MM and another v Secretary of State for Work and Pensions (Mind and Others intervening)
| Jurisdiction | England & Wales |
| Date | 2014 |
| Year | 2014 |
| Court | Court of Appeal (Civil Division) |
Social security - Employment and support allowance - Assessment - Claims for employment and support allowance assessed by questionnaire and face-to-face interview - Claimants with mental health problems claiming assessment process putting them at “substantial disadvantage” - Whether claimants permitted to seek judicial review of Secretary of State’s failure to make reasonable adjustments for all mental health patients - Whether unreasonably adverse experience caused by assessment process capable of constituting substantial disadvantage - Whether reasonable to make adjustment requiring decision-maker to consider seeking further medical evidence and if not to give reasons -
The claimants were persons with mental health problems who had claimed employment and support allowance under the Welfare Reform Act 2007. They contended that the assessment process for the allowance, which typically involved completing a questionnaire and undergoing a face-to-face interview, put persons with mental health problems at a “substantial disadvantage” in relation to the exercise of a function in comparison with persons who did not have such problems, within section 20(3) of the Equality Act 2010F1 and as defined by paragraph 2(5) of Schedule 2 to that Act. They brought judicial review proceedings seeking a declaration that the Secretary of State for Work and Pensions had breached his duty under sections 20(3), 21(1)(2) and 29(6) of the 2010 Act to make reasonable adjustments so as to avoid that disadvantage. Their suggested reasonable adjustments were that (i) in all cases involving claimants with mental health problems the decision-maker should be required to obtain further medical evidence before making a final decision; alternatively, (ii) in such cases the decision-maker should be required to consider seeking further medical evidence and if not to give reasons why it was unnecessary. The claim was transferred to the Upper Tribunal. In its first judgment the tribunal granted a declaration that the current assessment process for employment and support allowance placed mental health patients at a substantial disadvantage, but rejected the claimants’ first suggested adjustment. In its second judgment the tribunal found that prima facie the claimants’ second suggested adjustment was reasonable and directed the Secretary of State to investigate the reasonableness of that adjustment and to present evidence to the tribunal at a further hearing. The Secretary of State appealed on the grounds that (i) the effect of section 21(3) of the 2010 Act was that a claimant did not have the right to bring a generic claim for judicial review for breach of duty under the 2010 Act; (ii) the Upper Tribunal had misdirected itself as to the meaning of “substantial disadvantage” and had not on the evidence been entitled to conclude that the assessment process put mental health patients at such a disadvantage; and (iii) the Upper Tribunal had impermissibly converted itself into a policy-maker and gone beyond its judicial remit when it had directed the Secretary of State to investigate and to disclose specified information at a further hearing.
On the Secretary of State’s appeal—
Held, (1) that the effect of section 21(3) of the Equality Act 2010 was that there could be no legal proceedings under section 21(2) of the Act except those which sought to establish a claim of discrimination against at least one disabled person to whom the duty to make reasonable adjustments was owed; that although the Secretary of State’s current policy provided that further medical evidence had to be obtained in the cases of the claimants, since they were suicide risks, that policy did not entirely overlap with the proposed duty to consider whether to do so with respect to mental health patients in general; that, therefore, the claimants had an interest in whether their second suggested adjustment was made or not; and that, accordingly, section 21(3) did not bar the claimants from bringing a claim under section 21(2) and they could assert their claim by way of judicial review (post, paras 50, 53, 57, 85, 86, 87).
(2) That the exercise of a function might lead to both a benefit, within paragraph 2(5)(a) of Schedule 2 to the 2010 Act, and a detriment, within paragraph 2(5)(b), depending on the circumstances; that, therefore, a claimant for employment and support allowance might suffer an unreasonably adverse experience when being subject to a detriment, for the purposes of paragraph 2(5)(b), either as a result of the decision-maker’s determination itself or through the process leading up to it; and that, accordingly, since there was evidence to justify the finding that the claimants would be substantially disadvantaged by the greater risk that the decision-maker would not reach the right decision as a result of insufficient information from the claimants themselves and by the greater stress and anxiety imposed on them by the process, the Upper Tribunal had in principle been entitled to find that prima facie discrimination had been committed against the claimants and to declare, as a step relevant to the establishment of a breach of duty, that the current policy created a substantial disadvantage to persons with mental health problems generally (post, paras 60, 66, 72–73, 75–77, 85, 86, 87).
(3) Allowing the appeal in part, that the duty of the Upper Tribunal on a claim of discrimination by virtue of a failure to comply with the duty to make reasonable adjustments, pursuant to section 21(2) of the 2010 Act, was to determine whether any of the adjustments identified by the claimant were reasonable or, where, as in the present case, the burden of proof had shifted pursuant to section 136 of the 2010 Act, to determine whether the Secretary of State had shown that they were not reasonable; that it was proper for the tribunal to adjourn to allow further evidence to be adduced on the reasonableness issue, or to indicate that it was not satisfied that the material which it had seen demonstrated that the proposed adjustment would be unreasonable; but that it was not the duty of the tribunal to determine for itself what constituted a reasonable adjustment or to supervise the process of evidence-gathering by issuing directions to the Secretary of State, who was entitled to adduce such evidence and advance such arguments as he thought appropriate; and that, accordingly, by issuing the directions which it had the tribunal had exceeded its jurisdiction and those directions would be quashed (post, paras 81–85, 86, 87).
Quaere. Whether interveners could have sufficient standing in principle to bring judicial review proceedings to establish a generic breach of duty under the Equality Act 2010, provided that in the course of those proceedings they were establishing a specific act or acts of discrimination which fell within section 21(2) (post, paras 58, 86, 87).
The following cases are referred to in the judgment of Elias LJ:
Archibald v Fife Council
Cooke v Secretary of State for Social Security
Eba v Advocate General for Scotland (Public Law Project intervening) (Note)
Roads v Central Trains Ltd
The following additional cases were cited in argument:
Datec Electronic Holdings Ltd v United Parcels Service Ltd
Duncan v Secretary of State for Defence
Dupont de Nemours (EI) & Co v ST Dupont (Note)
Environment Agency v Rowan [
Finnigan v Chief Constable of Northumbria Police
Foster v Cardiff University [
Holy Cross, Pershore, In re [
Lalli v Spirita Housing Ltd
Nottingham City Transport Ltd v Harvey [
R v Secretary of State for Employment, Ex p Equal Opportunities Commission [
R (Cart) v Upper Tribunal (Public Law Project intervening)
R (Lunt) v Liverpool City Council
Royal Bank of Scotland plc v Allen
Secretary of State for Work and Pensions v Alam [
Smith v Churchill Stairlifts plc
The following additional case, although not cited, was referred to in the skeleton arguments:
Ross v Ryanair Ltd
APPEAL from the Upper Tribunal (Administrative Appeals Chamber)
By a claim form dated 5 March 2012 and subsequently amended during the substantive hearing, the claimants, MM and DM, sought judicial review of the eligibility assessment process for employment and support allowance (“ESA”) introduced by the Secretary of State for Work and Pensions under...
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