Turner, R (On the Application Of) v Secretary of State for Work and Pensions

The claimant brought judicial review proceedings challenging (1) the lawfulness of the Department for Work and Pensions' policy and guidance on Employment and Support Allowance (ESA) outcomes (in particular the approach to "good cause" where claimants fail to return questionnaires or attend limited capability for work assessments) and (2) the individual decision to discontinue ESA in the case of Mr Errol Graham. Key statutory provisions considered included regulations 21–24, 29, 34 and 35 of the Employment and Support Allowance Regulations 2008 and section 149 of the Equality Act 2010.

The court held that the policy was not materially misleading of the law. It was lawful for the policy to place on claimants an evidential burden to explain non‑attendance provided decision makers also take reasonable steps to investigate relevant matters and have regard to a claimant's state of health and disability (as required by reg 24 and ordinary public law duties). The public sector equality duty did not add a distinct or more onerous obligation beyond those requirements in this context. On the facts, the decision to discontinue Mr Graham's ESA was not irrational: DWP officials had made enquiries (GP contact, letters, calls and two safeguarding visit attempts) and there were no grounds to conclude no reasonable authority could have made the decision.

Background and parties: The claimant (on behalf of the family of Mr Errol Graham) challenged DWP policy on ESA outcomes and the DWP decision to cease Mr Graham's income‑related ESA after he failed to attend a limited capability for work assessment in 2017. Mr Graham, who suffered from long‑term depression and hypothyroidism, was later found dead of starvation in June 2018. The Equality and Human Rights Commission intervened limited to the scope of the permitted grounds.

Relief sought: The claimant sought declarations that aspects of the DWP policy were unlawful and that the individual decision to discontinue Mr Graham's ESA was unlawful for failing to make adequate inquiries and for breaching the public sector equality duty under section 149 Equality Act 2010.

Issues framed:

• Whether the DWP policy was unlawful because it placed the burden on claimants to prove "good cause" and thereby gave a materially misleading impression of the law or permitted unlawful decision‑making.
• Whether regulation 24 and/or the public sector equality duty imposed a specific, heightened duty to make all reasonable inquiries (including contacting third parties such as next of kin, community psychiatric nurses, social services or the police) before treating a claimant as not having limited capability for work for failure to attend.
• Whether the decision in Mr Graham's case was unlawful on the same bases.

Court’s reasoning and findings: The court accepted that adjudication of benefits is inquisitorial rather than adversarial and that decision makers must take reasonable steps to inform themselves (Tameside principle and authorities such as Kerr). It held that it was lawful for the policy to speak of a claimant's burden to provide reasons for non‑attendance because that explanation is frequently uniquely within the claimant's knowledge, provided decision makers consider other reasonably accessible sources of information and take a claimant's disability into account. Section 149 EQA did not materially alter the nature of the inquiry here because the regulatory scheme and policy already required regard to disabilities and their effects; compliance with those provisions satisfied the PSED in substance. The judge concluded the policy, read as a whole, instructed decision makers appropriately and that the revised policy changes (mandatory case conferences and protection of payments pending enquiry after two ineffective safeguarding visits) were improvements. On the facts of Mr Graham's case, the DWP had made reasonable enquiries (GP contact, appointment letters, telephone and text attempts and two safeguarding visit attempts) and could not be faulted as irrational in closing the award.

Other procedural/contextual points: The court refused to entertain a distinct argument raised by the intervenor about the interaction of reg 29 with the "treated as not having" provisions because that issue was not within the permitted grounds and would require amendment and fuller argument. The claim was dismissed.

The claim is dismissed. The court held that (1) the DWP policy was not unlawful: it lawfully required an explanation from a claimant for non‑attendance while also requiring decision makers to make reasonable inquiries and to consider a claimant's state of health and disability (regulation 24 and ordinary public law duties); (2) section 149 Equality Act 2010 did not impose a materially different or more onerous duty in this statutory context; and (3) the decision to terminate Mr Graham's ESA was not irrational on the material available to the DWP at the time.