MM & DM, R (on the application of) v Secretary of State for Work and Pensions

The Welfare Reform Act 2007 introduced a new benefit, the employment and support allowance (ESA), which replaced incapacity benefit (IB) and other disability benefits. This appeal concerns the process of assessing whether a claimant is eligible for the benefit. The procedures currently employed involve, in the typical case at least, the claimant completing a questionnaire and attending a face to face interview. The respondents to this appeal (whom I shall hereafter call “the claimants”) contend that this adversely affects mental health patients (MHPs) defined as people with impaired mental, cognitive, or intellectual difficulties. It is alleged that because of their particular difficulties, the decision-maker will not necessarily obtain a properly informed appreciation of either their disabilities or their ability to work and may therefore reject claims on a false basis. Further, it is submitted that the process of completing the questionnaire and undergoing the interviews causes some MHPs disproportionate stress when compared with claimants suffering from other disabilities. The claimants’ primary case below was that these adverse consequences could be minimised, and even in some cases eliminated, if the Secretary of State amended the procedures in accordance with a duty to make reasonable adjustments under the Equality Act 2010 so as to require the decision-maker in every case to obtain further medical evidence (FME) before a decision is reached, save where that information has already been voluntarily provided. It was submitted that this would improve decision making and in some cases it would become clear, in the light of the FME, that the need for the questionnaire and/or the interview could be dispensed with.

As an alternative submission, and following an amendment to their claim during the course of the hearing below, the claimants alleged that a less rigorous adjustment could be made. It was submitted that even if FME need not be sought in every claim made by a MHP, the decision-maker should at least be required to consider obtaining FME in the case of MHP claimants and if FME was not sought, should explain why it was thought to be unnecessary. This proposed adjustment has been referred to both below and in submissions to us as the “evidence-seeking” adjustment.

Permission to bring proceedings for judicial review was granted by Edwards- Stuart J who transferred the case to the Upper Tribunal (Administrative Appeals Chamber) (hereinafter “the Tribunal”) specifically on the grounds that the Tribunal consists of members with experience of the workings of the state benefit system. The application was heard by Charles J sitting with Upper Tribunal Judges Jacobs and Lane. In addition to the parties, the Tribunal benefited from evidence and argument by four intervening parties. These included three charities with special expertise in the field of mental health, namely Mind, The National Autistic Society and Rethink Mental Illness. The fourth intervener was the Equality and Human Rights Commission. The interveners made submissions to this court through Mr Drabble QC acting for the charities, and Mr Allen QC acting for the Commission. We are grateful to them, and indeed all counsel, for their assistance.

I analyse the relevant provisions of the Equality Act below. Suffice it to say at this stage that in determining whether there was a duty to make a reasonable adjustment, the Tribunal had to decide two matters. The first was whether the current process for assessing eligibility for ESA did in fact place MHPs at a substantial disadvantage when compared with other claimants. The second question, which arises only if the substantial disadvantage is established, was whether it is reasonable to expect the Secretary of State to make the adjustment sought.

The Tribunal concluded the first issue in the claimants’ favour in a judgment issued on 22 May, and it subsequently issued a formal declaration to that effect. It did not, however, finally resolve the second question. It rejected the primary way in which the claimants had put their case, namely that FME should always be obtained for MHPs, on the grounds that this would be unduly onerous. But it reached no definitive view on the alternative evidence-seeking adjustment. However, by section 136 of the Equality Act 2010, if the facts adduced before the court establish a prima facie case of an act of discrimination, then the court must find discrimination unless the defendant proves otherwise. In this case the Upper Tribunal held in a decision on remedies promulgated in writing on 24 May, that a prima facie case had been established that the evidence-seeking recommendation would amount to a reasonable adjustment and that the burden therefore shifted to the Secretary of State to show that it would not be reasonable. The Tribunal directed the Secretary of State to carry out an investigation into the reasonableness of this adjustment and to file further evidence on the matter. At that stage it was envisaged that a further hearing on the reasonableness of the evidence-seeking adjustment would be held in October but matters were stayed pending the outcome of this appeal.

The appeal is on four grounds, three of which relate to the finding that the current procedures give rise to a substantial disadvantage. First, the Secretary of State submits that irrespective of the merits of the case, the Tribunal had no jurisdiction to grant the declaration of substantial disadvantage at the behest of these claimants and their claims ought to have been dismissed. Second, he says that it was not open to the Tribunal properly assessing the evidence before it to conclude that MHPs were in fact placed at a substantial disadvantage. Third, he alleges that the Tribunal misdirected itself as to the meaning of “substantial disadvantage” and found that certain adverse experiences were capable of amounting to a substantial disadvantage when as a matter of law they were not. The fourth and quite distinct ground is that the Tribunal impermissibly converted itself into a policy maker and went beyond its judicial remit when it issued the directions it did requiring the Secretary of State to carry out an investigation and to disclose specified information at the adjourned hearing. I will consider these grounds after setting out the background to the application and the essential findings of the Tribunal.

By 2006 over 2.7 million people were claiming IB and more than half had been receiving that benefit for more than five years. The Government was concerned that a large number of those receiving IB never returned to work even though many wanted to do so. It considered that helping people back to work where possible would improve the physical and mental health of the beneficiaries and would no longer involve writing off groups of people as being incapable of work. The introduction of ESA was designed to achieve those objectives.

Those claiming ESA fall into three principal groups. First, there are those who are found to be fit to work notwithstanding some disability, who will be denied the benefit; second, those who are not likely to be able to work at all and are described as having limited capability for work-related activity (also known as the support group); and third, those who with the appropriate additional support could eventually return to work and are described as having limited capability for work.

In order to determine the category into which any particular claimant might fall, the Act requires the claimant to undertake a work capability assessment (WCA). This is designed to assess an individual’s functional ability, focusing on what he or she can do rather than what he or she cannot do. In broad terms there is a points system whereby points are scored depending on the extent of the claimant’s ability to function: the higher the points scored, the more limited the capability for work. The intention is that the WCA should provide a focussed assessment which has regard to the particular needs of the individual. The assumption of the old system of assessment, the personal capacity assessment, was that you had to be fully fit in order to work and that curing the incapacity was the only route back to work. The new system is designed to effect a fundamental change to that approach.

There are two different categories of claimants for this benefit. First, there are those who are making new claims for ESA; then there are those already in receipt of a benefit. In some cases this will be IB and in others ESA itself.

New claimants will make an application using Form ESA1, which is used throughout Great Britain. The information provided includes personal details of the claimant; brief details of the illness or disability, including contact details for a doctor; a medical statement which those entitled to statutory sick pay will already have and which others will have to obtain from their doctor; and information on other benefits claimed and any pensions or health insurance which might affect the type of benefit to be awarded. The medical statement from the doctor is known as a Statement of Fitness to Work. It contains a diagnosis of the claimant’s condition and comments on the functional effects of that condition. Once an application is received, the applicant is treated as entitled to ESA until the claim is investigated.

In the case of somebody making a renewed claim, whether having formerly been entitled to IB or having earlier been awarded ESA, no new ESA1 is required but the claimant must still go through the WCA and the decision maker will consider all the available information relating to the previous claims.

In all cases the application itself can be made on-line or by telephone. It is sent to the DWP, who then make a referral to its medical services provider which is currently Atos Healthcare (Atos). In a case where ESA or IB has been paid previously, the referral includes relevant information in respect of the previous decisions; with a new claim, it will include the diagnosis from the medical statement and other relevant information. It is transferred by means of an IT platform, the Medical Services Referral System (MSRS), which holds the relevant case details and information about the claimant’s medical condition. For MHPs, a flag is added to the relevant file.

Atos handles the procedures thereafter. In most cases it will, on receipt of the case, issue a Form ESA50. This is a questionnaire directed to the claimant. Exceptionally, such as in the case of terminally ill patients for example, no forms are issued at all. The purpose of the ESA50 is to allow the claimant to go into far greater detail about the nature and extent of the illness or disability than is contained in the original ESA1. Recipients are advised to ask for help in filling in the questionnaire if necessary and some assistance is provided from Job Centre Plus. Exceptionally, a DWP officer will visit a claimant’s house to give advice about answering the questionnaire. There is no obligation on a claimant to return any medical statements with the ESA50 although the form does emphasise that the claimant should send any relevant medical reports or any other information which they would want the decision maker to consider.

The ESA50 includes a number of free text sections where claimants can explain the nature of their disabilities in their own words; a section where they indicate the medication or treatment they are under, together with the contact details of GPs or other persons providing care or treatment; a section requiring the claimant to answer questions designed to elucidate what physical problems they face; and finally, a section designed to reveal the nature and extent of any cognitive or intellectual disfunctions.

If the ESA50 is not returned (and there is a 28 day period for doing that) and there appears no good reason for not returning it, the claim will be disallowed. But if good cause is found the claimant will be allowed further time to complete it. And in the case of somebody suffering from a mental health condition the case is directly referred to an Atos health care professional (HCP) to consider whether FME should be requested and a face to face assessment carried out. Accordingly, the failure to complete the form will not defeat the eligibility of MHPs to obtain their benefit.

Usually, following the receipt of the ESA50 there will be a face to face interview with the claimant. This is carried out by a health care professional (HCP) employed by Atos. Given the function of the assessment, their role is not to carry out a diagnosis and determine the appropriate treatment; it is to focus on the capability for work and to relate this to the legislative requirements. They are drawn from various medical disciplines and include doctors, nurses and physiotherapists. They work in assessment centres across Great Britain. They have specific training in dealing with specific mental health problems. They do not, however, make the final decision although they will make a recommendation based on information derived from the questionnaire, the interview and any FME which they may have obtained. The final decision is taken on behalf of the Secretary of State by an official of the DWP. That decision will be taken in the light of reports from the HCP setting out the recommendation and the reasons for it, and the supporting evidence.

If a claim is disallowed then the claimant can appeal to the Social Entitlement Chamber of the First Tier Tribunal (FtT). Typically, however, before the FtT considers it, the claim will have been reconsidered by a different decision -maker in the department who will also consider any fresh evidence made available. The FtT carries out a full re-hearing. Sometimes the appeal is dealt with on paper but more often there is an oral hearing at which both parties can attend. There will almost always be FME obtained for that determination.

There is a statutory structure in place to ensure that there is effective monitoring and evaluation of the relevant processes. This is carried out by the Independent Reviewer who was at the relevant time Professor Harrington, a leading occupational health specialist. The Officer is charged with producing annual reports required by section 10 of the 2007 Act.

There were three annual reports prepared by Professor Harrington. He consults widely and receives information about the operation of the procedures from many sources, including the interveners. It is not necessary to recount the detail of these reports. Suffice it to say that his recommendations have been almost universally accepted by the Secretary of State. Initially he highlighted various teething problems but in his first report he expressed the view that that the DWP could be “reasonably pleased” with what they had done.

He did, however, change his approach towards one important issue. Initially he considered that ultimately the onus had to be on the claimant to produce relevant information. But subsequent experience concerning the operation of the procedures led him to consider that the process would be improved if the Department were to be more pro-active. In his third report he explained why he had altered his view and what should be done in the future:

“36.

The year one Review said that: “the onus is and must be on the claimant to provide information to support their claim ---- it is difficult to see any justification or method of operating such a system without requiring the majority of claimants to be their own advocates.

37.

During the year two Review it became clear that the Decision-makers were seeking to gather increased amounts of further documentary evidence as recommended in year one. This was seen as positive progress whilst also recognising that, in an ideal world, further documentary evidence will be provided at an earlier point in the claim process. Concerns remained that further documentary evidence was often only being provided as part of the reconsideration process.

38.

However, some charities have suggested that the collection of further documentary evidence should be a mandatory duty on either Atos or on the Decision-maker. They have argued that claimants cannot, for a number of reasons, collect this information themselves and therefore the Department should take responsibility for doing so.

39.

This view has been widely canvassed over the course of this year and put to charities, representative and disability groups, politicians, senior officials in DWP and, most importantly, to the Decision-makers during this year's unannounced visits to Benefit Delivery Centres.

40.

A consensus has clearly emerged. There should be a requirement in every claim to consider seeking further documentary evidence and, if that evidence is not sought, that the decision not to should be justified.

Recommendation

Based on this, I recommend that:

Decision-makers should actively consider the need to seek further documentary evidence in every claimant’s case. The final decision must be justified where this is not sought.

41.

Given the unique circumstances of their condition, particular care should be taken when the claimant has a mental, intellectual or cognitive condition as these individuals may lack insight into the effects of their condition on their day-to-day functioning.”

As the Tribunal noted, this recommendation fell short of the mandatory obligation to obtain FME in every case, which the Tribunal rejected as a reasonable adjustment even when limited to MHPs. The recommendation was, however, the source of the evidence-seeking adjustment which, subject to this appeal, the Tribunal will have to consider at the reconvened remedy hearing.

The Secretary of State responded to Professor Harrington’s suggestion and initially considered that the obligation could be introduced at the stage when Atos was gathering and considering relevant material. He said this:

“We would anticipate that the best way of implementing the intent behind this recommendation would be to introduce an additional element in Atos’ process. This would take the form of making explicit the requirement for Healthcare professionals to actively consider further evidence and to include a justification where they decide that further evidence would not be necessary.  Decision-makers would then ensure that this justification has been provided, and where they question or disagree with a justification, would have the option to request Atos to go back and gather the further evidence that may be required.”

However, he was not prepared to commit himself to implementing the proposal for reasons which were expressed as follows (para 48):

“As with any potential changes in our processes, we need to ensure that the additional resources required in terms of administration and processing times is balanced by a demonstrable impact on the quality of decision-making and customer experience, in order to maintain an appropriate emphasis on the value for money of the process. We will therefore work on reviewing the implications of any such changes set out above before we can be clear on whether to implement. On that basis the Department supports the intent of the recommendation and provisionally accepts the desirability of making appropriate changes, subject to the caveat that we must first work to ensure it can be implemented in a cost-effective fashion before taking a final decision.”

In fact, before the Tribunal the Secretary of State appeared to be resiling from the position that the recommendation was in principle acceptable. In a witness statement to the Tribunal, Dr Gunnyeon, the Departmental officer responsible for the monitoring and development of the work capability assessment, said that the Secretary of State was not satisfied that the proposed adjustment would necessarily add sufficient value to justify the costs and potential delay which might result from its implementation. He added that “FME is already being requested in cases where it is appropriate.”

The Tribunal was understandably confused as to precisely what the Department’s stance was and sought clarification. The Department made it clear that it was carrying out an assessment of Professor Harrington’s evidence-seeking proposal as part of the process of considering and implementing the Professor’s recommendations. This was not, however, limited to MHPs and it was not accepted that it had a duty to make the adjustment sought in relation to that group. The Tribunal concluded (para 81) that this response fell short of a proper assessment of the evidence-seeking adjustment as it applied to MHPs.

The UT accepted (para 72) that if the evidence-seeing adjustment were to be adopted, it would alter the current practice in a quite significant way. The reason is that save where it is volunteered, FME is currently only obtained by Atos HCPs in a limited number of cases. In broad terms these include the following situations: cases where the evidence is likely to confirm that those already in receipt of either IB or ESA should continue to receive ESA (but not, it seems, for someone making an initial claim when a face to face interview is almost always conducted); cases where a claimant is noted to have an appointee, which will occur where the claimant is not able to manage his or her own affairs; and cases where there is a suicide risk because the claimant has referred to a previous suicide attempt, has suicidal ideation, or there is a history of self harm. In those classes of case (and both claimants fall into the suicide risk category) FME must be obtained. The current procedures expressly provide, however, that it will not be sought simply to confirm that an examination is required or to provide further information to assist the HCPs.

In addition, even where FME is sought, the Tribunal found that the request will only rarely be made before the ESA50 has been requested (para 50(iv)). Typically this might occur where there is a strong possibility that support group criteria will be satisfied or the claimant has an appointee. Moreover, FME is not necessarily obtained before any face to face examination.

Evidence was provided by the claimants, who are MHPs, as to their own circumstances and those of five other individuals selected for the purpose of illustrating a range of problems. MM is a man whose claim to ESA was rejected by the DWP, but his appeal to the FtT was successful. However, he faces regular reviews and is concerned that he will lose the benefit in future unless the procedures are changed. DM, the second claimant, has a severe mental illness and was in receipt of IB for a number of years. She will now be subject to an assessment for ESA sometime next year. When she last underwent an assessment in 1995 she was deeply traumatised and despite being awarded IB, she suffered a relapse and was readmitted to hospital.

These experiences, and information provided by the claimants about the difficulties facing other patients, informed the Upper Tribunal. But the burden of obtaining the detailed evidence identifying the difficulties facing MHPs as a class was borne by the charity interveners who have, in their different ways, vast experience in the field. Their evidence included an expert report from Dr Boardman, a consultant psychiatrist instructed by MIND to comment on aspects of the claims procedure, including the WCA.

From that detailed evidence, the Upper Tribunal identified the following particular problems which MHPs as a group face, whilst recognising that the extent to which any particular MHP will suffer from these problems will vary.

“(i)

In terms of filling out a form, seeking additional evidence and answering questions, claimants with [mental health problems] as a class have the following problems and difficulties because of their [mental health problems], some of which overlap:

a)

insufficient appreciation of their condition to answer questions on the ESA50 correctly without help,

b)

failure to self-report because of lack of insight into their condition,

c)

inability to self-report because of difficulties with social interaction and expression,

d)

inability to self-report because they are confused by their symptoms,

e)

inability because of their condition to describe its effects properly,

f)

difficulty in concentrating and in understanding the questions asked,

g)

unwillingness to self-report because of shame or fear of discrimination,

h)

failure to understand the need for additional evidence because of cognitive difficulties,

i)

problems with self-motivation because of anxiety and depression which may prevent them approaching professionals for help and assistance,

j)

false expectation that conditions will be understood without them needing additional help, and

k)

lack of understanding that professionals named in the form will not automatically be contacted in the assessment process.

ii)

in terms of further aspects of the process for the determination of their entitlement to ESA, claimants with MHPs as a class have or have to face the following problems and difficulties because of their MHPs:

a)

particular conditions (e.g. agoraphobia and panic attacks and autism spectrum disorder) make attending and/or travelling to a face-to-face assessment difficult,

b)

finding the process itself intimidating and stressful, and, in some cases, that having a long-lasting negative effect on their condition,

c)

a desire to understate conditions,

d)

the masking of health problems as physical problems,

e)

dealing with assessors who have little or no experience of mental health problems,

f)

the difficulties of identifying many symptoms of a condition and its impact on what a person needs without proper training and knowledge,

g)

the lack of time during a short assessment to identify a person's needs,

h)

fluctuation in condition, and

i)

scepticism about the condition.”

It is important to note that these problems fall into two categories, although they overlap. Some of these difficulties go to the adverse experience which might be felt because of what, from the vantage point of some MHPs, will be perceived to be stressful, embarrassing or confusing features of the process, in particular the completion of the questionnaire and the face to face interview. Other difficulties lead to the decision maker having inadequate or even false information about the nature and extent of the illness thereby increasing the risk that a false functional assessment will be made which in turn may jeopardise the right to an ESA. I will call these “adverse experiences” and “outcome effects” respectively.

The Secretary of State accepted that some MHPs might experience some of these difficulties but contended that procedures had already been adequately modified to cater specifically and in various ways for MHPs and it is for that reason that their applications are flagged. For example, MHPs are strongly encouraged to bring a friend or supporter to any interview; if they fail to attend an interview certain follow up steps will be taken to try to discover why and perhaps to arrange another interview whereas for other claimants the HCP would move to a recommendation; FME is already obtained for suicide risks and those who have an appointee, claimants who in practice will be MHPs; and contrary to the understanding of some MHP claimants, there is already specialist training to ensure that HCPs are able to identify, and deal with the problems created by, different mental health conditions.

Notwithstanding these modifications, the Tribunal was satisfied that the difficulties faced by MHPs placed them at a substantial disadvantage when compared with other disabled persons who do not experience mental health problems. It concluded that if the proposed evidence-seeking adjustment were made it would certainly ameliorate these problems with respect to both adverse experience and outcome effects:

“In our judgment, the present practice relating to FME, has the result that in a significant number of claims by claimants with MHPs the existence and impact of the difficulties result in those claimants, and thus that class of claimants, being placed at a disadvantage that is more than minor or trivial and/or suffering an unreasonably adverse experience:

i)

by being required to complete an ESA50 when this is not needed,

ii)

in the completion of the ESA50,

iii)

by being required to attend a face-to-face examination / assessment when this is not needed,

iv)

during a face-to-face examination / assessment, and

v)

during the final decision-making process and the communication of that decision by the DWP decision-maker.

In our judgment, if appropriately directed FME was made available earlier in the decision-making process in respect of claims by claimants with MHPs, it is likely that, in a significant number of such claims:

i)

the HCP would be better informed before requiring an ESA50 and at the face-to-face examination / assessment, with the result that the decision-making process in respect of the class, and the way in which it is perceived by claimants with MHPs as a class, would be improved because the Difficulties would be better addressed and so avoided or reduced, and

ii)

the DWP decision-maker would also be better informed in his or her assessment of the claim, the recommendations of the Atos HCP and his or her approach to the acknowledged vulnerabilities and difficulties of claimants with MHPs as a class and so individuals within it.”

The laws regulating disability discrimination are designed to enable the disabled to enter as fully as possible into everyday life. This requires not merely outlawing discrimination against the disabled; it also needs those who make decisions affecting the disabled to take positive steps to remove or ameliorate, so far as is reasonable, the difficulties which place them at a disadvantage compared with the able bodied. Baroness Hale identified the reason for this in Archibald v Fife Council [2004] ICR 954. After noting that traditional anti-discrimination law requires treating the relevant characteristic, for example, race or sex as irrelevant, she explained why this approach does not suffice with respect to the disabled:

“The 1995 Act, however, does not regard the differences between disabled people and others as irrelevant. It does not expect each to be treated in the same way. It expects reasonable adjustments to be made to cater for the special needs of disabled people. It necessarily entails an element of more favourable treatment…..It is common ground that the 1995 Act entails a measure of positive discrimination, in the sense that employers are required to take steps to help disabled people which they are not required to take for others.”

And the purpose of this is, as Sedley LJ noted in Roads v Central Trains Ltd [2004] EWCA Civ 1541 at para 30:

“so far as reasonably practicable, to approximate the access enjoyed by disabled persons to that enjoyed by the rest of the public.”

The concept of reasonable adjustment was first adopted in the Disability Discrimination Act 1995. The scope of that obligation was then extended in 2005, and the Equality Act has consolidated, simplified and made certain amendments to the earlier legislation.

The Act is now structured, so far as reasonable adjustments are concerned, in the following way. First, section 20 of the EA 2010 sets out in generic terms the content of the duty to make reasonable adjustments. It provides as follows:

“20.

Duty to make reasonable adjustments

(1)

Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2)

The duty comprises the following three requirements.

(3)

The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(4)

The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(5)

The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.”

This section does not impose the duty to make adjustments; it simply defines what may be required when the duty is imposed. However, not all three requirements are engaged in all cases; the scope varies depending upon the circumstance in which the duty arises and different schedules to the Equality Act apply to different situations, for example in the fields of education and premises.

The relevant schedule in this case is schedule 2. This must be read together with part 3 of the Act which applies to those providing services and exercising public functions. The task of assessing claimants for ESA involves the exercise of a public function.

Section 29(6) provides that a person exercising a public function “must not ... do anything that constitutes discrimination, harassment or victimisation.” The obligation to make reasonable adjustments is applied to persons exercising public functions by section 29(7).

Schedule 2 to the Act then specifies the nature of the duty with respect to public service providers. Apart from applying all three requirements in sections 20(3), (4) and (5), it also modifies the concept of reasonable adjustment in certain ways. Two paragraphs are of particular relevance to this appeal. First, para 2(4) provides as follows:

“(2)

For the purposes of this paragraph, the reference in section 20(3), (4) or (5) to a disabled person is to disabled persons generally.”

Second, para 2(5) provides a specific definition of what constitutes a “substantial disadvantage” in this field of operation:

“(5)

Being placed at a substantial disadvantage in relation to the exercise of a function means—

(a)

if a benefit is or may be conferred in the exercise of the function, being placed at a substantial disadvantage in relation to the conferment of the benefit, or

(b)

if a person is or may be subjected to a detriment in the exercise of the function, suffering an unreasonably adverse experience when being subjected to the detriment...”

The term “substantial” is defined in section 212(1) as meaning “more than minor or trivial.” It is not, therefore, a particularly high hurdle to establish substantial disadvantage.

The modification of the duty so that it applies to disabled persons generally creates what is frequently referred to as an anticipatory duty: the person exercising the public function has to anticipate the reasonable steps necessary to ensure that disabled persons generally, or of a particular class, will not be substantially disadvantaged.

The final provision to which reference should be made, and which is also central to a ground of appeal, is section 21 which is as follows:

“(1)

A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.

(2)

A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

(3)

A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.”

Accordingly, by section 29(6) there is a duty not to discriminate; by section 21(2) discrimination includes, amongst other matters, a failure to make reasonable adjustments; and by section 21(1) this in turn arises where there is a failure to comply with any of the three requirements. In this case the alleged failure is only in respect of the first requirement in section 20(3).

Generally, proceedings relating to a contravention of the Equality Act 2010 have to be brought in accordance with Part 9 of that Act: see section 113(1). Part 9 provides that discrimination claims relating to the exercise of public functions can be brought by a claim in the county court: see section 114(1). The county court has power to grant not only damages but also any remedy which could be granted by the High Court in a claim for judicial review: see section 119(2).

However, by section 113(3)(a), Parliament has provided that the obligation to bring proceedings in accordance with part 9 of the Act “does not prevent a claim for judicial review.” Hence judicial review could properly be pursued here.

I agree.

I also agree.