R Paul Atherton v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Mr Jeremy Johnson |
| Judgment Date | 27 February 2019 |
| Neutral Citation | [2019] EWHC 395 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2068/2017 |
| Date | 27 February 2019 |
[2019] EWHC 395 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Jeremy Johnson QC (SITTING AS A DEPUTY JUDGE OF THE HIGH COURT)
Case No: CO/2068/2017
Paul Atherton acting in person
Laura Farris (instructed by the Government Legal Department) for the Defendant
Hearing date: 13 February 2019
Approved Judgment
Mr Jeremy Johnson QC:
Introduction
The Claimant is homeless. He suffers from Chronic Fatigue Syndrome (“CFS”). He is reliant on social security benefits. Efficient and effective communication with the Department for Work and Pensions (“DWP”) in relation to his benefits is essential to him. He finds communication by postal mail difficult. That is partly because he does not have his own permanent address. It is also partly because his medical condition means that he does not know from week to week whether he will be in hospital or whether he will be staying with friends, or elsewhere. He cannot always travel, so collecting mail from a Jobcentre is difficult. He cannot communicate by telephone because he does not have one. Email communication is much easier for him. He has had difficulty in persuading the DWP to communicate with him by email. By these proceedings he initially challenged the DWP's refusal to communicate with him by email. He said that insisting on postal – rather than email – communication amounted to a breach of its public sector equality duty (“PSED”) pursuant to s149(1) Equality Act 2010. He also said it amounted to a breach of its duty to make reasonable adjustments to accommodate his disability, pursuant to ss20 and 29 of the 2010 Act. The DWP, for its part, says that it has now sought to accommodate the Claimant's preferred means of communication by way of a “workaround” that enables email communication. The Claimant considers that the workaround is, itself, flawed and that there is a continuing breach of the DWP's duties under the 2010 Act.
The factual background
The Claimant's medical condition
The Claimant has had CFS for many years. He describes it as a “relapsing and remitting condition, with recurrences at least every few months.” During a relapse he says he is unable to speak or move and he therefore spends significant periods of time bedbound. A letter from his GP in April 2013 states:
“Paul has a long history of Chronic Fatigue Syndrome whereby he will have crashing and debilitating fatigue on and off for 2–3 days in a week. These episodes are so bad that he actually requires a wheelchair during these times and is unable even to walk a few paces. Day to day this means that some days he can get around and be mobile and other days he can't move at all, making it often physically impossible to carry out activities of daily living… …
I would note that he now has dependant oedema in his legs from his lack of mobility and this in itself is caus[ing] problems with the fitting of his shoes and his mobility.”
A further letter from his GP in June 2018 states:
“…his disease takes a fluctuating course. He can be well and moderately energetic at times, with a rapid relapse to exhaustion and being bedbound – sometimes within hours…
…
Mr Atherton has been so unwell with CFS in the past that he has been [un]able to move around or to travel.
The regularity and predictability of Mr Atherton's ability to move around and travel, including using public transport, is impacted by his condition.”
The Defendant is suspicious about the genuineness of the Claimant's claims as to his medical condition and his entitlement to benefits. She says that the GP's letters are based on the Claimant's self-reporting. That may be so, but the GP does not give any indication that any clinician has ever had any doubt as to the Claimant's genuineness (the Claimant having been under specialist care since 2003). Moreover, the GP does refer to clinically verifiable symptoms (the dependant oedema). The Defendant has not herself adduced any contrary medical evidence.
The Defendant then points to the Claimant's prolific use of social media, which commands an extensive following. The Claimant tweets under the handle @LondonersLondon. The Defendant observes that at the time the Claimant wrote a witness statement which referred to being destitute and bedbound, he had, according to his twitter feed, attended an “absolutely stunning” performance of Falstaff at the Royal Opera House with the “brilliantly humorous” Bryn Terfel in the lead role, stayed at the Soho Hotel, dined at the “Caffe In” in Mayfair, and enjoyed the “amazing (but sad)” last ever Paul Simon concert at the Hyde Park festival. The Defendant asserts that tickets for the performance of Falstaff started at £282.50. She also points to evidence about the Claimant working for a radio station, “Colourful Radio.”
The Claimant responds that the Defendant has been highly selective in her reliance on his tweets, that there are many others that reference his medical condition, and that they are entirely consistent with his evidence that his condition ebbs and flows, sometimes allowing him to travel and attend events, and sometimes not. His work for Colourful Radio was all pre-recorded except for one occasion when the Claimant managed to attend a live show. All of his work was unpaid. The Claimant's tweet about Falstaff included an image of his ticket which appears to show a purchase price of £0, consistent with his evidence that he is adept at securing free access to cultural events.
The Defendant's grounds for defending the claim do not challenge the genuineness of the Claimant's condition. Ms Farris, for the Defendant, says that the tweets were only discovered late in the course of the proceedings. However, even now the Defendant does not positively assert that the Claimant's account is untrue: when I pressed Ms Farris on this she responded that the Defendant “could neither confirm or deny” that the Claimant was disabled within the meaning of the 2010 Act, just that she had “genuine concerns”. There has been no application to amend the grounds of defence to deny the Claimant's account that he has a disability (or to put him to proof on this issue), no application to cross-examine the Claimant on the veracity of his statements, no application for disclosure of medical records and no application to adduce medical evidence. The Claimant, who now acts in person, has not had a fair opportunity to respond to a fundamental challenge to the veracity of his account (for example by way of producing medical evidence).
In the circumstances, I approach the claim on the basis of the Defendant's pleaded defence. That does not challenge the Claimant's account that he has a disability but instead defends the claim on the grounds that the DWP has complied with the PSED and has made reasonable adjustments to its processes in order to accommodate the Claimant's disability.
I therefore disregard the social media material on which the Defendant sought to rely and proceed on the basis (which appeared to be common ground in the pleadings) that the Claimant has a disability amounting to a protected characteristic within the meaning of the 2010 Act. In doing so, I make no finding that is binding on the Defendant when considering the Claimant's eligibility for benefits.
Claimant's receipt of benefits
The Claimant has, since 2001, been in receipt of Disability Living Allowance (“DLA”) and Incapacity Benefit (“IB”) on the grounds of disability and incapacity for work. These are legacy benefits. They have been replaced by the Personal Independence Payment (“PIP”) and Employment and Support Allowance (“ESA”) respectively. ESA is, in turn, being replaced by Universal Credit. The Claimant has remained on legacy benefits because he has not undergone a work capability assessment (“WCA”). A WCA is carried out by a healthcare professional and is used to establish capability for any form of work or work-related activity, and to determine entitlement to ESA. A WCA is a necessary requirement before payment of ESA.
There have been occasions when the Claimant has not attended medical examinations or WCAs. This has resulted in the suspension of payment of benefits (and this is currently the position). On two occasions he has successfully appealed to the First Tier Tribunal (Social Entitlement Chamber) resulting in the reinstatement of benefit payments pending his WCA. The decisions of the Tribunal refer to communication difficulties. Thus, on 13 May 2013 Senior Tribunal Judge Mrs Ward allowed the Claimant's appeal against a decision to stop payment of benefits:
“It was accepted also that he had not received the notice sent to his former care of address, which was no longer available to him by the time the notice was sent. Mr Atherton has given sufficient evidence to show that on this occasion he had good cause for his failure to attend. It has now been made clear to him… that arrangements can be made for him to collect mail from his local jobcentre.”
On 1 February 2018 Judge R Singh allowed an appeal against a further decision to stop payment of benefits for failing to attend an appointment:
“Mr Atherton has shown good cause for his failure to attend the medical assessment… in relation to the Work Capability assessment. I found him to be credible and accepted his reasons. Accordingly he is to be treated as having limited capability for work until such time that a new assessment takes place.
Mr Atherton has no fixed abode and all future correspondence should be via email only.”
The Defendant stresses that she was not represented at the hearings before the First Tier Tribunal and that the findings that the Claimant had a good reason for not attending were therefore made in...
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