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, by not requiring officials to actively consider obtaining further medical evidence (FME) in certain circumstances, such as if information indicated the person was unable to engage effectively with the process. The Court of Appeal upheld an Upper Tribunal decision that MHPs were put at a substantial disadvantage by current procedures, but held that the tribunal had overstepped its powers in directing further investigation by the government to help decide what adjustments were reasonable. The Upper Tribunal, when the case returned to it, held that in any event the failure to make the adjustments sought did not put the individual claimants at a substantial disadvantage, so they could not claim.
2013-2015, Court of Appeal & Upper Tribunal. Judgments: Upper Tribunal 2015 (bailii.org), March 2015 (“Upper Tribunal (2015)”); Court of Appeal (bailii.org), December 2013; original Upper Tribunal 2013 (bailii.org), May 2013 (“Upper Tribunal (2013)”), appealed to the Court of Appeal. (Also Upper Tribunal on costs (bailii.org), October 2015, summarising the litigation.)
Facts
The claimants, and charities, argued that procedures for assessing whether someone is entitled to Employment and Support Allowance (ESA) breached the Equality Act rights of mental health patients. Mental health patients (MHPs) were defined as people with impaired mental, cognitive, or intellectual difficulties (sic).
The claimants argued that where an MHP was claiming ESA, those assessing the person’s entitlement to ESA should at various stages, if certain triggers were present, actively consider whether to obtain further medical evidence, and if they decided not to should justify that decision in writing (para 25 of Upper Tribunal (2015)). Failure to have this policy in place was, they argued, a breach of the duty to make reasonable adjustments under Equality Act 2010. One example of a “trigger” would be if information provided indicated that the person claiming benefit was unable to engage effectively with the process.
(In 2013 the claimants’ primary case was that FME should always be sought at an early stage for MHPs, not just actively considered: see para 148 of the Upper Tribunal (2013) decision. But that seems to have been dropped later; it is not in para 25 of the March 2015 decision.)
Held:
- The Upper Tribunal (2013) held that the current arrangements put MHPs at a substantial disadvantage, but 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 Court of Appeal (2013) upheld the decision on substantial disadvantage, but held the Tribunal had overstepped its powers in directing further investigation.
- The Upper Tribunal (2015) considered the case further in the light of the Court of Appeal decision. It held that any failure to make the adjustments argued for had not put either of the claimnants at a more than minor or trivial disadvantage/detriment. Therefore even if it would have been reasonable to make the adjustments for MHPs generally, their claim failed.
Some key points from these decisions
- The Upper Tribunal (2013) held that MHPs were placed at a substantial disadvantage by current practice in assessing entitlement to ESA. A significant number of benefit claimant MHPs were placed at a more than minor or trivial disadvantage. The Court of Appeal upheld this. Below Comparative disadvantage under reasonable adjustment duty.
- In particular the Court of Appeal rejected an argument that the Upper Tribunal (2013) had taken too broad a view of what can be a substantial disadvantage in a claim against a body exercising public functions. Below Substantial disadvantage and public functions.
- In deciding what adjustments would be reasonable, the Court of Appeal held the Upper Tribunal (2013) was not allowed to order the government to carry out further investigation, eg a pilot. Below Were the proposed adjustments reasonable? and Pilots and investigations. As a result the Upper Tribunal (2015) was clearly worried about the Catch 22 of it being unreasonable to make an adjustment without running a pilot, but the tribunal being unable to order a pilot. However this did not matter in the present case since the claim failed anyway (next bullet point), and also the government did propose to conduct a pilot if given an adjournment.
- The Upper Tribunal (2015) held that the claim failed at stage 2 of the two-stage test for anticipatory reasonable adjustments. The tribunal held that on the evidence these two individual claimants had not shown the failure to make the adjustments requested had caused them, was causing or would cause them, any substantial disadvantage (or relevant detriment): below Stage 2 test: How far need the claimant be affected by the failure to make the adjustment? However I think the test applied by the Upper Tribunal (2015) is inconsistent with the Court of Appeal decision: below Comment: Whether these individuals had a claim.
Comparative disadvantage under reasonable adjustment duty
The Upper Tribunal was satisfied that a significant number of benefit 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:
- 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 in a claim against a body exercising public functions: see below Substantial disadvantage and public functions.
On substantial disadvantage to the individual claimants, see below Stage 2 test: How far need the claimant be affected by the failure to make the adjustment?
Substantial disadvantage and public functions
The Court of Appeal discussed the test for whether the current practice of a body exercising public functions (which are not services to the public) puts disabled people at a substantial disadvantage. EqA Sch 2 para 2(5) defines what is meant by “substantial disadvantage” in relation to public functions. This says:
- (a) If a benefit is or may be conferred in the exercise of the function, it means being placed at a substantial (ie more than minor or trivial) 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.
Contrary to an argument put by the government, the Upper Tribunal (2013) 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 for this interpretation was to avoid bizarre results. Say, the experience of undertaking a face-to-face interview placed MHPs under unnecessary and unacceptable stress not suffered by others. It would be odd if there were a remedy if the claimant was at risk of losing the benefit and so potentially “subject to a detriment”, but not if the person 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 adverse experience was not a disadvantage identified in paragraph (a). The Court of Appeal disagreed, and held as follows:
- 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)
Were the proposed adjustments reasonable?
Reasonableness: Upper Tribunal (2015)
The Upper Tribunal (2015) did not have to consider this because it had decided that even if the adjustments were reasonable, the individual claimants had not suffered disadvantage or detriment (below) and so could not claim. Even so the tribunal considered the question. The onus was on the government to show that the proposed adjustments (listed at para 25 of Upper Tribunal (2015)) were not reasonable.
- Before ESA50: The tribunal decided it was not reasonable, on the triggers proposed by the claimants, to have to consider whether further medical evidence was needed before issuing an ESA50 form the for the individual to fill in (para 98-124).
- After ESA50: As regards proposed adjustments which would require the need for further medical evidence to be considered at various points after the ESA50 had been completed, on certain triggers, the tribunal considered that various proposed adjustments might be reasonable but would need to be piloted (para 125-155).
Pilots and investigation: history of decisions
The Upper Tribunal (2013) 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 (from para 162). The tribunal decided that before it made a final determination and order as to what steps would be reasonable, the government should be directed to carry out an investigation/assessment within a defined time as to how this “Evidence Seeking Recommendation” could be implemented (para 168 of Upper Tribunal (2013), and detailed order quoted at para 80 of Upper Tribunal (2015)).
The Court of Appeal (2013) held the Upper Tribunal was not entitled to order this. The tribunal’s duty was to determine whether the adjustment identified by the claimant is reasonable, and in some cases (as here) the burden may shift to the other party to demonstrate that it is not. It would be perfectly proper though for the tribunal to adjourn to allow further evidence to be adduced on the reasonableness issue. Also the tribunal could properly indicate that it was not satisfied that the material it had seen demonstrated that the proposed adjustment would be unreasonable, and it was helpful for the tribunal to indicate the kind of material it thought might assist it to reach a conclusion on the question. However ultimately it was for the government to adduce such evidence and advance such arguments as the government thought appropriate in order to discharge the burden placed on it.
When the case returned to the Upper Tribunal, the government (in April 2014) applied for an adjournment to enable it to carry out a pilot of adjustments after submission of the ESA50. However an adjournment was refused (para 97 & 157 of Upper Tribunal (2015)).
The Upper Tribunal (2015) said a properly informed view on what adjustments should be made post-ESA50 could not be reached without a pilot (para 158). Subject to the timing argument the Catch 22 argument (below), if the tribunal had concluded that either MM nor DM had established an individual breach (below) of the reasonable adjustment duty, the tribunal would have granted the government an adjournment to carry out its proposed pilot on possible post-ESA50 changes. This was because without the evidence it would provide, the tribunal was not in a position to reach a properly informed decision on whether the adjustments proposed by the claimants were reasonable (para 166-169).
Pilots and Catch 22 argument: Upper Tribunal (2015)
The Upper Tribunal (2015) saw considerable force in the propositions that:
- 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
- the results of a properly focused pilot would provide important evidence on many relevant factors relating to the reasonableness of any change (para 40).
The Upper Tribunal said the Court of Appeal’s conclusion that the tribunal could not order the government to carry out a pilot (above Pilots and investigation: history of decisions) leads to a “Catch 22″ argument (para 43-44) that:
- the pilot itself cannot be an adjustment,
- a court or tribunal cannot order the government to carry out a pilot under the jurisdiction conferred by the Equality Act, and
- it would not be reasonable to make the change without a pilot to assess its practicality and effectiveness,
This meant although the tribunal had found the ESA scheme put the class of claimants with mental health problems at a substantial disadvantage, (a) it was not reasonable for the government to take a step to avoid that disadvantage post-ESA50 without carrying out a pilot and (b) it cannot be in breach of the reasonable adjustment duty unless and until the government has carried out a pilot, since whether and when and on what basis it will do so is a matter for it and it alone (subject to judicial review of its failure to make a decision on the content and timing of the pilot). The effect of this argument was that the government held all the public law cards and could 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 would be held (para 43-44).
If it had been relevant in this case, the tribunal would have invited further submissions on the Catch 22 argument. “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.” It was not relevant in the present case since the claim failed anyway (Stage 2 test below), and also the government did propose to conduct a pilot if given an adjournment. (para 170-171)
Timing
The Upper Tribunal (2015) discussed various issues about the time as at which substantial disadvantage to the relevant class of disabled people should be assessed (an applicant could rely on past and present events and future risks), and also timing as regards assessing the reasonableness of adjustments. See paras 170-181.
Court limited to considering adjustments proposed by claimant or those fairly “on the menu”
The Court of Appeal (at para 81-82) said the court’s task was to determine whether any of the adjustments proposed to the court by the claimants would be reasonable. It was not the court’s duty to determine for itself what constituted a reasonable adjustment or to supervise the process of evidence gathering.
The Upper Tribunal (2015) at para 30-31 decided that – with the proviso that the government must have a fair opportunity to address any modification of an adjustment advanced by the claimants – the Court of Appeal was “not limiting our task only to considering the adjustments suggested by the [claimants] construed strictly.” The government accepted that the court could also consider what was fairly “on the menu”. This provided flexibility governed by the principle of fairness. For example if the proposed reasonable adjustment was a ramp, the court was not precluded from considering modifications of the designs advanced by the claimant.
(See further Reasonable adjustments by service providers>Court limited to considering adjustments proposed by claimant.)
Stage 2 test: How far need the claimant be affected by the failure to make the adjustment?
Stage 2 test: Upper Tribunal (2013)
The government argued (para 93) that the claimants could not show the duty to make the alleged reasonable adjustment was breached in their particular cases (ie stage 2 of the two-stage test), because they could not show that it had any impact on the conferment of the benefit on them. It had not affected payment of their entitlement to ESA. The government based this argument particularly on s.21(2)(3) EqA, which says that an individual has a claim if the public authority or service provider fails to comply with the reasonable adjustment duty “in relation to” that individual, but that (broadly) the reasonable adjustment duty is not actionable otherwise.
The Upper Tribunal said s.21(2)(3) EqA did not stop the court declaring that there was a breach at stage 1 of the two-stage test, but the Court of Appeal (below) overruled the tribunal on that. The Upper Tribunal also said that at stage 2 of the two-stage test – presumably EqA s.21(2)(3) – “individual applicants could establish a breach of duty on the basis that FME was not sought in accordance with the adjustment that should have been made, and could do this without showing that the breach of duty had an effect on the conferment of the benefit (i.e. the establishment of their entitlement to ESA). But, if they cannot show this effect, it may mean that they can claim no, or only reduced damages (e.g. for distress and injured feelings). But, if that was the case, they could still seek a declaration that there was a breach of duty in relation to them as individuals.”
See from para 93 of Upper Tribunal (2013).
Stage 2 test: Court of Appeal (2013)
In the Court of Appeal, the government argued that the claimants in this case had no right to claim under s.21(2) EqA (stage 2 of the two-stage test) because they were both suicide risks, and therefore under the current policy FME had to be obtained in any event (though in MM’s case by oversight this had not happened). The government argued the Upper Tribunal (2013) therefore had no jurisdiction to declare that the current procedures gave rise to a substantial disadvantage. A blind man using a stick but not a guide dog would not be able to claim against a restaurant which barred guide dogs, as the restaurant’s rule had no relevance to him. (para 51-52)
The Court of Appeal disagreed with the government’s argument. If the current policy to obtain FME for those deemed a suicide risk overlapped entirely with the proposed evidence-seeking adjustment, the court would have accepted the argument. However “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 current policy on suicide risks did not entirely overlap with the proposed FME adjustment. That was so even assuming the current policy would lead to FME being sought. First, said the Court of Appeal, the proposed adjustment required the possibility of FME to be kept under review throughout the decision-making process, while the rules on suicide risk just required FME to be obtained at some point. Second, a blanket rule to consider FME in all mental health cases would reduce the chance of it being overlooked in cases of suicide risk. Therefore, said the court, s.21(3) EqA did not bar these claimants from bringing a claim under s.21(2). (Para 53 to 57 of judgment). I have summarised this as I understand it. However the Upper Tribunal in 2015, below, understood it differently.
The Court of Appeal said the analogy of the blind man using a stick (above) was not apt:
“A closer analogy is a situation where the rule provides that no guide dogs can be admitted to a restaurant save where the blind man was a friend of the owner. In the absence of the owner, there would be a risk that the friend would not be recognised as such and the guide dog might be refused entry. That would not happen if the generic rule admitting all guide dogs applied. The friend would therefore still have an interest in the wider rule being adopted.”
The Court of Appeal said that if there had not been a breach in relation to those individuals, s.21(2)(3) EqA would have barred even a claim for “judicial review”, whether brought by disabled individuals or by a relevant charity. The court said: “In my view the effect of [s.21(3) EqA] is that the [reasonable adjustment] duty must be treated as though it simply does not exist save for the purpose of establishing an act of discrimination against a disabled person” (para 49 & 50). 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, if this person did not want bring a claim themself (para 58).
Stage 2 test: Upper Tribunal (2015)
The government argued that the Court of Appeal’s decision left open the question of whether the government had discriminated against the individual claimants. This meant it was necessary for each of the two claimants to show that they as an individual had been substantially disadvantaged, and that a proposed reasonable adjustment would have made a difference to the claimant. The claimants argued it was sufficient for the individual merely to show an interest in, or connection with, the reasonable adjustment.
The tribunal accepted the government’s argument. It said the Court of Appeal (above) had been addressing part of the stage 1 test, namely whether a class of disabled persons was put at a substantial (ie more than minor or trivial) disadvantage by the disputed provision, criterion or practice, not the stage 2 test of whether a particular individual had a claim. (This seems wrong to me: below Comment: Whether these individuals had a claim.)
Stage 2 test: Upper Tribunal’s consideration of the evidence (2015)
The Upper Tribunal (2015) went on to consider whether each of the two claimants “(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 (sic) he has suffered, is suffering or will suffer an unreasonably adverse experience in relation to that detriment” (para 60, 64). The tribunal pointed out (at para 60) that this question would be irrelevant if the government established that the adjustments suggested by the claimants (para 25) – and others fairly “on the menu” (para 38) – were not reasonable.
Perhaps(?) clarifying the question the tribunal thought should be asked, the question the Upper Tribunal actually considered on the evidence was whether the claimants could show that the alleged failure to make the adjustments the claimants said were reasonable (and others that could fairly be said to be on the 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” (para 66). The adjustments sought by the claimants were that at various stages, if certain conditions were met (for example if information indicated that the person was unable to engage effectively with the process) further medical evidence must be actively considered, and if not obtained that decision must be justified in writing (para 25).
The tribunal decided that on the evidence the individuals had not shown the more than minor or trivial disadvantage or detriment. Para 77 talks of proof “to the civil standard” which means on the balance of probabilities, ie “more likely than not”.
- On MM, it was more likely than not that if some of the proposed adjutments 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. However the tribunal considered it most unlikely that Atos would actually have called for further medical evidence. There were several reasons for that which, 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. As regards seeking further medical evidence after the face-to-face interview: MM had engaged satisfactorily at the interview, and the doctor concluded his problems did not result in functional difficulties within the descriptors, so the proposed adjustments requiring active consideration of FME after the interview would have been most unlikely to result in a decision to obtain further evidence. The tribunal also rejected an argument that the proposed adjustments would have made a difference when he was reassessed. After MM received the initial adverse decision he felt shock, horror, rage and a deterioration in his health, but he was able to effectively take part in the reconsideration process, with legal advice; his problems had arisen after the decision was given, a point at which no adjustments were sought, and there was nothing to show that the position would be different in the future. (para 67-78).
- On DM, the tribunal was not satisfied by her evidence of “distress and trauma” from a previous benefits interview. The tribunal considered her evidence hard to reconcile with medical evidence obtained by the benefit authorities shortly afterwards. At the time of the hearing (July 2014) DM had feared that when she was converted from the old benefit system to ESA, 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 asserted that even having to fill out an ESA50 would cause her extreme trauma. Even before knowing what actually happened, the tribunal considered DM’s fears were neither realistic nor supportable. Reasons for that included, for example, the tribunal’s view of the previous benefits interview, and DM’s roles as a mental health advocate and campaigner, public speaker, and her involvement in a support group indicated a resilience that in the tribunal’s view undermined her assertions. When the conversion did actually happen (October/November 2014), her Community Psychiatric Nurse (CPN) had helped her with communicating with the benefit authorities and form-filling, the decision-maker noted the mental health flag and obtained further evidence, and she was awarded the new ESA benefit without being called to a face-to-face interview.
Further points from the 2013 Upper Tribunal decision
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 (2013)):
- 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 (2013) – 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 (2013)).
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.
My comments
This set of decisions is rather complex. They seem to be much less cited in later cases than the Court of Appeal’s Finnigan decision around the same time.
Comment: Comparative disadvantage of group – enough that “significant number” were disadvantaged
This case supports the proposition that for the group of disabled people with a particular type of disability to be at a disadvantage, there is no need for all individuals in the group to be disadvantaged. The Upper Tribunal (2013) effectively held it was enough that a “significant number” of them were at a (more than minor or trivial) disadvantage. This does not seem to have been appealed to the Court of Appeal. See Reasonable adjustments by service providers>No need for all people who stammer etc to be disadvantaged.
Comment: Whether these individuals had a claim (Stage 2 test)
The test for whether an individual has sufficient interest to bring a claim under the anticipatory reasonable adjustment duty is a difficult area, particularly in relation to public functions like in this case. The relevant test is stage 2 of the two-stage test for the anticipatory reasonable adjustment duty, and looks at the individual claimant. Stage 1 looks at whether the group of people with that type of disability is at a comparative disadvantage, and what adjustment would be reasonable to avoid the disadvantage.
The Upper Tribunal (2015) held that the Court of Appeal had left open the question of whether the government had discriminated against any individual claimant: above Stage 2 test: How far need the claimant be affected by the failure to make the adjustment?
I cannot see this is right. The Upper Tribunal (2015) said at para 52 that all the Court of Appeal had established was part of stage 1 of the two-stage test, namely that mental health patients (MHPs) were put at a comparative disadvantage. It is true that the Court of Appeal was deciding whether the Upper Tribunal (2013) had been entitled to make a declaration that MHPs were at a comparative disadvantage, which is part of stage 1. However at this point (from para 48) the Court of Appeal was considering whether that declaration was permitted under the stage 2 test. The Court of Appeal was considering whether s.21(2)(3) EqA barred the court from granting any relief (including a declaration of comparative disadvantage) to these individual claimants. As the Court of Appeal said, the question was whether there was a breach of the reasonable adjustment duty “in relation to” these individual claimants (s.21(2) EqA). That was precisely the question the Upper Tribunal (2015) had to answer. The Court of Appeal had held there was a breach.
I can see no indication in the judgments of either the Court of Appeal or the Upper Tribunal (2015) that s.21(2)(3) EqA should be applied differently depending on whether one is looking at jurisdiction to give a declaration for part of stage 1 (comparative disadvantage) or to give a remedy for the claim as a whole. Also it is difficult to see why s.21(2)(3) EqA should be applied differently.
The Court of Appeal (above) did not clearly set out the test it applied. However its test was evidently less stringent than that applied by the Upper Tribunal (2015). The Court of Appeal considered the test was passed on the facts of this case, and gave some other examples of when it would or wouldn’t be passed. Roughly the Court of Appeal seems to have looked at whether the proposed adjustment could potentially have made a difference to the individual claimant. Perhaps this is not far from the “real prospect” test set out by the Supreme Court in Paulley.
On the other hand, the Upper Tribunal (2015) (above) roughly looked at whether the claimant had shown it was more likely than not that the failure to make the adjustment put the claimant at a more than minor or trivial disadvantage. Clearly a Court of Appeal decision overrides one by the Upper Tribunal.
See further Detriment to claimant in anticipatory reasonable adjustments claims, including Detriment to claimant in anticipatory reasonable adjustments claims>Different test for public functions at Step 2?
Comment: Knowledge of disability
There are uncertainties as to how far lack of knowledge of the disability is a defence to the anticipatory reasonable adjustment duty. See Knowledge of disability in anticipatory reasonable adjustment claims.
However the triggers for considering further medical evidence, in the adjustments proposed by the claimants in this case, effectively set out knowledge requirements. Those proposed adjustments are at para 25 of Upper Tribunal (2015). The tribunal considered their reasonableness (including of the triggers) at paragraphs 98-155: above Were the proposed adjustments reasonable?
As discussed at Knowledge of disability in anticipatory reasonable adjustment claims, for this type of adjustment – where disabled people are to be treated differently from others – I think it makes sense that there needs to be some kind of knowledge requirement. It seems sensible that what knowledge or enquiries are required should – as happened here – be considered by the tribunal as part of what anticipatory adjustment is “reasonable”. Specifically on this case, see Knowledge of disability in anticipatory reasonable adjustment claims>MM & DM case.
Adjustments considered by a tribunal are mainly those proposed to it by the claimant. Indeed the burden of proof is likely to be on the other party (here the government) to show the proposed adjustments are not reasonable. It makes sense for the claimant, in formulating adjustments to put to the court, to carefully consider what the adjustments put to the court should say about knowledge and enquiries. Like constructive knowledge in an employment context, it should often be reasonable for an organisation to have to make (reasonable) enquiries, at its cost, if it does not already know of the disability and need for adjustment in an individual case. A court may be reluctant to hold that knowledge/enquiry requirements are laxer than those proposed by the claimant. See further Knowledge of disability in anticipatory reasonable adjustment claims>Including knowledge requirements in proposed adjustments put to court.
