LO’L v Secretary of State for Work and Pensions (ESA)

A tribunal exercising a judicial function is excluded from the duty to make reasonable adjustments under Equality Act 2010 section 29. It must nevertheless take proper account of a claimant’s mental health problems when applying its procedural rules, overriding objective and the requirements of fairness.

The effect of a mental health condition must be assessed individually. A tribunal may need to consider an alternative form of oral hearing, including a telephone hearing, even if the claimant has not requested one. The inquiry is contextual and proportionate. It includes whether the claimant could participate effectively, whether further relevant evidence is likely to be obtained, and whether the procedure is fair rather than ideal.

The claimant’s employment and support allowance was terminated after an assessment found that she did not have limited capability for work. She appealed to the First-tier Tribunal, stating that depression, anxiety, panic attacks and phobias prevented her from attending a hearing. She asked for the appeal to be decided without a hearing.

The First-tier Tribunal considered the available documentary evidence, made enquiries about a previously mentioned GP letter, and dismissed the appeal without an oral hearing on 22 July 2013. It found that the claimant did not satisfy the relevant descriptors or regulation 29 of the Employment and Support Allowance Regulations 2008.

After refusals of permission to appeal, the Upper Tribunal’s refusal was quashed on judicial review and the appeal was referred to this Upper Tribunal. The central issue was how a tribunal should take account of mental health problems when deciding whether to hold, or proceed with, a hearing.

1. Appeal dismissed. The First-tier Tribunal had made no error of law in deciding the appeal without an oral hearing.

2. In deciding whether to proceed without a hearing under rule 27, the First-tier Tribunal was exercising a judicial function. The exclusion in paragraph 3 of Schedule 3 to the Equality Act 2010 therefore meant that it was not subject to section 29’s reasonable-adjustments duty. DC v Secretary of State for Work and Pensions [2014] UKUT 0218 (AAC), insofar as it held otherwise, should not be followed.

3. Mental health problems remained directly relevant to procedural fairness. The tribunal had to take their possible effect into account when exercising its procedural powers and applying the overriding objective. The condition and its effect had to be assessed on the evidence in the individual case. Material considered in R (MM and DM) v Secretary of State for Work and Pensions could assist a tribunal’s general understanding, but did not have the status of country guidance and could not replace an individual assessment.

4. A telephone hearing was permissible. A claimant need not request one before the tribunal may have to consider it. The tribunal should make a proportionate, contextual assessment. Relevant matters include whether the claimant had made an informed choice not to participate, could cope with a telephone hearing, and was likely to provide further material evidence. There was no rigid requirement first to find that oral evidence was necessary.

5. On the evidence before it, the First-tier Tribunal had considered the claimant’s reasons, her medical material and the unavailable GP letter in a careful and proportionate way. It was not necessary for fairness to offer a telephone hearing. The appellate question was whether the procedure was fair, not whether the tribunal had reached the only possible fair conclusion.

6. The tribunal was also entitled to proceed without obtaining further medical evidence. It could take account of the claimant’s ability to obtain it and whether records were likely to assist with the precise statutory descriptors. No undisclosed relevant evidence existed, and further records were unlikely materially to assist.

• Upper Tribunal (Administrative Appeals Chamber): The appeal was permitted after an earlier Upper Tribunal refusal of permission was quashed on judicial review. The Upper Tribunal held that the First-tier Tribunal had made no error of law and dismissed the appeal.

• First-tier Tribunal (Social Entitlement Chamber): Under reference SC242/13/09103, at Ashford on 22 July 2013, the tribunal decided the appeal without a hearing and dismissed it.