Mental health patients (MHPs) claiming Employment and Support Allowance (ESA) argued that the government was failing to make reasonable adjustments under the Equality Act 2010. The Court of Appeal largely upheld an Upper Tribunal judgment which had found MHPs were being put at a substantial disadvantage. (The tribunal had felt unable to decide on current evidence what adjustment would be reasonable.)
Court of Appeal, Dec 2013. Court of Appeal full judgment (bailii.org). Also Upper Tribunal judgment (administrativeappeals.decisions.tribunals.gov.uk) which was being appealed against.
The applicants, supported by charities, argued that Equality Act rights of mental health patients were breached by procedures for assessing whether someone is entitled to Employment and Support Allowance (ESA). Mental health patients (MHPs) were defined as people with impaired mental, cognitive, or intellectual difficulties (sic).
They argued that where an MHP was claiming ESA, those assessing the individual’s entitlement to ESA should request further medical evidence (FME) from treating doctors and mental health services who had worked with the individual. Failure to do so was, they argued, a breach of the duty to make reasonable adjustments under Equality Act 2010.
An alternative submission was that a less rigorous adjustment could be made. Even if FME need not be sought in every claim made by a MHP, the decision-maker should at least be required to consider obtaining FME in the case of MHP claimants. If FME was not sought, the decision-maker should explain why it was thought to be unnecessary.
The Upper Tribunal held that the current arrangements put MHPs at a substantial disadvantage, but it directed the government to carry out further investigation as there was not enough evidence on what adjustments would be reasonable. The government appealed to the Court of Appeal. The latter largely dismissed the appeal, though it held the tribunal had overstepped its powers in directing further investigation.
Brief summary of Upper Tribunal and Court of Appeal judgments
Prima facie breach of reasonable adjustment duty
The Upper Tribunal was satisfied that a significant number of claimants with MHPs were placed at a substantial disadvantage by current practice in assessing entitlement to ESA. Contrary to the government’s argument, the first limb for a breach of the reasonable adjustment duty (ie substantial disadvantage) was therefore satisfied.
This was upheld by the Court of Appeal, which dismissed arguments by the government that:
- the claimants were not sufficiently impacted by any failure, so were not entitled to claim – see How far need the claimant be affected by the failure to make the reasonable adjustment?,
- it was improper for the Upper Tribunal to have regard to generalised, substantially anecdotal, statements about the problems facing MHPs, and
- the Upper Tribunal had taken too broad a view of what can be a substantial disadvantage – see Substantial disadvantage and public functions.
Reasonableness and further evidence
What steps was it reasonable for the government to have to take to avoid this substantial disadvantage? The Upper Tribunal said it did not currently have sufficient evidence to determine this.
However, the Upper Tribunal favoured a recommendation by Professor Harrington, which would involve greater consideration of whether further documentary evidence should be sought, including FME, and having to justify any decision not to seek it. The tribunal concluded that before it made a final determination on what reasonable steps were required, the government should be directed to carry out an investigation/assessment as to how the recommendation could be implemented.
The Court of Appeal held that the Upper Tribunal had overstepped its powers in directing the government to carry out such an investigation/assessment.
Further points from the Upper Tribunal judgment
How far need the claimant be affected by the failure to make the reasonable adjustment?
The Upper Tribunal seems to say that the individual claimant does not need to suffer a substantial disadvantage. One looks at whether the practice puts disabled people at a substantial disadvantage, and how far it would be reasonable for the government to take steps to counter that, eg by asking for FME.
Assuming it was a reasonable adjustment to seek FME (decided on that group basis), an individual has a claim if the government (or other public authority or service provider) fails to comply with that duty “in relation to” that individual: s.21(2) EqA. The Upper Tribunal said that in the present case this meant the individual had a claim if in that individual’s particular case FME was not sought as required by the reasonable adjustment. The claimant did not have to show the failure affected whether or not the individual got the ESA benefit. That could be relevant in assessing compensation, but the individual still had a claim. (See from para 93 of judgment).
In the Court of Appeal, the government argued that the claimants in this case had no right to claim because they were both suicide risks, and therefore under the current rules FME had to be obtained in any event (though in fact this had not happened). The Court of Appeal disagreed with this argument. It said that the proposed FME adjustment required the possibility of FME to be kept under review, while the rules on suicide risk just required FME to be obtained at some point. Also a blanket rule to consider FME in all mental health cases would reduce the chance of it being overlooked in cases of suicide risk. (Para 51 to 57 of judgment).
The Court of Appeal disagreed with the Upper Tribunal’s view that a charity, for example, could bring a judicial review claim even without showing there had been a breach of the reasonable adjustment duty in relation to a particular individual (para 49 & 50). However, the Court of Appeal left open whether a third party such as a charity could bring such a claim in respect of a breach in relation to a particular disabled person, where this person did not want bring a claim themself (para 58).
Substantial disadvantage and public functions
The court discussed the test to decide whether the current practice puts disabled people at a substantial disadvantage. The Equality Act sets out what is meant by “substantial disadvantage” in relation to public functions:
- (a) If a benefit is or may be conferred in the exercise of the function, it means being placed at a substantial disadvantage in relation to the conferment of the benefit.
- (b) If a person is or may be subjected to a detriment in the exercise of the function, it means suffering an unreasonably adverse experience when being subjected to the detriment. (EqA Sch 2 para 2(5)).
Contrary to an argument by the government, the Upper Tribunal held – and the Court of Appeal agreed – that an adverse experience can be a “disadvantage” within paragraph (a), even though “adverse experience” is only mentioned in paragraph (b). One reason was that otherwise there would be the bizarre result that if, say, the experience of undertaking a face to face interview placed MHPs under unnecessary and unacceptable stress not suffered by others, there would be a remedy if the claimant was potentially subject to a detriment because he was at risk of losing the benefit, but not if he was claiming the benefit for the first time.
In more detail: The government argued in the Court of Appeal (from para 70) that the present case was only concerned with conferring a benefit, since in every case the issue is whether a particular welfare benefit, ESA, should be granted or not. Accordingly, so argued the government, the focus here should be on paragraph (a) which is concerned with outcome. It argued that the tribunal was not entitled to treat an adverse experience such as unacceptable stress in the interview as a relevant disadvantage, since it was not a disadvantage identified in paragraph (a). The Court of Appeal disagreed. The court held:
- The exercise of the function in the present case was a benefit for someone who had never received ESA before, but a detriment for someone who was in receipt of it and at risk of having the benefit removed (para 72)
- That being the case, the government’s argument would have bizarre consequences. “It would mean that those seeking a benefit for the first time would only be able to bring a discrimination claim if they could identify one category or type of disadvantage relating to outcome [ie within paragraph (a)]; and those at risk of having the benefit removed would have to identify another relating to the experience of the process [ie within paragraph (b)]. Parliament could not conceivably have intended such an arbitrary consequence. If the experience of undertaking, say, a face to face interview places MHPs under unnecessary and unacceptable stress not suffered by others, that cannot sensibly be said to give a remedy if the claimant is potentially subject to a detriment because he is at risk of losing the benefit but not if he is seeking a benefit.” (para 74)
- The Court of Appeal said at para 75 “…I would not be prepared to accept that Parliament must have intended that the right to claim discrimination in this context would depend upon the classification of the function as one conferring a benefit or a detriment.”
- Furthermore the concept of substantial disadvantage in paragraph (a) could not just be focusing on outcome because that paragraph envisages the possibility that that there may be a substantial disadvantage even where a benefit is in fact conferred. This disadvantage, said the court, can only be suffered as a result of the process. There was no reason why it should not include an unreasonably adverse experience. (para 76)
Further points from the Upper Tribunal judgment
Anticipatory and ongoing duty
Various points were common ground between the parties (and agreed by the Upper Tribunal) in relation to the reasonable adjustment duty as it applies to services and public functions (para 89 of Upper Tribunal judgment):
- the duty to make reasonable adjustments is owed to disabled people generally,
- the duty to make reasonable adjustments is an anticipatory duty,
- the duty to make reasonable adjustments is a continuing duty and so it has to be kept under regular review in the light of experience and so, in this respect, it is an evolving duty.
Particular type of disability
It is a precondition of the reasonable adjustment duty in this type of case that there must be a provision, criterion or practice putting disabled persons generally at a substantial disadvantage. It was – “correctly” said the Upper Tribunal – common ground between the parties that the statutory phrase “disabled persons generally” does not mean that the impact of a practice on a class of disabled people (eg blind or deaf people, and here people with MHPs) cannot be taken into account. The court said that “disabled persons” will generally have to be interpreted by reference to a type or types of disablement (para 106 and 107 of Upper Tribunal judgment).
On that basis, in the tribunal’s view, it was natural to read the statutory phrase “persons who are not disabled” to include “persons who are not so disabled” – ie to include people without that particular type of disability, as well as people who had no disability.
This is a rare decision on disability discrimination as it applies to public functions. The case is particularly interesting in that the claim was not just on how an individual was treated, but rather the general system for assessing entitlement to ESA.
The decision is also interesting for how it interprets the reasonable adjustment duty in relation to services and public functions, including implications of the duty being owed to disabled people generally, and specific wording on what counts as disadvantage in relation to public functions. See Services to the public: reasonable adjustments and Public authority functions.