The High Court upheld a claim that it was irrational for RCGP to simply refuse to consider additional attempts at a written assessment for becoming a GP, if the candidate was later diagnosed with a disability that would have entitled her to reasonable adjustments. Her claim therefore succeeded under administrative law. This meant the court did not have to consider her Equality Act claims, but it did so and concluded that they would fail (despite the treatment being irrational). My comments are below.
2024, High Court. [2024] EWHC 2211 (Admin). Full decision www.bailii.org/ew/cases/EWHC/Admin/2024/2211.html
Facts
The claimant K was a trainee general practitioner. She challenged a decision of the Royal College of General Practitioners (RCGP) refusing to grant her a further attempt at its Applied Knowledge Test (“AKT”), when she was diagnosed with a disability which, if known at the time, would have entitled her to reasonable adjustments [§1-2].
The AKT was one of three assessments that had to be passed for membership of the RCGP. Successful completion of these RCGP assessments was a requirement before the General Medical Council would issue a Certificate of Completion of Training (CCT) allowing the doctor to practice as a GP. The RCGP’s assessment process was governed by its Membership of the Royal College of General Practitioners Regulations for doctors training for a CCT in General Practice (MRCGP regulations). At the time of the claim, the RCGP permitted a maximum of four attempts at the AKT, with a fifth attempt being permitted exceptionally on the basis (only) of additional educational attainment.
After three failed attempts at the AKT, K’s educational supervisor told her he suspected she might have a neurodiverse condition. A neurodiversity assessment confirmed that she did. On her fourth attempt she was accordingly granted 25% extra time by way of reasonable adjustment, and failed by only a small margin. The RCGP refused her request to void attempts made before her diagnosis, but it did agree an exceptional fifth attempt on the basis of additional educational experience. This too she failed by a small margin. The RCGP refused to allow a sixth attempt. [§12-21]
Held by the High Court: the RCGP policy was irrational, so K’s claim succeeded under administrative law. The court therefore did not have to consider the Equality Act claims, but it did so and concluded that they would fail.
Administrative law
In brief, K’s claim succeeded on the basis that RCGP’s decision was irrational, below.
The High Court accepted that it could not consider a matter of “academic judgment”. However, RCGP had not put forward evidence that this applied in the present case. The court therefore proceeded to consider the case. [§25-32]
On the issue of delay in applying for judicial review, the court allowed K’s application to proceed, but not that of the British Medical Association (BMA) [§33-56]. Also, the court accepted that judicial review was an appropriate remedy as regards the discrimination claims [§57-73].
Turning to the particular claims, K argued that RCGP was not allowed to fetter its discretion, by refusing to contemplate allowing someone in her position to have a further attempt at the AKT. The court rejected her argument, holding that this principle applied mainly when applying a discretion granted by a statute. The RCGP’s powers, on the other hand, derived from its Royal Charter, whose grant was an act of the royal prerogative. The court held that the RCGP was not under a discrete obligation not to “fetter its discretion”. [§74-90]
Irrationality
RCGP therefore had a wide discretion to apply and operate its own scheme. However, the court said the scheme’s criteria must be rational. There must be some reasoned basis. Here the court agreed with K that the complete exclusion of additional attempts following a late disability diagnosis was irrational.
The court said there was no merit in any of RCGP’s suggested reasons for its attempts policy. The court added:
108. Furthermore, standing back from the fray, I can see no justification that could be advanced for an arrangement that says it is right to allow disabled candidates who know of their disability to benefit from, say, additional time in which to sit their examinations, but “not possible” to make equivalent allowance for disabled candidates who discover their disability after failed attempts at the tests. That different treatment is irrational. It is different treatment between classes of disabled people depending simply on when they discover their disability.
The court therefore quashed the RCGP’s decision refusing K a sixth attempt, and quashed the rule itself so far as it related to the AKT. (The limitation to the AKT was not because the rule was lawful for other assessments, but because K was directly affected only as regards the AKT. The BMA’s application for judicial review included another assessment, but had been disallowed for delay.) [§91-111]
Equality Act claims
That being the court’s conclusion on the common law challenges, it was not strictly necessary for the court to consider the Equality Act (EqA) grounds of challenge. However, the court briefly set out its conclusions on those [§112].
It was undisputed that K’s neurodiverse condition was a disability within the EqA [§122]. Also it was agreed that the RCGP was a qualification body within s.53-54 EqA. (Professional exam bodies). [§120]
Reasonable adjustments
There had been difficulty identifying the provision, criterion or practice (PCP) to which the reasonable adjustment duty might apply (Reasonable adjustment rules: employment>What is a “provision, criterion or practice” (PCP)?). The court said the formulation of the PCP could not be “no additional attempts for any reason save for exceptional academic progress” or “no attempt shall ever be voided” or “only allowing four (exceptionally five) attempts at the AKT and/or refusing to void, discount or annul attempts” (all floated K or the BMA) because they were factually inaccurate – the RCGP might declare an attempt void under its appeals process. The one remaining formulation “the College will never make a reasonable adjustment for a disabled trainee who receives a late diagnosis“, was factually accurate, said the court, and a realistic assessment of the position. That was the PCP that was applied. [§123]
However, the court accepted RCGP’s argument that this PCP was not capable of founding a reasonable adjustment claim, because it could not be applied to both disabled and non-disabled applicants. The reason it could not apply to both was that only a disabled person could apply for reasonable adjustments. As the Court of Appeal had said in Ishola, the PCP must be capable of being applied to others, to test whether the PCP put disabled people at a disadvantage compared with them. The reasonable adjustment claim therefore failed. [§124-125]
The reasonable adjustment claim also failed on the ground that, at the material time, RCGP did not know of her disability, or indeed that she was likely to be placed at a disadvantage (Knowledge of disability). The RCGP did not know, and could not have known, of this until, at the earliest, some months after her fifth attempt. The court rejected K’s argument that this was no answer to RCGP’s failure to make reasonable adjustments once it was informed. The court said that the relevant point in time, for the purposes of knowledge, was when K sat the exams. This was when she suffered the detriment of which she complained. [§126-129]
Indirect discrimination
BMA (and quite possibly K) argued that RCGP’s policy on retakes after discovery of disability was indirectly discriminatory under s.19 EqA (Indirect discrimination). Applying the same policy to those with disabilities would disadvantage them as compared to those without disabilities.[§131]
The court rejected this. It said that as with reasonable adjustments, “the College will never make a reasonable adjustment for a disabled trainee who receives a late diagnosis” was not capable of founding an indirect discrimination claim, because it was not a PCP capable of being applied to both disabled and non-disabled applicants.[§132]
Public sector equality duty (PSED)
The court also rejected a claim under the PSED. The PSED required RCGP to consider, not to achieve a particular result. The RCGP had properly considered the impact of disability on candidates and how it might be ameliorated. [§113-119]
My comments
I’ll limit my comments to Equality Act (EqA) aspects. Note that it might be argued the court’s EqA conclusions were obiter – ie not binding on lower courts – as they were not necessary for its decision.
With respect, I have problems with the court’s reasoning on the EqA. Indeed, it would seem very odd if there was no breach of the EqA despite the RCGP’s approach to late diagnosis being “irrational”, as the court found.
Comments: Could the provision, criterion or practice (PCP) really not be re-formulated?
The court rejected possible formulations of the PCP such as “no additional attempts for any reason save for exceptional academic progress” which applied also to non-disabled people, saying they were factually inaccurate, as the RCGP might declare an attempt void under its appeals process. The court accepted as accurate only a PCP that the RCGP would never make a reasonable adjustment for a disabled trainee with late diagnosis, but said this PCP could not form the basis of a claim as it could only apply to disabled people. (Above Reasonable adjustments; and this was also the basis on which the court rejected the indirect discrimination claim).
However, I don’t understand why the formulation of the PCPs that were rejected as inaccurate could not have been easily tweaked, so that they were both accurate and applied to non-disabled people. For example, one might add at the end of the no additional attempts PCP above “… except so far as previous attempts were declared void on appeal on the grounds stated in the regulations” (which seem to have been unrelated to disability). Or one might come up with a simpler formulation, but it doesn’t have to be simple.
Maybe the court felt it could only add something that had been proposed by the claimant’s lawyers. But at least if a PCP similar to what I suggest were proposed by the claimant, I don’t see why it could not form the basis of both the reasonable adjustment and indirect discrimination claims. It seems to be accurate, applied to both disabled and non-disabled people, and puts disabled people (or people with the same disability as the claimant, see next heading) at a substantial/particular disadvantage.
Comments: PCP may potentially apply only to disabled people
I would argue that – contrary to the court’s view – a PCP may apply only to disabled people, at least for indirect discrimination. However, this argument is not needed if one can re-formulate the PCP as above.
Indirect discrimination
As regards indirect discrimination, s.19 EqA requires that A (here the RCGP) applies, or would apply, the PCP to persons with whom B (here the claimant K) does not share the characteristic. However, s.6(3)(b) EqA says that a reference to persons who share a protected characteristic is a reference to persons who have the same disability (my emphasis). See further Indirect discrimination>”Same” disability. The court does not mention s.6(3)(b).
Say one takes “neurodiverse condition” as the particular disability. It seems likely that a person with this condition is less likely to have had it diagnosed than people with many other disabilities, eg mobility or visual impairments. Accordingly the PCP as formulated by the court, “the College will never make a reasonable adjustment for a disabled trainee who receives a late diagnosis“, seems likely to put people with a neurodiverse condition at a disadvantage compared with people who have different types of disabilities. So s.19 should apply. This argument is based simply on the EqA wording, so on British law. But also there is an EU case which took this approach: VL v Szpital Klinicnzy.
The High Court clearly would have considered the PCP did not meet the s.19 justification test, having found it “irrational”.
Reasonable adjustments
Again, an argument that the PCP can apply only to disabled people is not needed – for either indirect discrimination or reasonable adjustments – if the PCP can be reformulated as I suggest above.
If this were needed though, any argument that for reasonable adjustments too one should focus on the particular disability may be more difficult than for indirect discrimination. But the EAT in the Ishola case (bailii.org) at §47 did say that the question was whether a payroll malfunction had the same degree of adverse effect on those employees on sick pay due to a mental health disability, as on those employees on sick pay (whether or not disabled in the statutory sense) for a different reason, not due to a mental health disability (my emphasis). That issue was not appealed to the Court of Appeal. In the passage quoted by the High Court, the Court of Appeal in Ishola was dealing with a different claim (the employer requiring the claimant to return to work without properly dealing with his grievances), and was focusing on whether a one-off act can be a PCP. The Court of Appeal at §36 said the PCP must be capable of being applied to others, but was not considering whether those others could be people with different disabilities, and indeed said it was similar to indirect discrimination, above.
Also, in case relevant, there is authority that one ignores reasonable adjustments for disability when considering what the PCP is. The PCP is the practice etc before any adjustments were made: Reasonable adjustment rules: employment>PCP is the general practice etc before adjustments are made.
No reasonable adjustment could be claimed if the PCP was the application of a competence standard. However, the High Court does not mention that as being argued by RCGP, and I think it would be difficult to argue in this case.
Comments: Not knowing of disability at relevant time?
By way of a second reason for dismissing the reasonable adjustment claim, the High Court said the relevant point in time, for the purposes of knowledge, was when K sat the exams. That was when she suffered the detriment of which she complained. RCGP was not liable for reasonable adjustments as it did not have actual or constructive knowledge of her disability and disadvantage at that time. Perhaps RCGP found out about it only when she asked for a sixth attempt, citing her disability.
I haven’t researched this, but also the court does not cite any authority for its conclusion. It seems very odd to me. On the face of it, one would expect RCGP to need the knowledge of her disability broadly at the time when it was alleged to have the duty to make the reasonable adjustment but failed to do so. This seems in line with EqA Sch 8 para 20 which says “A is not subject to a duty to make reasonable adjustments if A does not know…”. K was alleging that RCGP had a duty to allow a sixth attempt at the time when she asked it to allow her a sixth attempt, telling them of her disability. She was not alleging it had this duty at the time of her earlier attempts.
It seems to have been accepted that knowledge did not matter for her indirect discrimination claim: Knowledge of disability in indirect discrimination.
