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

The claim alleged that the Secretary of State breached the Equality Act 2010 by failing to make reasonable adjustments to the Employment Support Allowance (ESA) assessment process for persons with impaired mental, cognitive or intellectual functions. The court considered the statutory duty to make reasonable adjustments under sections 6, 20, 21, 29 and 31 and Schedule 2 of the Equality Act 2010 and Regulation 21 of the Employment Support Allowance Regulations 2008. The judge held that it was at least reasonably arguable that the duty of reasonable adjustments could require the early obtaining of independent medical evidence for claimants whose submitted material indicated mental health problems, and that the claimant had an arguable case that the Secretary of State had not put that practice in place on a sufficiently widespread basis. The court rejected the defendant’s threshold plea that judicial review was inappropriate because of an adequate alternative remedy in the county court. Permission to apply for judicial review was granted and the case was transferred to the Upper Tribunal (Administrative Appeals Chamber) for substantive determination.

Background and parties. The claimants (MM and DM) sought permission to apply for judicial review of the Secretary of State for Work and Pensions' procedures for determining ESA eligibility for people described as "persons with mental health problems". The claim was brought under the Equality Act 2010, relying on the duty to make reasonable adjustments.

Nature of the application and relief sought. The claimants sought relief that the Secretary of State has failed to take reasonable steps to avoid placing persons with mental health problems at a substantial disadvantage in the ESA assessment process, in particular by not routinely obtaining independent medical evidence at the outset of claims or before face-to-face assessments.

Facts and procedure. The judgment summarised the ESA claim process: initial GP certificate, completion of an ESA50 questionnaire, assessment by Atos Healthcare, and decision-making by a Jobcentre decision maker. The court noted statistics indicating a high reversal rate on appeal, and recited that many claimants were migrated from Incapacity Benefit without new medical statements. The independent reviewer Professor Malcolm Harrington's first and second reports and the Government's response were considered. The defendant relied on implementation of Harrington's recommendations and existing guidance (including documents concerning mental health flags and further medical evidence procedures).

Issues framed by the court. (i) Whether, as a matter of law and fact, the Secretary of State had failed to make reasonable adjustments required by the Equality Act 2010 in respect of claimants with mental health problems; (ii) whether the reasonable adjustments required could include obtaining independent medical evidence at an early stage; (iii) whether judicial review was an inappropriate form of proceedings given the alternative statutory remedies (county court/tribunal); and (iv) whether the case should be transferred to the Upper Tribunal.

Reasoning and subsidiary findings. The court treated the claim largely as a statutory duty question rather than a conventional Wednesbury challenge and observed there was little room for a margin of appreciation. The court considered Schedule 2 paragraph 2(2) and concluded it was at least arguable that the duty could be enforced for disabled persons generally. On the facts, the judge found it reasonably arguable that the reasonable adjustment required could include early obtaining of independent medical evidence where claim documents showed mental health problems, and that there was arguable evidence this was not being done widely enough. The alternative remedy argument was rejected because judicial review was an appropriate, convenient and effective means to resolve the legal and fact-sensitive questions. The judge therefore granted permission and exercised his discretion to transfer the case to the Upper Tribunal (AAC) for substantive hearing, noting the advantages of tribunal expertise and a multi-member panel for fact-sensitive, wide-impact issues.

Permission to apply for judicial review was granted. The court held that it was at least reasonably arguable that the Secretary of State had failed to make reasonable adjustments required by the Equality Act 2010 by not routinely obtaining independent medical evidence at an early stage for claimants whose material indicated mental health problems. The court rejected the defendant's argument that the county court remedy made judicial review inappropriate and ordered transfer of the claim to the Upper Tribunal (Administrative Appeals Chamber) for substantive determination.

Application for permission to apply for judicial review adjourned to an oral hearing by order of Eder J on 30 April 2012. Permission was heard and granted by Edwards-Stuart J in the Administrative Court; neutral citation [2012] EWHC 2106 (Admin).