MM & Anor, R (on the application of) v Secretary of State for Work and Pensions [2012] EWHC 2106 (Admin)

Case No CO/2385/2012[2012] EWHC 2106 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/07/2012
Before
MR JUSTICE EDWARDS-STUART
Between
THE QUEENClaimantson the application ofClaimant(1) MMClaimant(2) DMClaimantTHE SECRETARY OF STATE FOR WORK AND PENSIONSDefendant
Miss Nathalie Lieven QC & Mr Tim Buley (instructed by Public Law Project) for ClaimantsMr Martin Chamberlain (instructed by Legal Department for Department of Work and Pensions) for the DefendantHearing Hearing dates: 29 June 2012
Judgment

Introduction

[1]This is an application for permission to apply for judicial review which was adjourned to an oral hearing by order of Eder J on 30 April 2012. The claim concerns the process by which the Secretary of State assesses, for the purpose of eligibility to receive Employment Support Allowance ("ESA"), persons with impaired mental, cognitive and intellectual functions, to whom I will refer, like the parties (and without intending any disparagement), as “persons with mental health problems”.[2]The relief is sought under the provisions of the Equality Act 2010 ("the Act") on the ground that the Secretary of State has failed to make "reasonable adjustments" to the process for applying for ESA so as to avoid the disadvantages that would otherwise be faced by persons with mental health problems.[3]The claim is somewhat unusual because, although there are two individual claimants, it is in truth concerned with the alleged ongoing failure of the Secretary of State to carry out his duty under the Act towards persons with mental health problems generally.[4]ESA was introduced by the Welfare Reform Act 2007 in place of Incapacity Benefit ("IB"). A key feature of ESA is a Work Capability Assessment ("WCA"), which is a development of the assessment procedures previously used to assess eligibility for IB.[5]It is a matter of fact that some 40% of those whose claims for ESA are turned down appeal to the First-tier Tribunal, and that of those appeals some 40-50% are successful. Accordingly, this represents an apparent rate of error in the assessments of about 20% (ignoring the fact that some unsuccessful claimants probably never lodge an appeal). One reason given for this state of affairs is the absence of any independent medical evidence before the assessors, which is then subsequently obtained and placed before the Tribunal. However, these statistics are of limited value in the context of this application because there is no means of knowing what proportion of either the initially unsuccessful claimants or the successful appellants are persons with mental health problems.[6]The case advanced by the Claimants is that persons with mental health problems may be less aware of the extent of, and possibly even the existence of, their disability and are likely to be less able to appreciate the need for independent medical evidence and, if they do appreciate the need, less likely to be able to obtain it. The Claimants say that the present system does not provide for medical evidence in the case of persons with mental health problems to be obtained as a matter of routine at the outset of the claim. Accordingly, say the Claimants, persons with mental health problems are placed by the system at a substantial disadvantage when seeking to claim ESA.[7]At the heart of this claim there are issues of fact as to the recommendations made for improving the system and the extent to which those recommendations have been implemented.

The procedure for claiming ESA

[8]A prospective claimant who is making a claim for ESA for the first time (and therefore was not in receipt of IB) is required to submit a claim form, together with a certificate from his general practitioner confirming that he is disabled. The certificate is in a standard form (prescribed by the Secretary of State) and provides little information beyond certifying that the claimant is unfit for work and identifying the illness or other reason for it. The medical certificate is not a document upon which a medical assessor can put much weight, although it will of course disclose whether the claimant’s disability is mental or physical.[9]The system, as it was initially set up, almost invariably resulted in a claimant being sent a form, ESA50, by Atos Healthcare (“Atos”), a company which has been engaged by the Secretary of State to carry out the WCA assessments. The ESA50 is a fairly complicated form and it is reasonably clear that some claimants, particularly those with mental health problems, may well have difficulty filling it in. If the form is returned to Atos within the required time scale, the claimant will in due course be summoned to attend a medical assessment. That is carried out by a medically trained person, although not necessarily a doctor, employed by Atos.[10]The medical assessor will interview the claimant and, perhaps, carry out some very basic physical tests and will then complete a form. This form is then sent to the decision maker in the Jobcentre, who will be an employee of the Secretary of State. It is said that in the early days of the new regime the tendency was for the decision maker simply to rubber-stamp the recommendation made by Atos and notify the claimant accordingly.[11]It is clear that this procedure, if it is what actually happened, did not make any particular provision in the case of persons with mental health problems for the obtaining, at the outset, of independent medical evidence from the claimant's general practitioner, a consultant or any other person who had been involved in the treatment of his disorder. That failure is what has given rise to the claim.[12]If the form ESA50 was not returned to Atos, the decision maker would consider the reason for its non return (if evident) and, if there was none or if the reason appeared to be unsatisfactory, the claim would in all probability be rejected.[13]However, many claimants are not claiming ESA for the first time: they were already in receipt of IB (or similar benefit) but have had to be migrated from the old system to the new. In those cases, no formal claim was required but the claimant was required to have a WCA. No up to date medical statement or evidence was obtained, but the assessor and decision maker would consider all information available from the previous case history. There is a huge number of such cases - about 11,000 each week.

The legal framework

[14]The sections of the Act that are relevant to this application are the following: “6 Disability(1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.(2) A reference to a disabled person is a reference to a person who has a disability. . . . 20 Duty to make adjustments (1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. . . . 21 Failure to comply with duty (1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. (3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise. . . . 29 Provision of services, etc. . . . (7) A duty to make reasonable adjustments applies to— (a) a service-provider (and see also section 55(7)); (b) a person who exercises a public function that is not the provision of a service to the public or a section of the public. . . . 31 Interpretation and exceptions (1) This section applies for the purposes of this Part. . . . (3) A reference to the provision of a service includes a reference to the provision of a service in the exercise of a public function.(4) A public function is a function that is a function of a public nature for the purposes of the Human Rights Act 1998. . . . (9) Schedule 2 (reasonable adjustments) has effect.” (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities. (a) a service-provider (and see also section 55(7)); (b) a person who exercises a public function that is not the provision of a service to the public or a section of the public.[15]Schedule 2 contains the following relevant provisions:
“SCHEDULE 2 Section 31 SERVICES AND PUBLIC FUNCTIONS: REASONABLE ADJUSTMENTS 16. Preliminary 1. This Schedule applies where a duty to make reasonable adjustments is imposed on A by this Part. The duty 2 (1) A must comply with the first, second and third requirements. (2). For the purposes of this paragraph, the reference in section 20(3), (4) or (5) to a disabled person is to disabled persons generally.”

SERVICES AND PUBLIC FUNCTIONS: REASONABLE ADJUSTMENTS

[16]The scheme of assessment and determination is set out in the Employment Support Allowance Regulations 2008 ("the Regulations"). Reg 21 provides:
“Information required for determining capability for work (1) Subject to paragraphs (2) and (3), the information or evidence required to determine whether a claimant has limited capability for work is— (a) evidence of limited capability for work in accordance with the Medical Evidence Regulations (which prescribe the form of doctor's statement or other evidence required in each case); (b) any information relating to a claimant's capability to perform the activities referred to in Schedule 2 as may be requested in the form of a questionnaire; and (c) any such additional information as may be requested. (2) Where the Secretary of State is satisfied that there is sufficient information to determine whether a claimant has limited capability for work without the information specified in paragraph (1)(b), that information will not be required for the purposes of making the determination.” (a) evidence of limited capability for work in accordance with the Medical Evidence Regulations (which prescribe the form of doctor's statement or other evidence required in each case); (b) any information relating to a claimant's capability to perform the activities referred to in Schedule 2 as may be requested in the form of a questionnaire; and (c) any such additional information as may be requested. (2) Where the Secretary of State is satisfied that there is sufficient information to determine whether a claimant has limited capability for work without the information specified in paragraph (1)(b), that information will not be required for the purposes of making the determination.”
[17]I would make three preliminary observations on these provisions.[18]First, this claim is not a typical claim for judicial review, in the sense that the court is not being invited to decide whether a particular decision or policy was one that could reasonably have been taken or made by the relevant body, but rather whether or not a particular state of affairs required by statute has been achieved. Therefore, as I understood Miss Nathalie Lieven QC, who appeared for the Claimants, the question for the court is not whether or not the Secretary of State has acted reasonably (in the Wednesbury sense) in relation to the discharge of his duties under the Act, but whether or not he has in fact put in place the reasonable adjustments for people with mental health problems that the Act requires. If this is right, and I did not understand Mr Martin Chamberlain, who appeared for the Secretary of State, to contest it, then there is little, if any, room for a margin of appreciation. It seems to me that the consequence of this is that the threshold for granting permission will in practice be lower than it might otherwise be in ordinary judicial review proceedings.[19]The second preliminary observation on the provisions of the Act is that it seems to me that paragraph 2(2) of Schedule 2 may well provide the answer to Mr Chamberlain's submission that the duty to make reasonable adjustments is actionable only insofar as it constitutes discrimination against an individual claimant. At any rate, it seems to me at least arguable that it does so.[20]Third, regulation 21 does not make the use of a questionnaire obligatory and, by virtue of paragraph (1)(c), it must be open to the Secretary of State or Atos to seek further medical evidence in place of it if it thinks fit.[21]Finally, for the purposes of the present application, I must refer to section 113 of the Act, which provides as follows: “113 Proceedings (1) Proceedings relating to a contravention of this Act must be brought in accordance with this Part. . . . (3) Subsection (1) does not prevent- (a) a claim for judicial review; . . . (a) a claim for judicial review; . . .[22]Section 114 of the Act provides that a county court has jurisdiction to determine a claim relating to, amongst other things, a contravention of Part 3 of the Act. I have already set out the relevant part of section 29(7), which falls within Part 3 and provides that a duty to make reasonable adjustments applies to a service-provider. It is common ground that this is the source of the duty relied on in this case.

The essential issue

[23]The basis of the Claimants’ claim, distilled to its essentials, is that the Secretary of State’s practice of not routinely seeking medical evidence from ESA claimants who are or might be suffering from mental health problems prior to determination of eligibility for ESA constitutes a failure to take such steps as it is reasonable to have to take in order to avoid placing persons with mental health problems at a substantial disadvantage (I take this from paragraph 126 of the Grounds).[24]However, framed in this way the issue does not define with sufficient precision the real point that was at the heart of Ms Lieven’s submissions as they were put in her skeleton argument. That is that the Secretary of State should adopt a practice of ensuring that medical evidence is sought at the start of the determination process, rather than the current practice of either simply waiting to see whether the claimant chooses to submit medical evidence, or seeking such evidence only on an ad hoc or intermittent basis.

The development of the assessment process

[25]The arrangements for the introduction of ESA provided for a statutory annual independent review of the procedure for the first five years. The independent reviewer was a Professor Malcolm Harrington. He produced his first review in November 2010, having received submissions from a wide range of sources, including the NGOs most closely associated with mental health issues. He recorded that the WCA procedures were not working as well as they should: there were clear and consistent criticisms of the whole system, which was said to be impersonal and mechanistic, and the process invoked very negative reactions from those subjected to it.[26]Professor Harrington therefore made a number of recommendations. He was concerned at the evidence that the decision makers were simply rubberstamping the recommendations made by Atos and so he recommended that the decision makers "are put back at the heart of the system and empowered to make an independent and considered decision". At paragraphs 26 and 27 of Chapter 6 of his report he said this: “The review further recommends that Decision Makers are able to seek appropriate chosen healthcare professional advice to provide a view on the accuracy of the report if required.26. The Decision Maker is able to use additional medical evidence to help to assess a customer's eligibility for ESA, but in practice this doesn't appear to be taking place. Decision Makers should be better trained in interpreting medical evidence and in giving appropriate weight to the evidence provided.27. In summary, the Decision Maker has a pivotal role in evidence gathering. They should ask the claimant to name a chosen HCP and seek a report from them (for some claimants, the Decision Maker may have to undertake that task). When the Decision Maker has received the Atos report, including a personalised, free text summary (see chapter 5), they will offer to send it to the claimant’s chosen HCP. When a report has been received, the Decision Maker reviews all the evidence and commissioned reports, including the ESA 50 questionnaire with free text paragraph (see Chapter 4). Following liaison with the claimant and, if necessary, Atos and the claimant’s HCP adviser, the Decision Maker makes a decision.” [Original emphasis] [Original emphasis][27]There was a dispute as to the correct interpretation of the second sentence of paragraph 27. Miss Lieven submitted that the Decision Maker was not only required to ask the claimant to name a chosen HCP (healthcare professional) but also to obtain a report from that HCP. Mr Chamberlain disagreed. He submitted that the intention of the sentence was that the claimant should obtain the report from the chosen HCP, unless he or she was unable to do so, in which case it would have to be obtained by the decision maker.[28]In my judgment, Mr Chamberlain's submission is clearly correct. However, this still left a question as to the stage at which Professor Harrington was contemplating that the report should be obtained. Ms Lieven submitted that it was right at the outset, but I am not confident that she is right about that. However, it is a matter that I should probably not attempt to resolve on a permission application.[29]In the list of recommendations at Annex A to Professor Harrington's report, only the words in bold appear in relation to the recommendation that is the subject of the rationale set out in paragraphs 26 and 27 of Chapter 6 set out above.[30]The Secretary of State indicated that he accepted all the recommendations in Professor Harrington’s report, but in relation to this particular recommendation the Government's response was in the following terms:
"Response: Accept Rationale: Decision Makers should seek appropriate advice and/or additional evidence in coming to their determination if they require. Different approaches, e.g., with Atos healthcare professionals providing advice and support in interpreting evidence on site through case consultations or "surgeries" and or workshops/training events, are currently being trialled."

The submissions of the parties

[31]As I have already indicated, the thrust of Ms Lieven's case was that Professor Harrington's recommendation in November 2010 recognised the need for medical evidence to be obtained at the outset. She submitted that this recommendation had not been properly implemented and she drew attention to the Government's response which, she said, did not appear to involve any change from the pre-existing approach. The reference to healthcare professionals in that response was a reference to Atos healthcare professionals, not to independent medical evidence. She submitted that the whole point of Professor Harrington's recommendation was that independent medical evidence should be sought at an early stage: the Government’s response had simply missed the point.[32]She submitted more generally that the evidence as a whole demonstrated that persons with mental health problems were at a substantial disadvantage when it came to the obtaining of medical evidence (in the respects that I have already mentioned). There is plenty of evidence from the NGOs concerned with mental health that this is so.[33]Accordingly, Miss Lieven submitted that under the Act the Secretary of State was under a duty to make reasonable adjustments to the procedure so as to remove this substantial disadvantage. The principal adjustment required was the early obtaining of independent medical evidence in those cases where the claimant had mental health problems. However, the evidence, taken as a whole, showed, or at least arguably showed, that this had not happened, with the result that the Secretary of State was in breach of his duties under the Act.[34]Mr Chamberlain had several answers to this case.(1) He submitted that a duty to make reasonable adjustments is actionable only insofar as it constitutes discrimination against an individual claimant contrary to s 21(2) of the Act: see s. 21(3). It is not open to these claimants to seek relief on behalf of those suffering from mental health problems generally.(2) But, in any event, there is no evidence that the current assessment system places persons with mental health problems at a substantial disadvantage when compared with persons who do not have mental health problems.(3) The current assessment system already caters for the needs of people with mental health problems.(4) The Government has accepted all the recommendations made by Professor Harrington in his first report and Professor Harrington has himself confirmed in his second report that all those recommendations had been, or were being, implemented.[35]But Mr Chamberlain also had a further threshold argument, which was that the Act provided an alternative remedy in the County Court with the result that to proceed by way of judicial review was inappropriate. He submitted also that the statutory remedy in the County Court was more suited to the resolution of the types of factual dispute that were likely to arise in proceedings by way of judicial review.[36]I have already indicated that I consider that Ms Lieven’s answer to Mr Chamberlain’s first point to be arguable. In support of his case that the current assessment system already caters for the needs of people with mental health problems, Mr Chamberlain submitted that appropriate reasonable adjustments had been identified in Professor Harrington’s first report and that, in his second report, he concluded that the recommendations of his first report had been implemented. Since, Mr Chamberlain submitted, Professor Harrington’s recommendations should be taken to represent what is required by way of reasonable adjustments, it follows that Secretary of State has complied with his duties under the Act.[37]The issues raised by Mr Chamberlain’s second and third points are essentially issues of fact. In order to refuse this application for permission I must be satisfied either(1) that Mr Chamberlain’s answers to the Claimants’ case are so strong that a contrary conclusion is not reasonably arguable or(2) that Mr Chamberlain’s threshold argument about the existence of an alternative remedy is a good one.[38]The current version of the questionnaire ESA50 (unlike the earlier forms) has these words printed clearly in bold on the first page of the form itself:
"If you have any medical reports from your doctor, consultant or health care professional, or any other information you wish us to see, please send them with this questionnaire."
On the final page of the form, the following words appear:
"Tick this box if you are including any medical reports."
[39]Mr Chamberlain referred me to a document containing guidance for those involved in the WCA process, the precise title of which is not clear, which contains this, at paragraph 115:
"If the mental health flag has been set when the Q referral was made, the MSRS system will automatically identify any mental health cases and the cases will be referred to a Health Care Professional (HCP) and the WCA referral action will continue within Medical Services."
It is to be noted that this paragraph immediately follows the rubric "ESA 50 not returned - Mental Health Flag Set”. Therefore it is not dealing with the situation that arises upon receipt of a claim. There are then further provisions in the document giving guidance on how to proceed in cases where the mental health flag has been set. For the purposes of this judgment, it is not necessary to look at them. The point that Mr Chamberlain was inviting me to take from this document was that it provides an example of one of the ways in which the system has been adjusted to cater for those with mental health problems.[40]Mr Chamberlain also referred me to a document entitled "Training and Development ESA Filework Guidelines (For Health Care Professionals)", Version: 6 Final, dated 16 December 2010. The date suggests that the final version of this document may have taken into account the recommendations made by Professor Harrison in his first report.[41]Paragraph 2.5.2 of this document, entitled "Requests for FME" (where FME stands for further medical evidence), contained the following passages:
"Where, in the scrutinising practitioner’s judgment, there is a clear possibility that an examination may be avoided they should make reasonable attempts to seek further evidence. FME should not be requested simply to confirm that an examination is required or to obtain further information to assist the examining HCP.” And "
Where there is evidence of a previous suicide attempt, suicidal ideation or self harm expressed in the ESA50/50A, the HCP must request FME."[42]So far as the first of these passages is concerned, there is nothing in its wording or the surrounding context that limits it to claimants with mental health problems. By contrast, the second passage is clearly referring to those with mental health problems. The difficulty with it, from Mr Chamberlain's point of view, is that it is based on the assumption that the ESA50 questionnaire has already been completed and returned. Miss Lieven's case is that the obtaining of further medical evidence in cases where the claimant has mental health problems should have taken place before there is any question of completing the ESA50.[43]A further passage in this section of the document, under the heading "Potential Review Criteria", said this:
"Each case must be considered on its individual merits. However, in deciding the appropriate course of action, you may wish to consider the following points: . . . ● Where a claimant is likely to be so distressed by being called for an examination or have such a high level of disability that an examination will only be considered when all evidence gathering has failed, the case should be reviewed further. In particular consider those claimants with major mental health conditions such as psychotic illnesses and claimants who, for example, are oxygen dependent, or quadriplegic etc."
[44]Whilst this is clearly advice that is intended to meet the needs of those with mental health problems, it may be thought that it is fairly limited in its application because it refers only to those claimants with major mental health conditions, which is at best ambiguous or, at worst, may remove from its ambit many persons with mental health problems who might find an interview distressing.[45]Paragraph 3.1.3.3 of this document, headed "Claimant accompanied by relative, friend, carer", said that claimants should be encouraged to bring a friend or companion with them to the assessment, because they may feel more at ease if accompanied. It noted that companions would be “able to give useful information, particularly in cases where the claimant has mental function problems, learning difficulties, or communication problems, or people who stoically understate their problems”.[46]However, this is another provision which is assuming the need for an interview, rather than one which provides for the obtaining of appropriate medical evidence before considering whether the assessment process requires a face-to-face interview.[47]Finally, Mr Chamberlain referred me to Professor Harrington's second annual report, issued in November 2011. Under the heading "Implementation of year one recommendations, Professor Harrington wrote this: "4. I am pleased to say that all the year one recommendations have been, or are being, implemented. The Department for Work and Pensions (DWP) moved swiftly to make the recommendations Departmental policy and DWP Operations and Atos Healthcare have enacted these policy changes.” Mr Chamberlain submitted that there was nothing in Professor Harrington's first report that said that further medical evidence should be asked for at the outset in all cases of those with mental health problems. As I have already indicated, this is a point which remains unclear and which I consider is not appropriate for determination on a permission application.[48]Mr Chamberlain reminded me that in their Statement of Facts and Grounds the Claimants advanced various suggestions as to the adjustments that could and should be made to meet the problem about which they were complaining, and that the second bullet point under paragraph 135 said this: "The claim form should be amended to make clear that medical evidence may be supplied with the claim, the purpose for which such evidence may be used, and why it may be beneficial.”[49]Mr Chamberlain submitted that this was based on paragraph 27 of the first report of Professor Harrington. Therefore, submitted Mr Chamberlain, this is an example of a situation where the Claimants were alleging failure to implement a recommendation that Professor Harrington himself thought had been implemented (and, it seems, has been implemented).[50]In her reply, Miss Lieven submitted that the court should not speculate on why Professor Harrington had said that his recommendations had been complied with. Whether or not that was the case was a matter for the court to determine.[51]Mr Chamberlain's succinct, forceful and well directed submissions came close to persuading me that I should refuse permission in this case on this first limb. However, I have concluded on reflection that Miss Lieven has made out a sufficiently arguable case to justify the grant of permission in relation to the factual issues. In particular, I consider that it is at least reasonably arguable that the reasonable adjustments required by the Act include the early obtaining of independent medical evidence where the documents submitted with the claim show that the claimant suffers from mental health problems and that this has not been done, or at least not done on a sufficiently widespread basis.[52]I have not overlooked the argument that may well be raised that the Claimants’ case may amount to requiring steps to be taken that are in practice unrealistic. However, that is a point that must be explored, if it arises, at a substantive hearing and not on a permission application.

The threshold issue: is judicial review the appropriate remedy?

[53]Since the Act specifically permits claims for judicial review, this appears to be a case where there are alternative remedies, although it is debatable whether either of the two Claimants would have had any relevant remedy in the county court at the time when these proceedings were brought - a point to which I will return below.[54]In R v Devon County Council, ex parte Baker [1995] 1 All ER 73, to which I was referred by Miss Lieven, Simon Brown LJ said this, at page 92: “Which of two available remedies, or perhaps more accurately, avenues of redress, is to be preferred will depend ultimately upon which it is more convenient, expeditious and effective. Where ministers have default powers, application to them will generally be the better remedy, particularly where, as so often, the central complaint is in reality about the substantive merits of the decision . . . Where, on the other hand, as here, what is required is the authoritative resolution of a legal issue, issue no 1, then, in common with Dillon LJ, I would regard judicial review as the more convenient alternative remedy."[55]In response, Mr Chamberlain referred me to C v The Financial Services Authority [2012] EWHC 1417 (Admin), and to the observations of Silber J at paragraphs 90-93. At paragraph 89 Silber J noted that the cases showed that judicial review would not be granted where there is an alternative remedy as long as it is "equally effective and convenient" or "suitable to determine the issue".[56]In the light of these submissions it is necessary to consider the position of each of the Claimants in a little more detail.(1) The First Claimant was diagnosed with multiple sclerosis in his mid thirties. He was then a Research Manager for the World Future Council, an international NGO. This has impacted on his mental health. He has been diagnosed as suffering from "severe anxiety/depression", with suicidal ideation, and prescribed mirtazapine, an antidepressant. Much to his surprise the result of his assessment in early 2011 was that he was awarded no points. He then obtained further medical evidence, together with evidence from his girlfriend, and was then able to persuade the First-tier Tribunal that he was incapable of work by reason of his mental health problems. Ms Lieven submits that this was, to all intents and purposes, a finding that his mental health issues had a substantial effect on his ability to carry out day to day activities (to an extent making him incapable of work). She submits that there is nothing to suggest that he has subsequently improved, and will therefore not face further problems as a result of his mental health problems in any review of his entitlement to ESA. In his witness statement he said: “If expert evidence had been sought by the DWP in my case at an early stage, a great amount of distress and physical and mental setbacks could have been avoided. I understand that it is likely that I will have to go through this process again when my case is reviewed. If new procedures are not introduced so that medical evidence is both sought and considered by the DWP at the beginning of a case like mine, I fear further damage will be done to my health."(2) The Second Claimant says that she has been unable to work since 1992 and was diagnosed with schizoaffective disorder in 1997 or 1998, and has been accepted as incapable of work for the purposes of claiming IB since the mid 1990s. She is under the care of her local Community Mental Health Team who have expressed the view that "the nature of her illness means that she can have great difficulty in social and stressful situations". She says that her last experience of the IB assessment process, in 1995, was traumatic. She is concerned at the prospect of being called for an assessment when she is due for migration to ESA.[57]In each of these cases it is not clear to me what relief either Claimant could obtain by bringing proceedings in the County Court confined to the circumstances of his or her own case. Mr Chamberlain pointed out that a judge of the County Court has the power to grant any remedy which could be granted by the High Court on a claim for judicial review (section 119 of the Act). However, a declaration, if granted, that the Secretary of State should have obtained expert independent medical evidence in relation to the condition of the First Claimant prior to his assessment by Atos might well have been of somewhat limited value to those suffering from mental health problems as a class.[58]Given the statutory provisions, there can be no bar to an application for judicial review and, in the case of this claim, I am clearly of the view that a judicial review provides the most convenient, expeditious and effective means of fairly disposing of it. Miss Lieven has made no bones about the fact that this claim is being brought for the benefit of those persons suffering from mental health problems as a class. Unless that can be regarded as an abuse of the process of the court, which was not a submission made by Mr Chamberlain, very properly if I may say so, I do not see why this is not a proper case for judicial review. I therefore reject the alternative remedy defence. Further, I do not consider that it is sufficiently arguable to justify my giving a direction that it should be determined as a preliminary issue, as the Secretary of State invites me to do.

Transfer to the Upper Tribunal

[59]Miss Lieven invites me, assuming that I am minded to give permission, to transfer this case to the Upper Tribunal (AAC). This is opposed by Mr Chamberlain.[60]Miss Lieven submits that this is an obvious case of transfer and that it is a case in which the court has the power, though not a duty, to transfer the case to the Upper Tribunal. Mr Chamberlain does not dispute that the court has this power. He submits that the judges of the Upper Tribunal, whilst specialists in social security or tax law, are no better qualified to determine this case than a judge of the Administrative Court. From my own experience I am really in no position to express a view about this, but the one decision of the First-tier Tribunal that I have seen in this case would suggest that it is extremely well qualified to deal with cases of this sort. Further, one advantage of transferring this case to the Upper Tribunal suggested by Miss Lieven is that it could be heard by a panel of judges, probably chaired by a High Court Judge. Since this is a fact sensitive case involving issues that could have significant ramifications for the administration of ESA, a tribunal consisting of a member or members who may have experience of the workings of the state benefit system would, I think, be an advantage.[61]In these circumstances, I consider that it would be appropriate to transfer this case to the Upper Tribunal (AAC) and so I will make the appropriate order.[62]I will if necessary hear counsel on the form of relief and on any questions of costs that are not agreed.

Cited in 2 later judgments