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

The anticipatory duty to make reasonable adjustments under the Equality Act 2010 may require a public authority to consider obtaining further medical evidence for a class of disabled claimants where its assessment process places that class at a substantial disadvantage. The claimants need show a real interest in the proposed adjustment; an existing, narrower safeguard does not necessarily remove that interest. Substantial disadvantage may concern both the accuracy of the benefit decision and an unreasonably adverse experience during the decision-making process. A court may adjourn to receive evidence on whether a proposed adjustment is reasonable, but it must decide the identified adjustment rather than formulate policy or supervise the authority’s evidence-gathering.

The Secretary of State appealed findings made by the Upper Tribunal (Administrative Appeals Chamber) in judicial review proceedings brought by two mental health claimants concerning the employment and support allowance assessment process. The Tribunal found that mental health patients were placed at a substantial disadvantage by procedures involving questionnaires, face-to-face assessments and limited use of further medical evidence. It rejected a universal requirement to obtain further medical evidence but treated as prima facie reasonable an alternative requirement to consider obtaining it and justify a decision not to do so. The Tribunal directed the Secretary of State to investigate that adjustment and produce further evidence. The central issues were whether the claimants could obtain relief, whether the evidence supported substantial disadvantage, whether an adverse process experience was legally relevant, and whether the Tribunal exceeded its powers by issuing those directions.

The appeal was allowed only on the fourth ground.

1. Standing and remedy. Section 21(3) of the Equality Act 2010 means that the duty to make reasonable adjustments is enforceable only in proceedings establishing discrimination against at least one disabled person to whom the duty is owed. The two claimants, as mental health claimants seeking employment and support allowance, had a sufficient interest. The existing requirement to obtain further medical evidence for suicide risks did not wholly overlap with the proposed evidence-seeking adjustment, which would require consideration throughout the process and could reduce the risk of safeguards being overlooked. The Tribunal was therefore entitled in principle to declare a substantial disadvantage affecting mental health patients and to entertain the judicial review claim.
2. Substantial disadvantage. The Upper Tribunal was entitled to find, on the evidence and applying the low statutory threshold of more than minor or trivial disadvantage, that mental health patients as a class faced both outcome effects and adverse experiences. Specialist appellate restraint applied to its mixed findings of law and fact. The statistics did not compel a different conclusion and were of limited relevance to process-related stress, embarrassment or confusion.
3. Construction of Schedule 2. Under paragraph 2(5) of Schedule 2, the benefit and detriment categories are not mutually exclusive in a way that excludes process-based disadvantage. A substantial disadvantage may arise from the process leading to the conferment of a benefit, including an unreasonably adverse experience, as well as from the outcome. Parliament cannot have intended the right to claim discrimination to depend arbitrarily on whether the function is characterised as benefit-conferring or detriment-imposing.
4. Limits of the Tribunal’s powers. The Tribunal could adjourn to receive evidence and allow the Secretary of State to address the reasonableness of the adjustment identified by the claimants. It could indicate the kind of evidence that might assist. It could not require the Secretary of State to conduct a specified investigation or supervise evidence gathering in order to determine what adjustment should be made. That was an impermissible assumption of the policy-making role and exceeded the Tribunal’s jurisdiction.

The directions concerning the renewed remedies hearing were quashed. The first three grounds of appeal were rejected.

• Court of Appeal (Civil Division): rejected the first three grounds of appeal, allowed the fourth, and quashed the Upper Tribunal’s directions concerning the renewed remedies hearing.
• Upper Tribunal (Administrative Appeals Chamber): found that the assessment procedures placed mental health patients at a substantial disadvantage, rejected the primary universal further-medical-evidence adjustment, and treated the alternative evidence-seeking adjustment as prima facie reasonable. It directed the Secretary of State to investigate and provide further evidence.