R Alison Turner v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Mr Justice Bourne |
| Judgment Date | 03 March 2021 |
| Neutral Citation | [2021] EWHC 465 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 March 2021 |
| Docket Number | Case No: CO/1689/2020 |
[2021] EWHC 465 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Bourne
Case No: CO/1689/2020
and
Adam Straw and Jesse Nicholls (instructed by Leigh Day) for the Claimant
Clive Sheldon QC and Katherine Eddy (instructed by the Government Legal Department) for the Defendant
Chris Buttler and Angharad Price (instructed by the Equality and Human Rights Commission) for the Intervenor
Hearing dates: 12–13 January 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is a very sad case. It concerns Errol Graham, who died of starvation in or around June 2018 aged 57. Mr Graham was disabled, suffering from long-term depression and hypothyroidism. He had been in receipt of benefits from 2003 onwards. In 2017 his continuing eligibility for Employment Support Allowance (“ESA”) was reviewed. Mr Graham did not engage with the process and, on or around 17 October 2017, the Defendant decided to discontinue payment of ESA. It seems that Mr Graham thereafter made no further contact with any family, friends, agencies or authorities. Rent arrears accrued at the property where he was a tenant of Nottingham City Homes and eviction procedures were commenced. On 20 June 2018, bailiffs broke down the door of the flat and found Mr Graham's body.
The Claimant challenges the lawfulness of the Defendant's policy on ESA and her decision in Mr Graham's case.
Statutory background
Under the Welfare Reform Act 2007, ESA was introduced to replace Incapacity Benefit for those whose ability to work is limited by a physical or mental condition. It is an income replacement benefit, recognising that claimants will have lost potential earnings by reason of their reduced ability to work.
This case concerns means-tested income-related ESA (some claimants receive “contributory ESA” which depends on prior National Insurance contributions). Universal Credit has now replaced income-related ESA in most new claims, but many claimants continue to receive income-related ESA.
A claimant for ESA must satisfy conditions specified in section 1 and schedule 1 of the 2007 Act. These include having “limited capability for work”. Section 1(4) states:
“(4) For the purposes of this Part, a person has limited capability for work if–
(a) his capability for work is limited by his physical or mental condition, and
(b) the limitation is such that it is not reasonable to require him to work.”
Section 8 provides that the question of capability for work shall be determined in accordance with regulations. The relevant regulations in the present case are the Employment and Support Allowance Regulations 2008.
Regulation 19(1) of the 2008 Regulations provides that the question of capability is to be determined on the basis of a “limited capability for work assessment”, sometimes referred to as a “WCA”. This entails the assessment of the claimant's ability to perform activities specified in schedule 2 to the Regulations. Points are awarded if a claimant's case corresponds to various descriptors listed in the schedule, and a total of 15 points is necessary to establish limited capability for work.
The key regulations for the purposes of this challenge are regs 21–24.
Under reg 21(1)(b), information or evidence required to determine whether a claimant has limited capability for work may be requested in the form of a questionnaire. Under reg 22, a claimant who fails without good cause to comply with the request referred to in regulation 21(1)(b) and a subsequent request “is to be treated as not having limited capability for work”.
Similarly, reg 23 provides that the claimant may be called for a medical examination to determine limited capability for work. Under reg 23(2), a claimant who fails without good cause to attend for or to submit to such an examination “is to be treated as not having limited capability for work”.
Reg 24 states, so far as material:
“The matters to be taken into account in determining whether a claimant has good cause under regulation 22 (failure to provide information in relation to limited capability for work) or 23 (failure to attend a medical examination to determine limited capability for work) include—
(a) whether the claimant was outside Great Britain at the relevant time;
(b) the claimant's state of health at the relevant time; and
(c) the nature of any disability the claimant has.”
The present case concerns a claimant who did not provide the information sought by the DWP and did not attend an examination and who therefore, on the face of it, would be “treated as not having limited capability for work” if he did not show “good cause” for that omission.
Regulation 29 further provides (so far as is material):
“(1) A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.
(2) … this paragraph applies if—
…
(b) the claimant suffers from some specific disease or bodily or mental disablement and, by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.”
Those found eligible for ESA are placed in either the “work-related activity group” or the “support group”. Those in the work-related activity group are required to make use of an assigned work coach to do certain activities to keep them close to the labour market. Work-related activity is defined by section 24 as “activity which makes it more likely that the person will obtain or remain in work or be able to do so”. Those in the support group, who are found to have limited capability for work-related activity (as well as limited capability for work), are not subject to that requirement.
Like limited capability for work, limited capability for work-related activity is determined in accordance with provisions of the 2008 Regulations. Under reg 34 this is, similarly, determined by applying descriptors found in schedule 3. Further, reg 35(2) provides:
“A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) is to be treated as having limited capability for work-related activity if—
(a) the claimant suffers from some specific disease or bodily or mental disablement; and
(b) by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity.”
The policy under challenge
The Claimant originally challenged the policy as it stood at the time of the events which are summarised below. The Defendant has since made significant changes. That led to a narrowing of the grounds. The Claimant maintains her challenge to aspects of the policy which, she contends, have not been remedied by the revised policy.
I will set out the relevant matters in chronological order, beginning with the policy as it stood at the time of the decision in Mr Graham's case.
The relevant material is or was found in the Defendant's internal operational guidance entitled “WCA Outcomes (ESA)” and in a document entitled “Decision Makers' Guide” (“DMG”).
The Claimant essentially objects to the combined effect of two aspects of the policy. First, the benefit claimant in each case is given the burden of showing “good cause” for a failure to complete a questionnaire or attend a medical examination. Second, the Claimant contends that the policy (even after revision) does not impose on decision makers a sufficient requirement to inquire into the facts in cases where benefit claimants suffering from mental illness are not engaging with the DWP.
It is helpful to set out some of the relevant policy references in terms. The following extracts give the essence of the relevant policy but are not intended to be comprehensive.
The WCA Outcomes policy has a section dealing with cases in which claimants fail to attend a WCA, or fail to participate in or comply with the process. This states, in particular:
“ Did Not Attend a WCA
5. When the claimant fails to attend a WCA assessment, MSRS produces an electronic outcome. MSRS holds all contact made between the claimant and HAAS. This includes all letters, telephone contacts including unsuccessful attempts, and appointment history.
6. HAAS will issue a letter, BF223 to the claimant asking for the reasons they did not attend. Claimants will be requested to return their response to BC within 15 calendar days. A reply envelope is enclosed with the BF223.
Consequences:
Failure to take prompt action will result in:
• failing in your duty on behalf of DWP to safeguard vulnerable claimants by not checking the Mental Health flag
• Failure to action, failure to return ESA50 or attend the WCA, means the claimant will not receive their correct entitlement and be overpaid
• increase the value of any overpayment, adding to official error
• rework to correct the claim.
…
9. When an MSRS record shows a Mental Health flag, the DM should check if the claimants has attended or...
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