to be unlikely, on the balance of probabilities.  MM’s mental health problems were by this time well-known to the department through the further medical evidence he had obtained, and none of the triggers in the applicants’ proposals could realistically be said to apply.  It was, in addition, clear on the evidence before us that MM not only had insight into his mental health problems but had learned from his previous experience and provided ample further medical evidence. 

73.         There was nothing before us which, in our view, suggested that MM had, or would have had, or will in the future have difficulty engaging with the ESA scheme at any of the points at which adjustments were or may be sought. 

74.         MM’s witness statement reinforces the view we have taken.  MM states that ever since his diagnosis of multiple sclerosis in or around October 2009, he has suffered with anxiety, depression and suicidal thoughts [3].  In December 2010, he reapplied for ESA having had a relapse of multiple sclerosis following a panic attack caused by an incident on an underground train. This was followed by further panic attacks during a business trip abroad.  The triggers for the anxiety and stress he suffers [6], are described as travel, physical exertion, sustained concentration and daily personal contact with other people.

75.         There is no indication that he sought or required assistance to fill out the forms for any of these benefits at any time. 

76.         Although we note his evidence that he felt suicidal at the time he applied for ESA in December 2010, we cannot draw any causal link between his mental health problems and engaging with the process on the evidence before us: 

i)             his evidence was clearly that he had suicidal thoughts all of the time;

ii)            that suicidal ideation was plainly linked to his despair at his diagnosis;

iii)          he makes no mention of any particular difficulty filling in the ESA50 and it has not been asserted in any way that he sought help with his claim until after the DWP had rejected it;

iv)          his complaints about the DWP were that he felt that they should have contacted his medical team or sought psychiatric evidence (even though he had not included the name of any mental health practitioner on the ESA50);

v)            he did not complain of stress, anxiety or depression arising from process;

vi)          it is plain from his description of the face-to-face interview that MM had no difficulty engaging with the process apart from forming the erroneous belief that the HCP intimated to him that he had ‘passed’ the Work Capability Assessment;

vii)         it was only after he received the adverse decision that he felt shock, horror, rage and a deterioration in his health.  He puts this down to the blow of the DWP’s negative decision; 

viii)        despite the range of emotions that he claimed to have felt, their effects did not prevent him from telephoning the DWP to request a reconsideration of the decision, completing an appeal form, seeking legal advice, obtaining further medical evidence and writing long, well-constructed letters of complaint to two government ministers. 

77.         We have concluded to the civil standard on the evidence, as we have already said, that any disadvantage or adverse experience he had, is having or may in the future have, was, is or would, not be linked to any of the stages at which the applicants seek reasonable adjustments.  His problems arose after the decision was given, a point at which no adjustments were sought and there is nothing to show that the position would be different in the future.

78.         So, in our view, applying assumptions that are favourable to him, MM has failed to establish an individual breach as required by s. 21(2) of the Equality Act.

Has DM established an ‘individual’ breach, i.e. discrimination, against her?

 

79.         We have considered this on the same assumptions and have reached the same conclusion.

80.         DM has an award of Incapacity Benefit which, we understood, would be looked at again at some stage soon.  At the date of the final hearing in July 2014, however, she had not been notified that her claim would be reassessed to see if the entitlement could be converted to ESA. We were therefore looking at a future event.

81.         We understand from post-hearing correspondence that she was notified in October 2014 that the process of reassessment was to begin.  We deal with this later.

82.         There was very little known about DM’s claim history until the DWP retrieved her papers from its archives after the conclusion of the hearing on 7 July 2014.  The papers and such information as they held electronically have now been made available, and the parties have made further submissions on them. 

83.         The history is contained in Dr Gunnyeon’s 7^th witness statement, which we adopt with comments and further facts as required:

a)    DM suffers from severe, long-term mental health problems, probably a schizoaffective disorder.  Her condition is marked by anxiety and serious depression for which she has been hospitalised on various occasions.  She has a history of suicide attempts.

b)    She has been on Sickness Benefit and incapacity related benefits since 1992.  Her claim for Sickness Benefit in 1992 became a claim for Invalidity Benefit (the predecessor to Incapacity Benefit), and in 1994 she was found to be medically incapable of work for 12 months by a doctor acting on behalf of the Department.  At that time, she was on a high dose of anti-depressants, was seeing a psychiatrist fortnightly and a community psychiatric nurse (CPN) in the other weeks.

c)    In June 1995 a doctor from the Maudsley Hospital, where DM was being treated, completed a doctor’s statement for her. DM completed an IB50 self assessment questionnaire for the purposes of assessment for Incapacity Benefit, the successor to Invalidity Benefit. The assessment at that time was the All Work Test.  We note here that the IB50 did not set out the mental health descriptors under the All Work Test so that applicants (including DM) had no opportunity to indicate the mental health descriptors they thought were applicable to them or to comment on them.  There was, however, a place on the form where a claimant could give further information, and DM wrote that she suffered from depression and anxiety with psychotic features.

 

d)    DM was then called for a face-to-face interview which she appears to have attended on 24 August 1995 but the interview only lasted 15 minutes. This was because, after taking her history, the medical adviser did not attempt to address the physical or mental health descriptors and found instead that DM had severe mental health problems within the exemption in regulation 10(2)(e)(viii) of the Social Security (Incapacity for Work) (General) Regulations 1995.  DM was accordingly treated as incapable of work and certified in September 1995 as suffering from a severe mental health problem characterised by the presence of mental illness so adversely affecting a person’s mood, behaviour or social or environmental awareness, including interpersonal relationships, that continued psychiatric care is essential.  The medical advisor who signed the certificate considered that she should not be recalled for 18 months (Gunnyeon 7). 

 

e)    We pause here to note that exemption under this regulation did not require a finding that there would be a substantial risk to a person’s health (or that of another person) if they were not found incapable for work. 

 

f)     DM’s account of this interview in [18] of her witness statement is one of distress and trauma.  She says she felt unable to explain her problems to the medical adviser who asked very short questions and she recalls that her mental health deteriorated severely after the interview.  The reason why the interview appeared curt is that the medical adviser was able to establish in a very short time from the history he took that DM should be exempt from the All Work Test.  However, if this was not explained to DM (and there is no reason to think that it was), it is not surprising that she was left with the impression that the examination had been perfunctory. 

 

g)    Medical evidence obtained by the Department shortly after the face to face interview does not support DM’s memory of the event.  In October 1995 DM’s mental health practitioners were asked for information relevant to her Incapacity Benefit claim.  They stated that she had been admitted to hospital twice that year but they do not indicate that either of the admissions was related to the face-to-face interview.  Nor did they indicate that her mental health was adversely affected by the face to face interview.  This is significant since they were specifically asked for information relevant to her incapacity benefit claim, and any impact of the process on her mental health would clearly have been relevant.  In the circumstances we are not satisfied that the appellant was adversely affected by the process because of her mental health problems. Nor are we able to conclude on the evidence before us that the association she makes between the events is more than a simple error of recall.

h)   In 1996, the file was reviewed.  The decision maker sought information from the hospital treating her mental health problems, and on the basis of that report DM’s award of Incapacity Benefit continued.

i)     In January 1999 DM was sent an IB50 which she completed and returned to the DWP.  She was scheduled to have a face-to-face interview but it was cancelled when the Department noted that DM was exempt from the test (the Personal Capability Assessment) under regulation 10(2)(a)(i) of the 1995 Regulations because she was in receipt of the highest rate of the care component of DLA.  DM does not assert in her witness statement that filling in this form affected her mental health.

 

j)      Electronic records show that DM’s file was reviewed again in 2001, 2003 and 2006.  She was not called for an interview on these occasions because she remained exempt under regulation 10(2)(a)(i).

k)    DM completed two forms relating to permitted work in 2009.  The permitted work regulations are complex, and if they are contravened, benefit can be terminated and any overpayment recovered.  We mention this because DM contends that her mental health could be severely affected by the stress of engaging in processes which could affect her entitlement to benefit yet does not assert that dealing with this particular and complex part of the process had an adverse effect on her mental health. 

l)     According to her witness statement, since the examination in 1995, DM has been able to complete an Open University Psychology degree in four years and a Masters degree in Art History in 3 years though her studies were interspersed with admissions to hospital for her mental health disorder.  When her studies finally ended in 2008, she was readmitted to hospital twice, in 2008 and 2009. Following the latter admission, she received home treatment for most of 2009.  

m)  She is able to work in a range of voluntary work in advocacy for those with mental health problems and campaigns in their support and also for people with gender issues.  She is, for example, a representative for a mental health user group, supports others in the community through a group she founded and is a founder of a gay, lesbian and transgender group.  She has embarked on high profile litigation against the Secretary of State which no doubt entails attendance at meetings and addressing issues that are potentially upsetting or which may increase her anxiety.  Her mental health team has no objection to her pursuing this litigation.

n)   DM nevertheless fears that just the risk of having to attend a face-to-face interview let alone actually attending one would cause a further relapse of her mental health problems.  She asserts that even having to fill out an ESA50 would cause her extreme trauma.  This is the crux of her case on disadvantage and detriment as and when she is subject to the conversion process.

Was DM substantially disadvantaged suffer a detriment by being put at risk of or having to fill in an ESA50 and/or being put at risk of being required to attend or attending a face-to-face interview?

84.         Having regard to the evidence in [83], and in particular to (g) – (m), our view before receiving further evidence on the conversion process DM went through was that she would have been able to cope with the assessment processes without disadvantage or detriment.  In saying this, we accept that the ESA50 is a more complex form than the IB50.  However, DM’s roles as mental health advocate and campaigner, public speaker, and her involvement in a support group indicate a resilience that in our view undermines her assertions.  The applicant’s explanation of the stresses that these activities might subject her to did nothing to make us think otherwise. 

85.         In our view even if MM was unwell when she was notified of the conversion process she would, on balance, have tapped into the support systems she had with her mental health team and community support group in order to cope.  In our view, DM’s fears were neither realistic nor supportable even in her own terms prior to being notified of the conversion process in or around the beginning of October 2014.   

86.         Our view of what was likely to happen on any re-assessment is confirmed by the actual course of events that occurred after the hearing.  DM, who had been in a mentally fragile state in the summer of 2014, received the ESA50 in early October when she was in the process of moving house.  Although she considered this ‘catastrophic’[7], she very sensibly contacted her CPN who assisted her with communicating with the Department and form filling, and who would attend the face-to-face interview with DM if it came to it. 

87.         In addition, DM had the insight and focus to recognise the possibility of a legal challenge to the conversion process before the present litigation was determined and contacted her solicitors to make enquiries.  But even if she had not been involved in this litigation, the evidence shows that she was in any event able to cope appropriately with the challenge of assessment.  In all these circumstances we are unable to accept that her position was effectively different from claimants without mental health difficulties or that she suffered more than trivial disadvantage or detriment as a consequence.    

88.         In terms of the actual assessment itself, when the ESA50 was received by the Department in November 2014, the information was reviewed under Atos’ standard scrutiny process.  The mental health flag was noted and further evidence obtained by the decision maker on the basis of which DM was recommended to be assigned to the Support Group.  A decision maker confirmed her placement in the Support Group shortly thereafter. The system worked as it should and she was not called to a face-to-face interview.

89.         As we have said repeatedly, the question for us is not whether DM had or does not have limited capability for work or work related activity.  It is whether she is entitled to protection under the Equality Act.  Having considered the evidence, including DM’s explanations, on the assumptions and approach we have taken we are driven to the conclusion that her expressed fears about her reaction to being the subject of the conversion process (or later applications of the ESA scheme) do not reflect what would be likely to happen when and after this occurred.  We do not accept that the assessment made by DM and her CPN are sufficiently supported on the evidence or that their assessment is correct. Accordingly she has failed to establish that the failure to comply with the anticipatory duty would cause her the relevant disadvantage or detriment at the ESA 50 stage or in respect of attending a face-to-face meeting or later in the decision making process under the ESA scheme.

90.         So, in our view, applying assumptions that are most favourable to her, DM has failed to establish an individual breach as required by s. 21(2) of the Equality Act.

Conclusions on the individual applicants  

 

91.         On the assumptions we have applied, whilst other members of the class of disabled persons with mental health problems might well be able to show they suffered a more than trivial or minor disadvantage, or were subjected to an unreasonably adverse experience, these applicants (MM and DM) cannot show this.    

92.         This conclusion means that on the approach set down by the Court of Appeal both cases must be dismissed.

93.         We acknowledge that this leaves a number of issues in the air and is a frustrating result for other members of the class who might well be able to show that they have suffered, are suffering or, if the proposed adjustments are not made, will suffer a relevant disadvantage or be subjected to a relevant detriment.

94.         For this reason, and because we heard argument on whether the adjustments advanced by the claimants are reasonable and there is the possibility of another appeal or application for judicial review we turn to consider the proposed adjustments.

 

ARE THE PROPOSED ADJUSTMENTS REASONABLE? 

 

95.         The onus is on the Secretary of State to show that they are not.

96.         Unless some of these adjustments (or adjustments that “are on the menu”) are made it is not easy to see how the substantial disadvantage we found to exist for the class of claimants who suffer from mental health difficulties could be ameliorated. However, the possibility that no reasonable adjustments can be made to ameliorate such a substantial disadvantage is inherent in the approach taken by the Equality Act because the person who would otherwise be required to make them can prove that it would not be reasonable for him to make the proposed (or indeed any) adjustments.

97.         The Secretary of State’s evidence includes an account of the development of pilots he was considering firstly by reference to Professor Harrington’s recommendations and later having regard to this litigation, our earlier decision and Dr Lichfield’s report.  The proposed pilots focused on the position post-ESA50 and certainly by the hearing were directed only to that period.  The Secretary of State’s case on the pre-ESA50 proposed adjustments was that he was not contemplating any piloting of them and that we should find on the existing evidence that they were not reasonable.  However, as mentioned earlier the Secretary of State was asserting that he wished to carry out a pilot prior to the final determination of these claims and sought an adjournment to enable him to do so.  This was opposed and refused.

 

PROPOSAL A1 – Before the applicant is requested to complete an ESA50

 

98.         The applicants’ proposal A1 would require Atos, or the Department (effectively, Atos) to consider actively whether further medical evidence is needed before a claimant is asked to fill in an ESA50.  The need to do so in A1 is triggered by information already provided to the Department which indicates a previous suicide attempt, suicidal ideation or self-harm, or if the applicant has an appointee.  As we will see, it is not clear what information Atos would have to check to ascertain this.  If further medical evidence is not sought, Atos or the decision maker must justify their decision not to do so in writing.

99.         We are in some doubt about the applicants’ final position on the information to be consulted in identifying those claimants for whom further medical evidence should be sought at this stage.  Although the written proposal includes the words ‘in the fit note’, elsewhere we were told that the fit note was only intended to be one example of the information the Department might hold (Position Statement, May 2014; letter from Public Law Project to Treasury Solicitor 11 June 2014), and at the hearing, we understood Ms Lieven to ask us to strike out the words “the fit note”.  However, Ms Lieven also submitted that the simple test was “are the words there on the fit note?”  If so, further medical evidence should be considered.  At the final hearing, however, Ms Lieven also submitted that at the pre-ESA50 stage, further medical evidence need only be considered where one of the flag words italicised in the above paragraph exists. 

100.      It may well be that this problem of definition is related to the difficulty we have had throughout in establishing what information was held in which format, and where.  It was not obvious to us until Gunnyeon 7, for example, that the mental health flag in the electronic database consisted of no more than the words “Mental Health Flag (Y/N)”, and that the database restricted the number of diagnoses that could be entered.

101.      In paragraph 34 of our previous decision, we were asked to proceed on the bases (inter alia) that:

i)             Atos would receive all available information relating to the previous ESA and IB claims in cases of re-referral or conversion cases respectively; 

ii)            in IB cases, no fit note is required;

iii)          if the claimant has, or claims that he has a mental health problem, the case is flagged to that effect;

iv)          in every case, the claimant is asked to fill in an ESA50.  It is at this point that FME would be requested, if one of the flags was found; and   

v)            the mental health flag is entered on the database before the ESA50 is received.

102.      It is apparent, however, not only that there may be a considerable difference between what is recorded on the electronic database and in the fit note, but that the point at which items of information become available varies. 

103.      We understand that the information on the electronic database includes, where relevant, a mental health flag.  It consists of a simple yes/no question viz.  ‘Mental Health Flag (Y/N)’.  The diagnosis of the claimant’s condition is found further down in the entries.  It is generally based on the words used on the fit note (or sick note for IB), which are then converted into a code number from the International Classification of Diseases.  This is done by data processing staff with no medical qualifications.  The system is able to record a maximum of two primary diagnoses, with another line for a secondary condition (optional).  This information is then transferred automatically via an interface to Atos’ ‘MSRS’ (medical referral system) and an ESA50 is issued.

104.      The Secretary of State argued that proposal A1 could not be entertained in any case in which there was no fit note.  This would affect any case of conversion from IB to ESA because sick notes were used for IB.  Fit notes only came into operation with ESA.  We consider this submission to be unduly technical.  It is plain that the adjustment is intended to cover both a fit note and its predecessor. 

105.      Another objection raised is that the information given on a fit note at the start of claim is not updated when claimants submit later fit notes during their claims. As in MM’s case, therefore, a claimant may start off with a fit note which does not contain a flag, but it may exist in the ESA50 itself. Updating the database each time a fit note was received would plainly increase the expense of processing claims.

106.      The system for issuing ESA50s is, in addition, fully automated (so long as minimum details are in the database).  So even if there is a mental health flag the ESA50 will be issued automatically under the current system.  In our view, changing the system pre-ESA50 would not be straightforward. While it might not be overly difficult to reprogram the system to stop flagged claimants from receiving ESA50s automatically, doing so would lead to staff having to examine thousands of entries for claimants, check the bare diagnosis given, and assess from this minimal information whether FME should be sought.  DM’s case provides an example of the minimalist information on the database.  Dr Gunnyeon confirms (Gunnyeon 7) that her electronic records have a mental health flag (‘Y’) but her incapacity was simply described as ‘Mental Disorder’.  The severity of her mental health problems, and in particular, her suicidal tendency, would not be apparent from the information on the database.  It would be untenable to make decisions about obtaining further medical evidence on such sparse evidence.

107.      This means that Atos will not be aware of trigger words such as ‘suicide risk’ until the ESA50 is returned by the claimant.  At that point, the ESA50 is examined, but any existing paper file is not accessed or retrieved.  Atos decides whether further medical evidence is required on the current evidence, in other words, the ESA50.  If Atos had to decide before receiving an ESA50 whether a person with a mental health flag fell into a risk group requiring them to consider whether to seek further medical evidence, they would have to retrieve a very large number of paper files for cases being reassessed or converted.  For cases coming up to their first assessment, they would have to make the decision on a bare diagnosis.  In both cases, there would be further layers of delay and expense. 

108.      Dr Gunnyeon suggested (Gunnyeon 7) that, if all 1.5 million IB case files were to be retrieved, the cost of the Department of just retrieving and re-archiving them would be in the region of £4 million.  Since Dr Gunnyeon estimated that there were only around 140,000 IB cases remaining to be converted to ESA, this projection is an overestimate.  Ms Lieven suggested that even if it cost £3.00 to retrieve each remaining file, the cost would only be £200,000.  That is still a not insignificant sum of money to be found from the public purse. To this, there would have to be added the ongoing costs in time and money of retrieving and reviewing the files for ‘flagged’ ESA claimants subject to reassessment, if anything like an informed decision were to be made. 

109.      There are further difficulties with implementing the proposed change at this early stage which we consider to be serious barriers to finding that the adjustment is reasonable.  These include:

i)             fit notes are used for both Statutory Sick Pay (SSP) and ESA; and

ii)            the risks (leaving aside appointees) may be hidden under a diagnosis such as ‘depression’ or ‘nervous debility’, as recommended in guidance to GPs by the Department; and

iii)          if the proposal were to extend beyond checking the fit note to looking at other information held by the Department, such as earlier files, it would manifestly require greatly increased resources.  

110.      Fit notes are used as the basis for claiming not only ESA but also for SSP.  The number of fit notes issued for SSP vastly outweighs those issued for ESA (Gunnyeon 4).  The fit note is a very short document meant to be filled out quickly (Gunnyeon 5 [35]-[36]).  The Social Security (Medical Evidence) Regulations 1976 govern its contents and form.  The template for the form is in Schedule 1, Part 2.  The issuing doctor (normally the GP) is required to enter minimal information on the fit note in the small boxes provided, including the condition in respect of which the doctor advises the patient that they are not fit for work (Schedule 1, rule 5c).  An examination is not necessary - only a ‘consultation’ which may take place over the telephone. 

111.      Doctors are not only permitted by Schedule 1, rule 8 to give a less precise specification of a patient’s condition, but recommended to do so where recording the nature problem might be prejudicial to the patient’s well being or to a patient/employer relationship.  Doctors are recommended to describe suicidal ideation, for example, as depression (Gunnyeon 4). This means that the specific ICD code for this emotional condition is not recorded on the fit note or database.  MM’s case provides an example.

112.      Rule 8 was drafted after extensive consultation (there was no challenge to Dr Gunnyeon’s evidence on this).  One of the reasons for giving a less ‘sensitive’ diagnosis or condition on a fit note is to protect a claimant’s privacy vis a vis his employer.  A person who needs time off because of a current physical problem is unlikely to welcome the disclosure of a previous suicide attempt or suicidal ideation that might be of historic interest only, entirely unconnected with his employment and of no effect on it. 

113.      Ms Lieven submitted that it would not be difficult for the Department to revise the guidance and the fit note forms issued to doctors to enable them to enter different information for SSP and ESA purposes. 

114.      This underestimates the difficulty significantly, in our view.  The contents of the fit note are set out in Regulations. Since the number of SSP fit notes vastly outweighs the number of fit notes issued for ESA claims, any change needs to be assessed carefully to ensure that no ill effects arise for SSP claimants because of the change to the system.  As explained, under rule 8 it is permissible for a doctor to be less precise about the cause of a person’s absence from work where the reason is sensitive. Ms Lieven’s submission would mean that the precise cause or condition had to be disclosed in fit notes.  If SSP fit notes were to be exempted from the change, any amendment would have to make it clear that the relaxation in describing the cause of absence from work does not apply to fit notes for ESA.  Insofar as the amendment would require disclosure of sensitive information, it would be necessary to consult with organisations representing the medical profession, unions and employers, all of whom have different interests in this issue.

115.      Not only is it likely that rule 8 would need to be amended, but also any regulations that were consequentially affected.  It would certainly entail the redrafting of the current guidance issued to those who fill out the forms, and it would inevitably involve the printing and distribution of hundreds of thousands of new leaflets and forms, as stated by Dr Gunnyeon.

116.      All that these changes would achieve, in the end, is a position where Atos would be required to consider whether further medical evidence is necessary and, if it be the case, explain why it has not been sought.  It appears from the examples of the two individuals before us that the likelihood of these changes resulting in an effective amelioration of disadvantage in a significant number of cases would be small.  In DM’s case, as in many of the IB conversion cases, the information on file will be out of date.  The applicants’ submission is based on an assumption in which mental health conditions never change.  While we accept that many mental health conditions are of an enduring nature, the opposite is also true:  mental health conditions may be short lived – and, indeed, of varying intensity - and respond to the arsenal of medications and treatments available.  This does not necessarily mean that the problem has been cured, but it may well mean that the individual is able to manage his life with little or no difficulty.

117.      The Secretary of State raised a number of other areas in which practical problems would arise from a change in the system before the ESA50 was issued.  For example, since the existing records will normally only show the claimant’s GP’s name and address, the Department will not have information about the mental health team (if any) that has the in-depth knowledge of the claimant’s mental health problems.  Sending a request for information to the GP at this stage is likely to result in the GP or his staff having to access his files to find out who is to be contacted.  There will be an added burden on, and cost to, the GP's practice.  Since GPs are not required to perform these tasks under current arrangements, there would have to be consultation with the profession who, we accept, are likely to resist it. 

118.      While these matters may seem trivial when looked at in relation to an individual claimant, they are another matter entirely when looked at from the perspective of medical practices across Great Britain.  Though financial cost may well not be a determinative factor, we consider that it is a relevant factor in determining whether the proposed steps are reasonable to take. 

119.      Conclusion on pre-ESA 50 proposed adjustments. We have concluded that the problems we have dealt with in this section of our decision mean that, even without the need for a pilot, the Secretary of State has shown that the pre ESA 50 adjustments sought by the applicants are not reasonable adjustments.

120.      Before we leave the pre-ESA50 stage, we wish to address a number of arguments advanced by Mr Chamberlain on behalf of the Secretary of State.

121.      Mr Chamberlain asserted that it is a key principle of the Welfare Reform Act 2007 that a claimant should be given the first opportunity to explain how his problems affect him.  That may be so (though we were not directed to the specific source of this principle) but if the result of the principle is to create a substantial disadvantage for a class of disabled persons, we are presently of the view that the principle might well have to give way to the Secretary of State’s duty under the Equality Act. 

122.      Mr Chamberlain also submitted that, if pre-ESA50 medical evidence is sought, it will necessarily entail the making of assumptions about a claimant based on diagnosis rather than function.  We see little merit in this argument.  The fit note essentially asks for a diagnosis and this is encoded on the databases.  The ESA50 specifically asks the claimant to say what his illness, disability or condition is, which is much the same as asking about the diagnosis. Neither document is diagnosis-neutral. 

123.      We accept, however, that the remainder of the ESA50 is designed to find out how the claimant functions in relation to a closely restricted set of activities on a day to day basis but we are unimpressed by the argument that the introduction of further medical evidence at this early stage would change the focus from function to diagnosis and treatment.  Whether it would do so, would depend on the questions asked. Moreover, ATOS or the decision maker would be aware that the legal focus remained on function and would proceed by way of inference from the diagnoses. 

124.      Finally, we accept the Secretary of State’s submission on the proposal insofar as it makes the presence of an appointee’s name a flag for considering whether further medical evidence is required before issuing an ESA50.  Where there is an existing claim in which an appointee is named, the Department bypasses the claimant and corresponds directly with the appointee.  It is also worth pointing out that the need for an appointee may have nothing to do with a claimant’s mental health problem.

 

POST - ESA50

 

125.      Four further stages are proposed at which the Department should consider whether further medical evidence is required.  They are not expressed as alternatives and are all directed to obtaining further evidence before the next decision or step is taken.  There is a considerable degree of overlap in the stages and triggers for each stage, and at each stage the proposal requires a decision not to seek further medical evidence to be justified in writing. 

126.      We comment on the stages individually but attempt to avoid as much repetition as possible by cross referencing.

 

A2 - Before a decision is taken to conduct a face-to-face assessment

 

127.      The starting point for this proposal is that the Department has received an ESA50 from the claimant and will therefore have his own assessment of his limitations. 

128.      On its face all this proposal asks Atos to do is to consider whether further medical evidence is required:

i)             to avoid real risks to vulnerable claimants (a) who will be unable to engage effectively with the process (presumably with the face-to-face interview), or (b) who would be at real risk of harm if they were to attend a face-to-face interview; or

ii)            to assist with the assessment including the application of Regulations 29 and 35 (under which a claimant can respectively be treated as having limited capability for work or for work related activity even though he did not score enough points to pass the Work Capability Assessment).

Is this proposal reasonable?

129.      In our view, a number of factors suggest themselves as being relevant to deciding whether the proposal may be unreasonable.  These include (but are not limited to):

i)             whether it represents an advance on the existing guidance for obtaining further medical evidence;

ii)            whether the proposal is sufficiently well-defined to be applied consistently across the potentially large class of claimants with mental health problems;

iii)          the extent to which the adjustment will provide sound, objective evidence that will assist Atos (and ultimately the decision maker) in making a properly informed decision (at this stage) about calling a claimant for a face-to-face interview;

iv)          whether the adjustment will lead to unnecessary strains in the GP/patient relationship and require wide consultation with interested users;

v)            the extent to which it will reduce the number of claimants called to a face-to-face interview;

vi)          whether the adjustment will be cost effective; and

vii)         whether the adjustment will create undue delay.

130.      We discussed the present guidance at length in our previous decision at paragraphs 40 –- 54 and concluded that the current Filework Guidance would result in requests for further medical evidence before the face-to-face interview took place in too few cases to ameliorate the disadvantage to those with mental health problems as a class.  This conclusion indicates that a reasonable adjustment is at least a possibility.   

131.      We acknowledge however that an HCP does have discretion to call for further medical evidence at this and later stages of the process.  Though their discretion is somewhat restricted, it operates particularly in cases of re-assessment and conversion where the HCP considers (i) that there is a strong probability that the claimant may qualify for the Support Group, or (ii) that they may qualify under an exception in regulations 29 and be treated as having limited capability for work.  The HCP (iii) may call for further medical evidence where, for example, a claimant is likely to be so distressed by a face-to-face interview or have such a high level of disability that a face-to-face interview should only be considered if other attempts at evidence gathering fail and (iv) must seek further medical evidence where the ESA50 contains evidence of suicide attempt, suicidal ideation or self-harm.  We add that an HCP may also seek further medical evidence after claimants have attended their first assessment. 

 

Is there a real risk that claimants will (a) be unable to engage effectively with the ESA process, or (b) be harmed if they were to attend a face to face interview?

 

132.      In A2 it is not clear whether the process is limited to the face-to-face interview or refers to the process as a whole.  This does not matter because the same test is repeated in proposed adjustments A3, A4 and A5 which takes one to the end of the process.  What we say below applies to engaging effectively with the process as a whole and so to A2 to A5 inclusive whilst the risk of harm caused by attending a face-to-face interview is limited to A2.

133.      Consistency of approach and result.  The application of tests involving issues of degree such as “effectively engage” and “risk of harm” have engaged tribunals and courts in many fields and, provided the correct approach is taken, are ultimately an issue of fact and degree on which different decision makers can lawfully reach different conclusions on the same set of primary facts.  So, in the context of the assessment of benefit involving large numbers of claimants with a wide range of mental health problems, the introduction of such a test for Atos may lead to unacceptable inconsistency in decision making.  In our view, this potential problem merits a pilot for such a test before it is introduced generally.

134.      The nature of the value judgment in the proposed tests may be contrasted with the current guidance which, for all of its faults, at least directs HCPs to claimants who are strongly likely to meet the Support Group criteria, are suicide risks, or would be so distressed by being called for an examination, or have such a high level of disability (such as those with psychotic illnesses) that an examination will only be considered after further review.  These are criteria that lead more readily to consistent answers.

135.      The introduction of examples of what would be ineffective engagement or the necessary degree of harm (e.g. significant) with examples would, in our view, be “on the menu” of this proposal but they were not suggested by the applicants.  The wording and content of                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       guidance relating to the relevant trigger tests are obvious subjects for a pilot.

136.      Obtaining useful information.  Assuming that claimants for whom there may be concerns under this heading could be consistently identified by HCPs, the next problem is whether GPs will be able to add anything useful in their reports. 

137.      There are several aspects to this which emerge from the British Medical Association’s response to the proposal in Harrington 3 for GPs to provide further medical evidence (Gunnyeon 1).  GPs’ functions are essentially to diagnose and treat their patients.  They do not generally have disability medicine or occupational health qualifications or backgrounds.  Nor do they wish to become involved in giving any opinions on their patients’ capability to work, which they consider endangers the doctor/patient relationship. We would add that our experience is that GPs rarely understand the complexities of the Work Capability Assessment and are generally unable to comment helpfully on functional limitations or unwilling to do so.  Insofar as they are only to be asked about assessing risks - under this heading, of non-engagement - we are left wondering why they would have useful information about this, since their experience will generally be one of speaking to their patient about a specific problem at a short consultation.  Unless the patient suffers from an extreme mental health problem, and is seen consistently by a doctor who gets to know them well and takes copious notes, a GP is, in our view, unlikely to do more than express an opinion on an amorphous question based on book knowledge about the generality of patients with that condition.  That, however, is an exercise that an HCP is intended and trained to carry out.  

138.      If GPs are simply meant merely to pass on the request to the appropriate mental health practitioner (assuming they were named in the ESA50 or are known to the GP), the GP’s practice would be involved in new administrative duties beyond those which presently exist.  There are obvious cost implications to this in terms of renegotiation of contracts and payment for extra work which must then be considered on a nationwide basis.

139.      There is already a significant problem with the non-return and late return of requests for further medical evidence [Gunnyeon 4].  Asking a GP for an opinion on a question of such subtlety as that posed in A2 is, in our view, likely to increase the rate of default. 

140.      The delay caused by seeking further medical evidence and in retrieving files should not only be seen from the point of view of the claimants.  It was submitted that claimants were unlikely to complain of this delay as they can remain on ESA or IB until their appeal is heard.  We do not consider that this provides a satisfactory basis for prolonging the process and prefer Dr Litchfield’s view in chapter 6 of his Review that the Work Capability Assessment process already takes far too long and does a disservice to those who are left in limbo and to taxpayers who ultimately foot the bill for those who remain on benefit to which they are not entitled. 

141.      These difficulties have an overlap with those relating to the engagement of GPs in the pre-ESA50 stage.  However, by this stage the questions would be more focused and the pilot suggested by the Secretary of State necessarily envisages seeking FME and discussion and testing with both Atos and the profession on how this should be done.  Again these issues are obvious subjects for a pilot.

Further medical evidence to assist with the assessment including the application of Regulations 29 and 35.

142.      This purpose is common to A2, A3, A4 and A5 save that under A5, to recognise that it is the last stage pre-decision, the words “and recommendation” are added after “assessment”. 

143.      The comments we have already made in paragraphs 132 to 141 apply to both parts of the purpose expressed in this proposal.  We add for information here that regulations 29 and 35 provide exceptional circumstances in which claimants can be treated as having limited capability for work or work related activity even though they do not fall within the strict criteria for either category.  The regulations are, in effect, safety nets for those whose physical or mental health would be at substantial risk if they were found not to fall into either category. 

144.      Consistency of approach and result is once again a primary concern with this proposal.  As with the words “effectively engage”, a test or trigger based on “assisting with the assessment” permits a range of responses devoid of signposts.  ‘Assisting with the assessment’ can cover anything from providing factual information from a relevant practitioner’s records to giving an opinion on central issues of the activities in the work capability assessment.  Unless the claimant’s practitioner was sent the ESA50 (which would cause additional delay and expense in and of itself) they would not know the extent of their patient’s claims.  They would, moreover, only be getting the claimant’s subjective view of his problems since there would be no ESA85 to provide any form of independent assessment against which the claimant’s practitioner could judge the claimant’s and their own perceptions as against the legal norm.

145.      A further, and in our view significant, objection to this proposal is that it is unlikely to be robust enough for a system which deals with some 600,000 new claims each year (not including IB reassessments and re-referral cases).  In March to May 2013 alone, further medical evidence was requested in over 170,000 new cases, of which over 105,000 were for people with mental health problems (Gunnyeon 4). It is plain that in the absence of clear indications of what it is meant by ‘assisting with the assessment’, an HCP could be left in the position of having to individualise each request for information and the GP in speculating on what was required.

146.      It seems to us that a proposal of this breadth would have to be carefully piloted before it could possibly be reasonable to accept it. 

A3 - Before the face-to-face assessment takes place. 

 

147.      The difference between this proposal and A2 is that A3 assumes that a face-to-face interview will take place. In our view the comments we have made on A2 are equally applicable.

 

A4 - After the face-to-face assessment takes place

 

148.      At paragraph 138 of our previous decision, we found that there was a substantial (more than trivial) disadvantage to claimants with mental health problems at this stage as well as at earlier stages in the process.  We point out however in paragraph 139 that obtaining appropriately directed further medical evidence earlier in the decision-making process would have a significant impact on ameliorating this disadvantage. 

149.      This proposal would require Atos to consider whether further medical evidence should be obtained following the face-to-face interview in the same circumstances as A2 and A3.  On the plus side, the main evidence would be in the hands of the Department by now.  The HCP will have seen the ESA50 and looked at the previous paperwork in a reassessment or conversion case.  The claimant will also have had another opportunity to provide medical evidence before the face-to-face interview.  After the interview, the HCP, who has training in the identification and assessment of mental health problems (see ST and GF v Secretary of State for Work and Pensions (ESA) [2014] UKUT 0547 (AAC); CE/4111/2012 and CE/3202/2013 3JP), will have done the preliminary scoring.  At this point, the HCP could and should take a step back and take a more holistic view of the claimant and, it was argued, by requiring HCPs to justify why they did not call for further medical evidence, errors such as those that occurred in MM’s case could be avoided, and a check would take place that the decision was to be made on a properly informed basis.  This focuses on the justification in writing for not seeking further medical evidence having regard to the evidence that has been gathered (including any earlier justifications for not seeking further medical evidence).

150.      Ms Lieven suggested that the HCP could record his reasons for not seeking evidence (if that was the decision) by using a tick box and drop down menu system.  This suggested modification of the proposed adjustment is directed to the justification in writing but we have difficulty in seeing that this tick box approach would add anything.  The current ESA85 pro-forma already devotes a page for the consideration of these issues.  The page is headed, in large, bold print ‘Exceptional Circumstances’, ‘Non-Functional Descriptors’.  It recites the exception in regulation 29(2) and the exception in 35(2) and requires the HCP to say whether the exception was made out by giving Yes/No answer.  The form then requires the HCP to justify their answer under the heading (in bold) ‘Evidence Which Has Led to This Opinion’

151.      It seems to us that, having regard to the background of the information that will then be available and the present format of the ESA85, the potential for adding value at this stage must lie in whether the reasons for not calling for further medical evidence adds sufficient value to justify the change.  Ms Lieven’s suggestion reinforces our view that there is a real need to check by a pilot how and the extent to which the proposed adjustment would add value.  This would include the formulation of any tick box system.

152.      We acknowledge that the likely impact of this proposed adjustment will be affected by the introduction of earlier adjustments.   

 

A5 - Before the decision is made

153.      This proposed adjustment comes even later in the process and we repeat our reference to paragraphs 138 and 139 of our earlier decision. 

154.      Decision makers are not medically trained.  Their job is to make a judgment on closely defined legal tests. These involve issues of disability on which they are advised by HCPs trained in the medical issues surrounding disability and its assessment.  HCPs are employed by an independent provider.  Unless the proposal is limited to a discretion to consider earlier reasons for not calling for further medical evidence and going back to the HCP on this issue, this proposal, in our view, would compromise the legal task of the decision maker in that it would place a decision on obtaining medical evidence in the wrong hands and would result in the decision maker considering it without it having been analysed by an HCP trained to interpret it. Such discretion already exists.

155.      In other words, in our view, if the earlier proposed adjustments have not been made, this proposal is too late and unreasonable because it adds nothing to the Department’s existing practice as set out in paragraph 47 of our previous decision.  Present practice requires a decision maker who is minded to disallow benefit to telephone the claimant to inform them of the likely decision and try to identify any inaccuracies in the Atos assessment.  This may lead the decision maker to change his mind, take further advice from the HCP, request the claimant to provide further medical evidence which can be considered by the appropriate people or contact the claimant’s chosen healthcare adviser to confirm what he has been told.

The Secretary of State’s Proposed Pilot

156.      By the date of the hearing in July 2014 the distance between the parties on what should be included in a pilot or pilots had diminished (although the Charity Interveners were asserting that there should be consultation on their content).  That narrowing of the gap is relevant but not a determinative issue because the Secretary of State has the burden of showing that the applicants’ proposed adjustments are unreasonable, and not simply that his solution is better or might be shown to be better by a pilot.  However, as we have said earlier a pilot is likely to provide important evidence and, as with the example we gave earlier relating to a ramp, a court or tribunal, in deciding what the reasonable adjustments are, will need to consider the pros and cons of the choices proposed.

157.      In opposing the adjournment and at the hearing the applicants argued that the Secretary of State should not be permitted to carry out a pilot before we made our decision on whether their proposed post-ESA50 adjustments are reasonable.  They submitted that it was now too late for the Secretary of State to seek to rely on the need for, or the advisability of, a pilot to show that their proposed post-ESA50 adjustments were, or are, not reasonable; and, in any event, that the information he was suggesting would, or might, be obtained from pilots did not satisfy the onus that is now placed on him to demonstrate that the proposed adjustments were, or are, not reasonable.  We disagree with both submissions.

158.      The comments we have made in discussing the proposed adjustments show that we accept that it would be sensible and informative to carry out a pilot in respect of them. This confirms the view we have held throughout.  It is obviously an aspect of good administration, it accords with the usual practice of the Secretary of State and, in our view, a properly informed view on what adjustments should be made post-ESA50 to obtain further medical evidence cannot be reached without a pilot. 

159.      It has been apparent that we have found the early responses of the Secretary of State to the evidence-seeking recommendation and his developing position on what he proposed doing to implement it frustrating.  Given his stance and arguments on the merits of these claims it seems to us that he could have formulated his response to that recommendation more clearly and progressed pilots to implement it more quickly as part of his commitment to take account of such recommendations and to make appropriate improvements to the scheme.

160.      We therefore have sympathy with the applicants over the delay in settling the terms of this pilot and trialling it. 

161.      Some of the delay was due to the Secretary of State’s appeal to the Court of Appeal following our decision in May 2013.  He cannot be criticised for exercising his right of appeal and he was, of course, successful to the extent that our directions to the Secretary of State to carry out a pilot were overturned.  And whilst a further considerable period of time has elapsed since then, it would be wrong to say that the Secretary of State has been idle.  As we have known from the outset of these proceedings, the Department was in the process of negotiating the early termination of Atos’ contract, which caused (and continues to cause) considerable disruption to medical support services for a number of benefits, let alone for the introduction of trials for adjustments directed to obtaining further medical evidence.  

162.      We have concluded that the uncertainties of litigation, the development of the identification of the adjustments proposed by the applicants and the inclusion therein of adjustments pre-ESA50 that the Secretary of State has not wanted to pilot mean that, from only a litigation perspective, the postponement of his decision to run a pilot in respect of obtaining further medical evidence post-ESA50 until April 2014 (when in correspondence he sought an adjournment to do so) should not found a refusal to allow him do so on the basis that it is now too late.  In short what we or an appellate court decided might render a pilot unnecessary or insufficient.

163.      Also, we accept that the dynamic situation relating to the reports of Professor Harrington and Dr Lichfield and the negotiation with Atos in the wider context of the administration of the ESA scheme found the same conclusion.

164.      Since the July 2014 hearing there have been further exchanges of evidence and submissions (ending in December 2014) and the parties have been awaiting our decision including our decision on whether we accepted the applicants’ argument that the Secretary of State should not have the opportunity to run a pilot to support his case that the proposed post-ESA50 adjustments are not reasonable (including argument based on a comparison between what he proposes and what the applicants have proposed).  It may now be that the election will be a factor that is relevant to the timing of a pilot and we are sorry if the time we have taken to write this decision has caused this. 

165.      Although it is not based on all the adjustments proposed by the applicants the pilot proposed by the Secretary of State would clearly provide relevant evidence on the likely effects of those adjustments, their practicality and so their reasonableness.

166.      Conclusion. Subject to the timing argument based on R6 and the Catch 22 argument, if we had concluded that either MM nor DM had established an individual breach of the anticipatory duty so that one or both of them had live claims we would have granted the Secretary of State an adjournment to carry out his proposed pilot on possible post-ESA50 changes.  This is because, in our view, without the evidence it would provide we are not in a position to reach a properly informed decision on whether the adjustments proposed by the applicants are reasonable. 

167.      For example, piloting would address the points we have made above on consistency and obtaining useful information and inform whether what is proposed by the applicants would be likely to result in a significant drop in the number of claimants called for a face-to-face interview, and/or a significant  improvement in decision making and whether it would be a cost effective and proportionate response to the substantial disadvantage we have found to exist to the class of claimants who have mental health problems.

168.      For the reasons we have given we have concluded that the Secretary of State should not be prevented from providing this centrally important information on the basis that it is now too late for him to do so.

169.      We would have regarded this as a case management issue and so one that would leave open the timing argument.

The timing argument [R6] and the Catch 22 argument

170.      In these claims these arguments are academic because on assumptions favourable to them we have found that MM and DM have not established an individual breach.

171.      The Catch 22 argument was not addressed as such in any detail in argument. If it had not been academic and in large measure overtaken by our view that the Secretary of State would have been given time to conduct his proposed pilot and put in evidence about it before we made our final decision, we would have invited further submissions on it.  This would have included a request for submissions on pragmatic solutions and the ability of a court or tribunal generally and/or in judicial review proceedings to tailor the remedies it grants to avoid substantial injustice.

172.      As we heard argument on the timing argument and there is the possibility of another appeal or application for judicial review we turn to consider it.

173.      The Secretary of State suggested that the relevant time for MM was when his application for ESA was being considered (October 2010 to July 2011).  An alternative for MM could have been his reassessment (September 2012).  The relevant time for DM had not arrived at the time of the July 2014 hearing because it was not then known when she would have become subject to the conversion process. 

174.      We acknowledge that there may be timing points to be made when determining whether (a) there has been a failure to comply with the duty to make reasonable adjustments (i.e. to take such steps as it is reasonable to have to take to avoid the relevant substantial disadvantage established on a class basis – the s. 20(3) test), and (b) there has been a failure to comply with that duty in relation to an individual - the s. 21(2) test. 

175.      Also, we acknowledge that some cases will involve only an historical analysis such as that referred to in Leeds Teaching Hospital v Foster [2011] EqLR 1075 at [20], which related to wording that is not in the Equality Act.  Another example is the approach applied in Finnigan.  But, in our view, as is demonstrated by the case of DM, both assessments can naturally, and should, be carried out by reference to a continuing situation and thus to the present and the future.  This introduces a consideration of the risks that a person is likely to be subjected to as (or if) and when a provision, policy/criterion or practice applies to them, and thus by reference to what the position is likely to be if at that stage there is, and so has been (or may have been), a failure to comply with the duty to make reasonable adjustments. 

176.      This is the approach we have taken when considering both MM and DM on the assumptions we have set out.

177.      It follows that, in our view, an analogy with other causes of action which have to exist at the time the proceedings are issued is not apposite.

178.      In our view:

i)             the nature of an anticipatory and continuing duty to make reasonable adjustments,

ii)            the stepping stones set by the Equality Act and in particular those in s. 136(2) and (3) and so the imposition of an onus (in this case on the Secretary of State) to show that adjustments proposed by the claimants are (and on his case were) not reasonable steps for him to take,

iii)          the definition of substantial disadvantage which refers to a benefit which is or may be conferred by the exercise of a function and a detriment that a person is or may be subjected to in its exercise,

iv)          the general approach laid down in Finnigan, namely that what is or would have been a reasonable adjustment should be decided before one turns to consider whether the individual can establish a breach, and

v)            the purposes of the Equality Act which include compliance with the UK’s obligations under the UN Convention on the Rights of Persons with Disabilities

all point to a conclusion that an applicant can rely on past and present events and future risks in establishing the class disadvantage (and so the duty to make reasonable adjustments) in his or her individual claim.  It follows that unless the issues are confined to the period up to the making of what are accepted to be the relevant reasonable adjustments the general starting point for the court or tribunal will be to assess what are, and are not, reasonable adjustments as at the date of the hearing.

179.      This does not exclude timing points being taken or their being relevant (e.g. it was not reasonable to have made the adjustments before a certain date), but it is likely that that timing issue will be informed by an objective identification of what the reasonable adjustments are as at the date of the hearing. 

180.      Take this case.  If we had adjourned so that we could consider evidence provided by the Secretary of State’s proposed pilot, and had concluded that the applicants’ proposed adjustments or some of them were steps that it is reasonable for the Secretary of State to have to take to avoid the substantial disadvantage we have found to exist for claimants with mental health problems as a class (the statutory question set by s. 20(3)), that conclusion would be relevant to the Secretary of State’s argument that at earlier stages it was not reasonable for him to have taken those steps (or some of them) without piloting.  This is because that conclusion identifies by reference to the parties’ respective cases what is or is not a reasonable adjustment, and so the parameters of the issues relating to timing.  This timing point would bring into play the applicants’ argument that, as the test is objective, what is reasonable at the date of the hearing was reasonable 3 years ago (i.e. when MM’s application was being considered) and the impact of good administration and the institutional competence of the Department in determining what was reasonable at given times.  These raise fact sensitive issues and we express no view on them.

181.      An assessment at the time of the hearing of what steps it is reasonable for a person to have to take to avoid a substantial disadvantage may also be relevant to enable the court or tribunal to deal fairly as between the parties when up to date evidence demonstrates that what would have been reasonable steps to take to avoid a substantial disadvantage are no longer reasonable, or that the identified substantial disadvantage no longer exists for reasons unconnected with the Equality Act.  In those circumstances it would enable the court or tribunal to avoid making an order requiring a party to take steps which are no longer reasonable to be taken whilst compensating a claimant for a failure to take what would have been reasonable steps.  This flexibility would be precluded by a rigid historical approach and in our view Parliament cannot have intended that a court or tribunal could not consider up to date evidence with a view to considering what steps it should require a person to take to avoid a substantial disadvantage.

Miscellaneous

182.      By their position statement in May 2014 the Charity Interveners identified what they maintain would be reasonable adjustments.  These overlap with but are not the same as those advanced by the applicants.  It was accepted that the Charity Interveners could only support reasonable adjustments proposed by the applicants.  To the extent that their proposals are “on the menu” they do not raise different points to those raised by the applicants.

183.      The applicants sought to rely on transcripts of evidence given in Parliamentary Select Committee.  We have not placed any reliance on that evidence because we agree with Mr Chamberlain that to do so in the manner suggested on behalf of the applicants would infringe article 9 of the Bill of Rights and/or Parliamentary privilege applying the principles and authorities set out in Office of Government Commerce v Information Commissioner (Attorney General intervening) [2010] QB 98.    

184.      We express the hope that the Secretary of State will carry out his proposed pilot as soon as possible.  In our view, the evidence it will provide is clearly needed to inform what (if any) reasonable steps should be taken by the Secretary of State in respect of the substantial disadvantage to claimants who suffer from mental health problems that we have found to exist.

 

 

 [Signed on original]                                                       

                                                                            Mr Justice Charles

 

 

 

 

                                                                            Upper Tribunal Judge Jacobs

 

 

 

                                                                            Upper Tribunal Judge Shelley Lane

 

Dated 9 March 2015