Upper Tribunal (Administrative Appeals Chamber), March 09, 2015, [2015] UKUT 107 (AAC)

Resolution Date:March 09, 2015
Issuing Organization:Upper Tribunal (Administrative Appeals Chamber)
Actores:MM & Anor, R. (On the application of) v Secretary of State for Work and Pensions & Ors (Equality Act)
 
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THE QUEEN On the application of (1) MM (2) DM v Secretary of State for Work and Pensions And (1) Mind (2) National Autistic Society (3) Rethink Mental Illness (4) The Equality and Human Rights Commission

[2015] UKUT 0107 (AAC)

2

JR/2638/2012 and JR/2639/2012

THE QUEEN On the application of (1) MM (2) DM v Secretary of State for Work and Pensions And (1) Mind (2) National Autistic Society (3) Rethink Mental Illness (4) The Equality and Human Rights Commission

[2015] UKUT 0107 (AAC)

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 7th and 8th 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:

  8. 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'.

  9. 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

  10. 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 2, 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.

    ...

  11. 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).

  12. 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.

  13. 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):

  14. 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.

  15. 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).

  16. 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.

  17. The courts are, nevertheless, required to answer the questions posed by the Equality Act, and in the previous round, we decided that claimants with...

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