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

For permission purposes, a claim under the Equality Act 2010 concerning reasonable adjustments is not determined by asking whether the Secretary of State acted reasonably in the Wednesbury sense. The issue is whether the statutory state of affairs has in fact been achieved. There is correspondingly little room for a margin of appreciation.

It was reasonably arguable that reasonable adjustments for ESA claimants with mental health problems might include obtaining independent medical evidence early in the assessment process. A class-wide challenge to an ongoing statutory failure may properly proceed by judicial review where that remedy is the most convenient, expeditious and effective means of resolving the issue. The claim was transferred to the Upper Tribunal (AAC).

The claimants sought permission to apply for judicial review of the Secretary of State’s process for assessing eligibility for Employment Support Allowance. They alleged that the process placed people with mental health problems at a substantial disadvantage because independent medical evidence was not routinely obtained at an early stage.

The Secretary of State argued that the existing process made reasonable adjustments, that the claim was insufficiently arguable, and that proceedings should be brought in the County Court because the Equality Act 2010 provided an alternative remedy. The central issues were whether the alleged statutory breach was reasonably arguable and whether judicial review was an appropriate avenue of redress.

1. Permission. Permission to apply for judicial review was granted. The claim raised an arguable question whether the statutory duty to make reasonable adjustments required the early obtaining of independent medical evidence where documents accompanying a claim indicated mental health problems.
2. The claim was not a conventional challenge to the reasonableness of a decision or policy. The court had to consider whether the statutory state of affairs required by the Equality Act 2010 had been achieved. Consequently, there was little, if any, room for a margin of appreciation, and the permission threshold was correspondingly lower than in ordinary judicial review proceedings.
3. The relevant provisions included sections 20, 21, 29 and 31 and Schedule 2 of the Equality Act 2010. It was at least arguable that Schedule 2 paragraph 2(2), which refers to disabled persons generally, answered the contention that the duty was actionable only in relation to individual discrimination.
4. Regulation 21 of the Employment Support Allowance Regulations 2008 did not make use of a questionnaire obligatory. It appeared to permit the Secretary of State or Atos to seek further medical evidence instead where appropriate.
5. The alternative-remedy objection failed. Section 113 of the Equality Act 2010 expressly preserved claims for judicial review. Applying the approach in R v Devon County Council, ex parte Baker [1995] 1 All ER 73, judicial review was the more convenient, expeditious and effective means of resolving the class-wide legal issue. A County Court remedy confined to an individual claimant would be of limited value in addressing the alleged systemic failure.
6. The proceedings were transferred to the Upper Tribunal (Administrative Appeals Chamber), since the claim was fact-sensitive and potentially significant for the administration of ESA, and specialist tribunal experience was considered advantageous.

The application for permission to apply for judicial review was adjourned to an oral hearing by order of Eder J on 30 April 2012. Permission was granted by Mr Justice Edwards-Stuart, who transferred the case to the Upper Tribunal (AAC).