Joy Dove v HM Assistant Coroner for Teesside and Hartlepool
| Jurisdiction | England & Wales |
| Judge | Lord Justice Warby,Mrs Justice Farbey |
| Judgment Date | 17 September 2021 |
| Neutral Citation | [2021] EWHC 2511 (Admin) |
| Docket Number | Case No: CO/4764/2020,CO/4764/2020 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2021] EWHC 2511 (Admin)
Lord Justice Warby
Mrs Justice Farbey
and
His Honour Judge Teague QC
Chief Coroner of England and Wales
Case No: CO/4764/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Jesse Nicholls (instructed by Leigh Day) for the Applicant
Mr Jonathan Hough QC and Mr Anthony Jones (instructed by Middlesbrough Council) for the First Respondent
Mr David Griffiths (instructed by Government Legal Department) for the Interested Party
Ms Claire Watson (instructed by MDU Services Limited) for the Second Respondent made no submissions
Approved Judgment
Hearing dates: 22 & 23 June 2021
Introduction
On 21 February 2017, Jodey Whiting died as the result of an overdose of prescription medication. She was 42 years old. On 24 May 2017, the Assistant Coroner for Teesside and Hartlepool (“the Coroner”) held an inquest into her death. The Coroner heard evidence from members of Ms Whiting's family that she had been suffering from severe stress in the period leading to her death. A recent decision by officials within the Department for Work and Pensions (“the Department”) to stop paying Employment and Support Allowance (“ESA”) was said to have contributed to that stress. Ms Whiting had left notes in her home which suggested that she had intended to kill herself. The Coroner concluded that Ms Whiting had died by suicide.
Joy Dove is Ms Whiting's mother. She applies to this court under section 13 of the Coroners Act 1988, with the fiat of the Attorney General, for an order quashing the Coroner's determination and directing that a new inquest take place. I offer my condolences to Mrs Dove and to the family for their tragic loss.
Mrs Dove accepts that Ms Whiting took her own life but submits that there ought to be a new inquest to look at the failings of the Department's staff and their contribution to Ms Whiting's mental state. She contends that there was an insufficient inquiry in the original inquest both at common law and under article 2 of the European Convention on Human Rights (“the Convention”). In addition, fresh evidence has emerged which is said to warrant another inquest. The fresh evidence comprises (i) the report of the Independent Case Examiner (“ICE”) dated 14 February 2019 which followed an investigation into the Department's handling of Ms Whiting's case and which criticised the Department in a number of respects; and (ii) the report of consultant psychiatrist Dr Trevor Turner dated 19 November 2019. The conclusions of Dr Turner are said to provide fresh evidence of a link between the decision to stop Ms Whiting's ESA and her suicidal state of mind. Mrs Dove's case is that the evidence now available makes it likely that a different conclusion would be returned at a fresh inquest, namely a conclusion that identified the Department's role in the circumstances of Ms Whiting's death.
In response to the application, the Coroner maintains that her approach to the inquest was correct but says that she adopts a neutral and non-adversarial position to the outcome of the proceedings. Ms Whiting's GP, Dr Shareen Rahman, does not object to Mrs Dove's application.
By application notice dated 2 June 2021, the Secretary of State for Work and Pensions applied to be joined as an interested party. At a hearing on 11 June 2021, Morris J granted the application while criticising the Secretary of State's delay in seeking to take part in the proceedings ( [2021] EWHC 1738 (Admin)). He limited the Secretary of State to written submissions at the substantive hearing but it was subsequently agreed that she should be permitted to make oral submissions.
We heard submissions from Mr Jesse Nicholls on behalf of Mrs Dove; from Mr Jonathan Hough QC and Mr Anthony Jones on behalf of the Coroner; and from Mr David Griffiths on behalf of the Secretary of State. We are grateful to counsel for their considerable assistance.
Welfare Reform Act 2007: provisions for ESA
It is convenient to start with an overview of the statutory scheme for ESA which was introduced by the Welfare Reform Act 2007 (“the 2007 Act”) and which replaced Incapacity Benefit (“IB”) and certain other disability benefits. By virtue of section 1 of the 2007 Act, ESA is payable on a weekly basis. A claimant is eligible for payments if he or she is assessed by the Department as having “limited capability for work” and the limitation is such that it is not reasonable to require him or her to work. The limited capability must arise from a physical or mental condition. It is fundamental to the scheme of the Act that the assessment of limited capability for work is functional: it focuses on what activity a claimant is capable of doing.
A claimant who is assessed as eligible for ESA will fall into one of two groups. Those in the “work-related activity group” are assessed as being functionally capable of carrying out work-related activity designed to achieve their return to work (section 8 of the 2007 Act). It is in broad terms a condition of payment of ESA that they perform such activity. Those in the “support group” have severe functional impairment. They are assessed as being functionally incapable of carrying out work-related activity and are not required to do so (section 9 of the 2007 Act).
Regulations made under the 2007 Act govern the assessment of whether a person falls into the work-related activity group or the support group. The relevant regulations are the ESA Regulations 2008 as amended and their Schedules. An assessment — called a “work capability assessment”—will consider the extent to which a person is capable of specific and described physical and mental activities. The less that a person is able to carry out an activity, the greater the points that he or she will receive in relation to that activity. A person who receives at least 15 points in relation to one or a combination of activities contained in Schedule 2 to the Regulations will fall into the work-related activity group. A person who satisfies the criteria in relation to a Schedule 3 activity will qualify for the support group.
As part of the work capability assessment, a claimant may be called by an approved health care professional (“HCP”) to attend a medical examination (Regulation 23(1)). A claimant who fails to attend without “good cause” will (subject to certain exceptions which are not relevant to the present case) be treated as not having limited capability for work and will therefore be ineligible for ESA (Regulation 23(2)).
Factual background
The significant facts are not in dispute and may conveniently be taken from Mr Hough's skeleton argument which itself draws on the ICE report. Ms Whiting had suffered from spinal conditions from her early twenties which gave her back pain, requiring surgery and regular painkilling medication. She had a history of mental health problems, including depression, drug dependence and a diagnosed condition of emotionally unstable personality disorder. She had a history of suicidal ideation and the expression of suicidal intent. Her medical notes contain references to multiple overdoses, including nine between January 2009 and July 2015.
From October 2006 to September 2012, Ms Whiting received IB and Income Support. In late 2012, she was assessed for ESA which was being gradually introduced under the 2007 Act. In line with legislative procedures, she underwent a work capability assessment which included an assessment by a HCP whose report concluded that she had severe mental health problems.
The Department decided to award Ms Whiting ESA from September 2012 for a period of two years. She was placed in the support group, meaning that the Department recognised that she suffered from a severe health condition. As she had been placed in the support group on mental health grounds, the Department put a flag on its system. The flag was intended to trigger a request to her GP to provide medical evidence in future ESA reassessments, which would enable the Department to decide whether a face-to-face medical assessment should be required.
In September 2014, Ms Whiting's entitlement to ESA was reassessed. In the questionnaire that she completed for the Department at that time, she stated: “Most days I want to kill myself, if my doctor doesn't get the pain under control asap I plan 2 kill myself.” She also said: “24/7, don't want to and can't get away from all my illness.” Her GP provided medical evidence that she had an emotionally unstable personality, with stress, low mood and anxiety. In these circumstances, the Department did not ask her to attend a face-to-face medical assessment. Her ESA was extended for a further two years and she remained in the support group. From 29 July 2015, she also received an award of Personal Independence Payment (“PIP”), migrating to PIP from Disability Living Allowance.
In September 2016, Ms Whiting began a further reassessment process. She completed another questionnaire which was received by the Department on 20 October 2016. In the questionnaire, she stated that she needed to be assessed by means of a home visit as she rarely left the house due to mobility problems and anxiety. She referred to her psychiatric care. She stated that she had suicidal thoughts “a lot of the time.” The questionnaire was passed to the Centre for...
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