MM v Secretary of State for Work and Pensions

The Court of Appeal considered whether the Department for Work and Pensions' procedures for assessing entitlement to employment and support allowance (ESA) placed mental health patients (MHPs) at a "substantial disadvantage" under the Equality Act 2010 and, if so, whether a reasonable adjustment should require obtaining further medical evidence (FME) or at least an "evidence-seeking" obligation. The Upper Tribunal had found a substantial disadvantage to MHPs and concluded that, prima facie under section 136, an evidence-seeking adjustment would be reasonable and directed the Secretary of State to investigate implementation.

The Court of Appeal upheld the Upper Tribunal's findings that MHPs as a class can suffer substantial disadvantage from the routine process (questionnaire and face-to-face assessment) and that both outcome effects (incorrect assessments) and adverse experiences (stress and confusion in the process) were relevant under schedule 2 para 2(5) and section 20(3) of the Equality Act 2010. It rejected the Secretary of State's challenges to jurisdiction, the sufficiency of the evidence, and the Tribunal's construction of "substantial disadvantage."

However, the court held that the Upper Tribunal exceeded its judicial function by directing the Secretary of State to carry out a defined investigation and produce particular evidence about implementation and pilots. Those directions were quashed because the Tribunal had gone beyond determining whether the claimant's proposed adjustment was reasonable and into supervising policy-making and evidence-gathering matters properly for the defendant.

This appeal concerned judicial review proceedings brought by two claimants with mental health problems challenging the ESA assessment procedures as failing to make reasonable adjustments under the Equality Act 2010. The claimants argued that the standard assessment process (ESA1, ESA50 questionnaire and an Atos face-to-face work capability assessment) frequently failed to identify the true effects of mental impairments and caused disproportionate stress; they sought either a mandatory duty to obtain further medical evidence (FME) for MHPs or, as amended in the Tribunal, an "evidence-seeking" adjustment requiring decision-makers to consider obtaining FME in every MHP case and to explain why FME was not sought.

The case had been transferred to the Upper Tribunal and heard with submissions from interveners (Mind, The National Autistic Society, Rethink Mental Illness and the Equality and Human Rights Commission). The Upper Tribunal found that MHPs as a class were placed at a substantial disadvantage compared with other disabled persons and, applying section 136, held that prima facie the evidence-seeking adjustment would be reasonable. The Tribunal directed the Secretary of State to carry out a specified investigation and file particularised evidence about the reasonableness and implementation of the adjustment.

The Court of Appeal considered four grounds of appeal: (1) whether the Tribunal had jurisdiction to make the declaration and remedies sought; (2) whether the Tribunal was entitled on the evidence to find a substantial disadvantage; (3) whether the Tribunal misdirected itself on the meaning of "substantial disadvantage" (schedule 2 para 2(5)); and (4) whether the Tribunal impermissibly assumed a policy-making role by directing a defined investigation and disclosure of specified information. The court held (i) claimants could bring proceedings under section 21(2) and that the duty to make adjustments is enforceable in judicial review where a relevant discrimination claim is advanced; (ii) the evidence (including expert and charity evidence and the Independent Reviewer’s recommendation) was adequate for the Tribunal to find more-than-trivial disadvantage to MHPs in both outcome and experience; and (iii) the Tribunal was entitled to treat adverse experience during the process as a relevant substantial disadvantage alongside outcome effects.

Finally, the court held that while a Tribunal may adjourn for further evidence and may indicate the sort of material that would be helpful, it was not proper for the Tribunal to direct the Secretary of State to carry out a defined investigatory exercise and to produce particularised evidence in order to enable the Tribunal itself to decide implementation details. The directions were quashed and the matter was left for the Secretary of State to discharge any burden of showing unreasonableness by adducing evidence.

Key legal issues: (i) scope and enforceability of the duty to make reasonable adjustments under the Equality Act 2010 (sections 20, 21, 29 and schedule 2); (ii) definition and proof of "substantial disadvantage" for classes of disabled persons; (iii) appropriate role of a tribunal when considering remedies and whether it may direct defendants to undertake specified investigatory steps.

Appeal allowed in part. The Court of Appeal upheld the Upper Tribunal’s findings that mental health patients as a class can be placed at a substantial disadvantage by the existing ESA assessment procedures and that an evidence-seeking adjustment was prima facie capable of being reasonable, but it quashed the Tribunal’s directions that the Secretary of State carry out a specified investigation and produce particularised evidence because those directions exceeded the Tribunal’s judicial role and impermissibly intruded into executive policy-making and evidence-gathering tasks.

Permission for judicial review was granted by Edwards-Stuart J and the claim was transferred to the Upper Tribunal (Administrative Appeals Chamber) (Case Nos. JR/2638 & 2639/2012 CO/2385/2012). The Upper Tribunal issued findings (22 May and remedies decision 24 May) that MHPs were substantially disadvantaged and made specific directions to the Secretary of State. The Secretary of State appealed to the Court of Appeal which heard the appeal and handed down judgment [2013] EWCA Civ 1565 (04/12/2013).