Employment and support allowance policy for those with mental health issues lawful

Mr Justice Bourne said that the deceased died of starvation in June 2018 aged 57. He was disabled, suffering from long-term depression and hypothyroidism. He had been in receipt of benefits from 2003 onwards. In 2017 his continuing eligibility for employment and support allowance was reviewed.

The deceased had not engaged with the process and, in October 2017, the Department for Work and Pensions decided to discontinue payment of the allowance.

It seemed that the deceased thereafter made no further contact with any family, friends, agencies or authorities. Rent arrears accrued at the property where he was a tenant and eviction procedures were commenced. In June 2018, bailiffs broke down the door of the flat and found the deceased’s body.

A claimant for employment and support allowance had to satisfy conditions specified in section 1 of and Schedule 1 to the Welfare Reform Act 2007. Those included having “limited capability for work”. Section 8 provided that the question of capability for work would be determined in accordance with regulations, in the present case those were the Employment and Support Allowance Regulations 2008 (SI 2008 No 794).

The deceased had not provided the information sought by the Department for Work and Pensions and had not attended an examination and therefore, on the face of it, would be “treated as not having limited capability for work” if he had not shown “good cause” for that omission, pursuant to regulations 22 and 24.

It was contended that many benefit claimants would be prevented by mental health problems from putting forward evidence to show a good cause for not responding to the Department.

However, the burden on a benefit claimant under regulation 22 to show “good cause” for a failure to complete a questionnaire or attend a medical examination was lawful. Read as a whole the policy made clear that it was necessary for both “partners” in the process to play their part.

A benefit claimant generally could and should supply information, and a case might be resolved against a claimant who failed to provide such information as was reasonably required.

Where the issue was “good cause” for a claimant’s failure to attend an assessment, it was logical and reasonable to look to the benefit claimant for an explanation.

However, it was argued that where the benefit claimant was vulnerable and had a long-term mental disability which might provide “good cause” for a failure to comply with the application process, regulation 24 of the 2008 Regulations and section 149 of the Equality Act 2010 placed a duty on the secretary of state to make all reasonable inquiries to obtain sufficient information to be able to properly assess whether the claimant had a good cause arising from his health or disability, including where necessary from external individuals and bodies.

Undoubtedly there was a duty to inquire, by reference both to general public law principles and to regulation 24 specifically. However, section 149 of the 2010 Act did not materially affect the interpretation of that duty.

It was obvious from policy documents and from the 2008 Regulations themselves that the Department had, in formulating its policy, had due regard to the need to advance equality of opportunity between disabled and non-disabled people, including the need to take steps to meet the specific needs of disabled people.

The policy reminded decision makers to consider all relevant sources of evidence. The nature and intensity of the necessary inquiry would no doubt vary according to the facts of every individual case.

The policy at the time of the present case had not specifically instructed decision makers to consider contacting a next-of-kin or other agencies, and had not required a case conference (with benefits continuing meanwhile) after two failed safeguarding visits.

Such provision had since been made and that was a significant improvement to the policy. It should help to prevent tragic outcomes like that of the deceased, although it could not be said what, if any, effect it would have had in his case.

Despite the tragic circumstances of the present case, the claimant fell well short of establishing that the Secretary of State had failed to comply with the duty to make such inquiries as were reasonably necessary in the circumstances

The Secretary of State’s officials knew that the deceased had a “mental disablement” and had made such inquiries as were reasonably necessary in the circumstances. Neither the legislation nor the secretary of state’s policy at the time mandated any further specific steps to be taken in that situation.

In those circumstances, it could not be said that no reasonable authority could have been satisfied on the basis of the inquiries made that it possessed the information necessary for its decision.

Further inquiries, judged at the time and not in hindsight, might have been sensible or desirable, but they were not inquiries which no reasonable benefits authority could have neglected to carry out. While claimants with mental health problems could be highly vulnerable, the standard of reasonableness had to be judged in context, including the gravity of the potential effects of an adverse decision.

The context also included a lack of any information that the deceased’s condition had deteriorated, the fact that he had previously co-operated with the Department but on the present occasion had not been engaging at all, and that at any time after the decision a single telephone call by or on behalf of the deceased could have re-opened his case.

Solicitors: Leigh Day; Treasury Solicitor; Equality and Human Rights Commission.