MM v Secretary of State for Work and Pensions [2013] UKUT 0259 (AAC)

UKUT-AAC
MM v Secretary of State for Work and Pensions
[2013] UKUT 0259 (AAC) · 2013-05-22
[1]This is a claim for judicial review which was transferred to the Upper Tribunal (Administrative Appeals Chamber) by Edwards-Stuart J when he granted permission to bring the claim. He transferred the case because, in his view, it is fact sensitive and involves issues that could have significant ramifications for the administration of the Employment and Support Allowance (“ESA”), and therefore a tribunal consisting of a member or members who have experience of the workings of the state benefits system would be an advantage. Two of us have considerable experience in that field and in respect of hearing appeals relating to ESA and its predecessors.[2]In argument before us people with impaired mental, cognitive and intellectual functions have been referred to as people with mental health problems or “MHPs”. We will adopt this approach. Both of the Applicants (DM and MM) have MHPs.[3]The Applicants argue that the process of assessment for entitlement to ESA discriminates against people with MHPs by reason of the failure of the Secretary of State for Work and Pensions (“the SSWP”) to make "reasonable adjustments" as required by the Equality Act 2010. In general terms: i) the Applicants assert that the ESA assessment process discriminates against claimants with MHPs, because such people, by the nature of their conditions, face particular disadvantages in respect of its application, ii) the adjustment that the Applicants seek relates to the approach of the SSWP to obtaining further medical evidence (“FME”), iii) the Applicants’ primary case is that, the reasonable adjustment that the SSWP is under a duty to make pursuant to the Equality Act 2010 is to provide that FME is always sought at an early stage in the case of a claimant for ESA with a MHP, and, in argument, they advanced the alternative that as a minimum the SSWP should implement a recommendation which we define later as the Evidence Seeking Recommendation, and iv) the SSWP argues that the claim should be dismissed.[4]The Department of Work and Pensions (“the DWP”) is responsible for the administration and payment of ESA.[5]The First Applicant, MM, is a man with a MHP who has been through the ESA assessment process. His claim for ESA was refused by the DWP. MM appealed to the First-tier Tribunal (“the FtT”) and his appeal was successful. He faces regular reviews of his entitlement to ESA and asserts that he fears that on those reviews he may again have to appeal the decision of the DWP on entitlement, if the approach of the SSWP is not adjusted in respect of the obtaining of FME.[6]The Second Applicant, DM, has a severe mental illness, Schizoaffective Disorder, and has been in receipt of Incapacity Benefit (“IB”), the predecessor to ESA for a number of years. She will be subject to assessment for ESA at a date to be determined between now and 2014. The last time she underwent an assessment for IB, in 1995, she found the process to be traumatising and, despite qualifying for IB, she relapsed, and was readmitted to hospital. She asserts that her fears concerning the fact of having to undergo the process of assessment for ESA are exacerbated by her fears about the way in which her case will be considered, especially in relation to the approach taken to obtaining FME.[7]As both Applicants have now had the benefit of experienced legal advice a factual difficulty which they face is that they are now fully aware of their ability, at the times the relevant assessments start, to provide the FME that they, and their advisers, maintain to be relevant. But, as they correctly point out, other people with MHPs will not have had the benefit of such advice, or other advice, which would lead them to submit to the DWP the FME that the Applicants assert the SSWP should obtain in every case in which the entitlement of a person with a MHP to ESA is being assessed by the DWP.[8]Three charities (Mind, the National Autistic Society and Rethink Mental Illness) were given permission to submit evidence and to make representations under rule 33 of the Tribunal Procedure (Upper Tribunal) Rules 2008 in order to assist us in understanding the particular problems faced by people with MHPs and to advance their views on the issues in this case. In doing so they put in evidence. The Equality and Human Rights Commission was also given permission to make representations under rule 33 with its focus on the Equality Act 2010. In the absence of any statutory term under rule 33, we have adopted Intervener and, when we refer only to the charities, Charity Interveners. ESA[9]Before turning to the arguments, it is necessary to describe: i) how decisions on entitlement are made, the basics of entitlement to ESA and in particular, the routes by which a claimant becomes, and may remain, entitled to benefit, and so ii) the present practice, in particular in respect of obtaining FME, in relation to which the Applicants assert the DWP has a duty to make reasonable adjustments because it puts claimants with MHPs at a substantial disadvantage.[10]ESA is governed by the Welfare Reform Act 2007 (‘the WRA 2007’) and its supporting regulations, the Employment and Support Allowance Regulations 2008 (‘the 2008 Regulations’). It replaces IB. It is administered by the DWP and decisions on claims for ESA on behalf of the SSWP are made through its departmental decision-makers (“DWP decision-makers”). They alone are responsible for making ‘outcome decisions’, which include the decision on whether a claimant is entitled to benefit.[11]Within that process, the DWP refers aspects of a claim to its medical service provider, which is currently Atos Healthcare (“Atos”). Atos in turn engages health care professionals (“HCPs”) whose duties include, for example, scrutinizing self-assessment questionnaires (the ESA50) which claimants are obliged to return from time to time, gathering documentary evidence (usually of a medical nature), undertaking face-to-face examinations and assessments and providing reports to the DWP decision-maker.[12]The assessment of whether a claimant is entitled to ESA is at the heart of the system. For our purposes, we must consider three types of claimants who are required to undergo assessments: i) ‘new’ claimants, ii) existing claimants who have been accepted as having limited capacity for work (or, as we understand it, limited capability for work-related activity) whose cases are reviewed from time to time. These cases are described in some of the relevant documents as “re-referral cases”, and iii) claimants who are currently in receipt of incapacity benefits (IB and Income Support on the basis of incapacity to work, and Severe Disablement Allowance). This class of claimants is gradually being assessed as either entitled to ESA or fit for work. The process by which this is done is called the conversion process and in some of the relevant documents these cases are described as IB “re-assessment cases”.[13]Sections 8 and 9 of the WRA 2007 make entitlement to ESA dependent on the extent to which a claimant is restricted by his physical or mental conditions. Claimants may be classed as either having “limited capability for work”, or as having more severe restrictions by reason of which they have “limited capability for work-related activity”. Those with limited capability for work are expected to engage in certain work-related activities. They are put into the Work Related Activity Group (WRAG). Those who are more restricted are not expected to undertake work-related activities. They are put into the Support Group.[14]The WRA 2007 requires the Secretary of State to assess the extent of a claimant’s capability for work by reference to the 2008 Regulations. Whether it is, or is not, reasonable for the claimant to work depends on whether he meets the strictly defined criteria in the 2008 Regulations. They have been amended over time, and are due for further amendment in April 2013. It was not suggested that the forthcoming amendments would have a material impact on the issues before us.[15]Part 5 of the 2008 Regulations (Regulations 19 to 33) and Schedule 2 govern the determination of limited capability for work. The test is often called the Work Capability Assessment (“the WCA”). This is a key feature of the assessment of the entitlement to ESA and was designed and intended to remedy and change the method of assessment which had preceded it in respect of IB (the Personal Capability Assessment –“the PCA”). The independent reviewer of the WCA, referred to below, Professor Harrington, has stated that the PCA:
“ lacked a focus on the positive effects of work and the interactions between recovery and work. [It] relied upon a medical model that took a binary approach to incapacity, considering the curing of incapacity as the only route back towards work. This approach helps reinforce the myth that you have to be fully fit to work. ”
By contrast, the WCA seeks to focus on what the individual can do, rather than what he or she cannot do.[16]Part 6 (Regulations 34 to 39) and Schedule 3 govern the determination of whether a claimant has limited capability for work-related activity.[17]Each Schedule contains an exhaustive list of descriptors upon which capability for work or work-related activity is determined. The descriptors in Schedule 2 are grouped under Activities and are worth 6, 9 or 15 points each and to qualify a claimant has to score 15 points. Schedule 3 does not have a scoring system and the claimant qualifies as having limited capability for work-related activity if at least one or more of the descriptors applies to him.[18]The descriptors are based on the ability to perform functional activities as described in the descriptors. The descriptors in Schedule 3 comprise a number of the more stringent descriptors from Schedule 2 and a number of specially devised descriptors. For those who ‘pass’ the assessments, ESA is payable at two rates, the higher rate being payable if the claimant’s capability for work-related activity is limited. Whilst ESA claimants are usually assessed on their functional limitations, the 2008 Regulations enable certain claimants to be treated as having limited capability for work:(i) without undergoing an assessment at all in certain circumstances (e.g. regulations 20, 25, 26); or(ii) in exceptional circumstances where, the claimant does not have limited capability for work as determined in accordance with the WCA, one of the circumstances in regulation 29(2) is established:
“ 29(2) This paragraph applies if— (a) the claimant is suffering from a life threatening disease in relation to which— (i) there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure; and (ii) in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure; or (b) the claimant suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work. ”
[19]The provisions mentioned in Regulations 20, 25, 26 are ‘non-functional’ and relate to those who are, for example, terminally ill, receiving certain types of treatment or are in-patients in hospital. Regulation 29(2) is also non-functional, but unlike the other regulations, is expressed to be an exception. But it, and its equivalent in Regulation 35 can be applied without the claimant going through an assessment of whether he or she has a limited capability for work or for work-related activity.[20]Regulation 35 sets out the exceptional circumstances by which a person may be put into the Support Group even though he has not qualified under Schedule 3: 35. —(1) A claimant is to be treated as having limited capability for work-related activity if—(a) the claimant is terminally ill;(b) the claimant is— (i) receiving treatment by way of intravenous, intraperitoneal or intrathecal chemotherapy; or (ii) recovering from that treatment and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work-related activity; or(c) in the case of a woman, she is pregnant and there is a serious risk of damage to her health or to the health of her unborn child if she does not refrain from work-related activity. (2) A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) is to be treated as having limited capability for work-related activity if— (a) the claimant suffers from some specific disease or bodily or mental disablement; and (b) by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity. Assessment[21]It is important to bear in mind that there is no formal assessment of fitness when a person first makes a claim for ESA. New claimants are treated as having a limited capability to work (and thus entitled to ESA) simply by submitting a claim form (ESA1) accompanied by the relevant medical evidence from his or her GP (regulation 30). The medical evidence used to be called a ‘sick note’, but is now called ‘a fit note’. The period of time during which a claimant is treated as having limited capability for work is called ‘the assessment period’. This is normally 13 weeks but is automatically extended until such time as he or she is more formally assessed.[22]Following the assessment, a DWP decision-maker will decide whether the new claimant has limited capability for work, rather than just being treated as having that limited capability. If so, his or her entitlement to ESA continues and the new claimant will be allocated to the WRAG or the Support Group, depending on the descriptors or non-functional provisions he or she satisfies. If not, the existing award is terminated.[23]Existing claimants who have previously been assessed and found to have limited capability for work or limited capability for work-related activity are reassessed from time to time to see whether they remain entitled to benefit. These are re-referral cases and if the claimant is successful, the award continues. If not, the existing award is terminated.[24]Claimants who are being considered for possible conversion from IB to ESA are called for assessment under the 2008 Regulations. The assessment criteria are considerably more stringent than those which applied under the PCA to IB. If the claimant passes the assessment, he or she is awarded ESA. If not, the IB or Income Support award is terminated.[25]To sum up in broad terms, there are three ways in which a claimant can establish entitlement to ESA on the basis of limited capability for work and so be placed in the WRAG. They are: i) by scoring 15 points under Schedule 2, ii) by establishing that he or she falls be treated as having limited capability for work under Regulations 20, 25, 26, and 33(2), and iii) by establishing that he or she falls to be treated as having limited capability for work because of the exceptional circumstances defined in Regulation 29(2).[26]In equally broad terms, there are two ways in which a claimant can establish his entitlement to ESA on the basis that his or her capability for work-related activity is limited and be assigned to the Support Group. They are: i) by satisfying a descriptor in Schedule 3, or ii) by establishing that he or she falls to be so treated under Regulation 35.[27]To monitor the working of ESA, section 10 of the WRA 2007 requires the SSWP to put before Parliament an independent report annually for the first five years after sections 8 and 9 come into force. The independent reviewer, Professor Harrington, has so far provided three reports, the third report was published in November 2012. This was after this claim was brought and only very shortly before the evidence on behalf of the SSWP was filed. The present process for the determination of the entitlement to ESA, the recognition within it of difficulties faced by claimants with MHPs and steps taken to address them[28]Guidance on the assessments pursuant to the 2008 Regulations is contained in a document entitled “Training and Development: ESA Filework Guidelines”, Final, December 2010 (“the Filework Guidelines”). We were also referred to another document, entitled the “Employment and Support Allowance: Work Capability Assessment Outcomes made on Paper Evidence”, November 2012 ("the 2012 Paper Assessment Study") which is a statistical survey of the processing of claims for ESA, in particular "information on those claims where Atos healthcare make their recommendations using paper based evidence only rather than face-to-face assessment” (see Introduction, p 2), as evidence of the approach taken.[29]Regulations 21 and 36 are important starting points in the process as they set out the information required for a WCA. They provide: Information required for determining capability for work 21. —(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. (3) Paragraph (1) does not apply in relation to a determination whether a claimant is to be treated as having limited capability for work under any of regulations 20 (certain claimants to be treated as having limited capability for work), 25 (hospital in-patients), 26 (claimants receiving certain regular treatment) and 33(2) (additional circumstances in which a claimant is to be treated as having limited capability for work). Information required for determining capability for work-related activity 36 —(1) Subject to paragraph (2), the information or evidence required to determine whether a claimant has limited capability for work-related activity is— (a) any information relating to the descriptors set out in Schedule 3 as may be requested in the form of a questionnaire; and (b) 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-related activity without the information specified in paragraph (1)(a), that information will not be required for the purposes of making the determination.[30]In summary, both regulations make provision for a questionnaire directed to obtaining information regarding the functional tests in Schedules 2 and 3 and provide that, if the SSWP is satisfied that there is sufficient information to determine whether the claimant has the relevant limited capability without it, that information will not be requested by the questionnaire The questionnaire that is issued is the ESA50 and we understand that this is the questionnaire used in all three types of claim.[31]The evidence referred to in Regulation 21(1)(a) is what is now called a “fit note”.[32]It is to be noted that Regulation 21(1) applies to some but not all of the relevant regulations under which a claimant can be treated as having limited capability for work. In particular, it does not apply to Regulation 29(2)(b) (the exceptional circumstance relating to substantial risk if a claimant is found not to have limited capability for work) or Regulation 35(2)(b). In practice, relevant information on these tests is, or can be, derived from the claimant’s responses to the ESA50. The ESA50 also includes the statement in bold: “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”; and, in addition, a free text box which enables claimants to explain their position in their own words. These parts of the ESA50 give the claimant an opportunity to provide FME and reflect the approach of Professor Harrington in his first two reports that the onus is and must be on the claimant to provide information to support the claim.[33]The decision whether an ESA50 is required is, in practice, left to Atos through its HCPs. We were told that Regulation 21(2) is not applied by a DWP Decision-maker on a case by case basis but has been, and is being, applied by a general decision made by or on behalf of the SSWP. No points were taken on whether the delegation of this matter to Atos was lawful or on the lawfulness of the approach taken by the SSWP to the application of Regulations 21(2) and 36(2), and accordingly we have not considered any such points.[34]It was common ground before us that every claimant is required to complete an ESA50 before he undergoes his or her first assessment for ESA. We confess that we are not clear whether that common ground covered IB re-assessment cases and re-referral cases but do not think this matters, and the position adopted before us was that we should proceed on the bases that: i) in all three types of case the DWP refer the assessment process to Atos by an IT platform, the Medical Services Referral System (“the MSRS”), which holds the relevant case details, and by that route: a) on a new claim, Atos will receive the claim form (ESA1) accompanied by a medical statement from the claimant’s doctor (the fit note) which contains a diagnosis of the claimant's condition and comments on the functional effects of the condition, b) on an IB re-assessment case, there will be no ESA claim or claim form, no medical statement (fit note) is required and Atos will receive all available information relating to the previous claims, and c) on a re-referral case, no medical statement is required but Atos will receive all available information relating to the previous claims ii) if the claimant has, or claims that he has, a MHP, the case is flagged to that effect (and, as we understand it, this flag is triggered by the information in (i)(a) to (c) above, or by information provided later if the flag is not already in place, and iii) in every case, Atos request that an ESA50 is completed.[35]This flag is a clear recognition by the DWP that claimants with MHPs may have particular difficulties relating to their MHPs with the assessment process that do not, or do not necessarily, arise with other claimants. This is also recognised in other aspects of guidance and practice relating to obtaining FME in respect of claimants with MHPs.[36]Before turning to that we should mention that: i) All new claimants are informed by the ESA 1 claim form that: "the best way to make a claim is by phone" via a free phone number. There are direct free phone lines within Jobcentres, DWP staff will ring claimants back should they prefer and in the majority of cases a DWP agent will collect the relevant data by telephone and will fill in the form on the claimant's behalf. The form can also be filled in online. ii) The Statement of Fitness to Work which a claimant must get from his doctor (the fit note) has been changed substantially since April 2010 and is intended to be more informative. The Guidance currently available to doctors on completing the form is to be revised to reflect research by the Department to help doctors provide information that is as useful as possible to employers. The experience of the two Upper Tribunal judges on this tribunal is that, as the fit note normally consists of little more than a diagnosis and is directed to the claimant’s employer, rather than functional limitations relating to entitlement to ESA, its assistance to the ESA assessment is essentially limited to the provision or confirmation of a diagnosis whose symptoms or effects are known to Atos HCPs, DWP decision-makers and tribunal members. iii) The ESA50 has been prepared following discussions with representatives from, for example, Mencap and the National Autistic Society, to ask a properly structured series of questions to guide a claimant to provide a full explanation of any mental health and other issues.[37]A claimant has 28 days to return the ESA50. If this is not done the claim is normally referred immediately to a DWP decision-maker who considers whether the claimant has good cause for not returning the questionnaire and so whether pursuant to Regulation 22 he should be treated as not having limited capability for work. But, at this stage, if the claimant is identified as having a MHP (by previous flagging or otherwise) a failure to return the ESA50 is treated differently. Instead of referring the matter to a DWP decision-maker, it is referred to an Atos HCP.[38]This is a another clear recognition within the current practice that claimants with MHPs may have particular difficulties relating to MHPs in completing the questionnaire and it provides them with some protection in respect of those possible difficulties.[39]Where the claimant returns the ESA50, or where a claimant has a MHP and has not returned to the ESA50, an Atos HCP will then consider the claimant’s entitlement on the information referred to in paragraph 34(i) above. Obtaining FME under the existing process[40]The Filework Guidelines under the heading “General Principles of ESA Filework” provide that: 2.5 Deferring for FME in ESA Filework Atos Healthcare HCPs are best placed to determine when it is appropriate to request fresh medical evidence from the claimant’s GP or other Healthcare Provider. HCPs must be aware of the issue of consent when requesting FME 2.5.2 Requests for FME FME should be obtained in those cases where there is a strong probability that such evidence will confirm a level of claimed disability where Support Group criteria may be established or "treated as limited capability for work may be confirmed. In re-referral cases, FME may confirm that there has been no improvement in the condition resulting in ongoing functional restriction or may even confirm further deterioration such that Support Group advice may be applicable. Where, in the scrutinising practitioner’s judgement 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. [ methods of obtaining FME are set out ] If information from the GP is needed, usually an ESA113 will be sent. However there may be occasions when a specific issue needs to be addressed and Form FRR2 is more appropriate (e.g. when information about the frequency of epileptic fits is required). FME should always be requested before calling for examination a claimant who is noted to have an appointee. Where there is evidence of a previous suicide attempt, suicidal ideation or self harm expressed in the ESA50/50A, the HCP must request FME. When you request FME, at the time when initiating the FME request you need to determine whether: · The case requires further review if FME is not returned · the case requires examination if FME is not returned therefore where FME is not returned only those cases where review is indicated will be submitted for further review. The remaining cases will automatically be submitted for examination. At the time of calling for FME, if examination on non-return is selected, you must also indicate whether the case is “Dr only” and whether a DV is required. (See Section 10.3 for information on DVs and Appendix A for a list of Dr only conditions). If and when FME is returned, the case will always be reviewed with this further information. The methods of obtaining FME (referred to but not set out in the above quotation) might be read as giving a discretion to obtain it in circumstances other than those mentioned in this guidance. However, it was common ground before us that it was not so interpreted and applied in respect of new claims.[41]Under the headings “ESA Re-referral Filework” and “Scrutiny of evidence in IB Re-assessment cases” further guidance is given in shorter and more general terms and the evidence of the DWP was to the effect that the limitations in 2.5.2 cited above did not apply to their application. This guidance is as follows: 6.1 ESA Re-referral Scrutiny After review of all the evidence, the HCP must make a decision on whether FME is required. The decision on FME should be based on the current evidence available and must only be requested if it is likely to impact on the scrutiny advice [ i.e. whether the claimant should be interviewed ] 7.3 Scrutiny of evidence in the IB Re-assessment Cases In IB reassessment filework, the HCP must scrutinise all available evidence. This evidence may be on MSRS or in the ESA 55 jacket. 7.3.3 MSRS/ESA 55 information At times the evidence in the ESA 50 may suggest deterioration in the condition or that there is unlikely to have been a significant change since the last assessment. Usually there will be a requirement for supportive "Medical facts" to be documented to allow acceptance of LCW/LCWRA under the revised WCA and at times there may be a requirement for FME.[42]Pausing here, it was common ground that in a first assessment case no one is assigned to the WRAG without being called to attend a face-to-face examination, and this provides the underlying reason for the Filework Guidelines already cited, to the effect that: i) FME should only be sought in cases where: a) there is a strong probability that such evidence will confirm that the Support Group criteria may be established, b) there is a strong probability that such evidence will confirm that the claimant should be "treated as limited capability for work”, (but as we were told that in a first assessment case no-one is ever assigned to the WRAG without being called to a face-to-face examination, it seems that if this is applied at all it only applies in practice to re-assessment and re-referral claims), c) a claimant is noted to have an appointee, ii) the claimant has referred to a previous suicide attempt, suicidal ideation or self harm (where the word "must" rather than the word "should" is used in the guidance), and iii) FME should not be sought simply to confirm that an examination is required, or to obtain further information to assist the examining HCP.[43]We note that the Regulations state that a claimant "may" be called to attend a face-to-face medical examination. The DWP decision-maker is given a clear discretion as to whether or not a claimant should attend such an examination. But as already noted, this aspect of the assessment process is delegated to Atos. Paragraph 2.5.2 of the Filework Guidelines (cited in paragraph 40 above) continue as follows: Potential Review Criteria 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 have a terminal illness the case should be reviewed further ] · [ where a claimant reports undergoing chemotherapy the case will benefit from further review ] · 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, our oxygen dependent or quadriplegic etc. This list is not intended to be exhaustive and, as indicated above, you should consider each case on its own individual merits. Examples of cases where it might be appropriate to seek further evidence (when there is insufficient evidence on file) as an alternative to calling the claimant for an examination: · A first referral where, in the scrutinising practitioner's clinical judgement, there may be a severe medical condition or disability present suggesting inclusion in the Support Group. · Where in a re-referral or IB re-assessment case there appears to be a level of functional disability that would meet the limited capability for work criteria[44]The last two bullet points differentiate between types of claim. However, it is not clear to us whether this part of the guidance is to be considered at the same time as, or only after, the earlier guidance we have referred to. But, for our purposes we do not think that this matters. While this part of the guidance gives a wider discretion than the earlier part in respect of the exercise of the power to call for a face-to-face examination it has to be read with the earlier part of the guidance which clearly discourages an HCP from seeking FME and so, for example, the points that in new claims FME should not be requested to obtain further information simply to confirm that an examination is required or to assist the examining HCP. When this is done, in our view, the overall effect of the guidance is that FME should only be sought in cases that are similar to the examples given. The SSWP did not argue that DWP decision-makers or HCPs had a wide discretion not to call claimants with MHPs for a face-to-face examination. Instead, he stressed the justification behind the guidance which served to excuse particular types of vulnerable claimants from face-to-face interviews as a sufficient response to their difficulties.[45]Where, after considering all available information (which will only include FME if it has been volunteered or the claim is one of the few cases in which it will have been sought before this stage), and the above guidance, the HCP considers that a face-to-face examination should take place, special provision is made for claimants with MHPs because of the vulnerability and particular difficulties of this group that are recognised by the DWP. These are: i) where a claimant with a MHP fails to attend a face-to-face examination, a DWP decision-maker will not normally proceed to take an immediate decision on entitlement but will instead attempt to contact him or her by telephone and, if appropriate, arrange a "safeguarding home visit" before a decision on entitlement is made, ii) where a claimant with a MHP does attend for a face-to-face examination, he or she is encouraged to bring an advocate or friend for support during the examination, iii) special training and guidance are given to HCPs in assessing persons with MHPs, and the WCA Handbook notes as follows: Mental health conditions can result in significant functional restrictions for many individuals and the assessment of those with problems can be challenging. The presence of a mental health problem may be obvious from the medication/med3 details etc but may not always be immediately apparent. The HCP must consider in all cases whether there may be any evidence of any mental function problem. They should be mindful that those with physical problems may also have subsequent mental health issues and careful and detailed exploration of these issues must be a part of any assessment. Some people will be reluctant to disclose mental health issues due to fear, embarrassment etc and HCP's must use all their communication skills to ensure they obtain all relevant information possible to ensure the claimant's true level of function is accurately reflected. The HCP must have a high level of suspicion about the presence of any mental function issue and must carefully explore mental health symptoms that may not be overtly "provided" by the claimant. ” (We mention that it was common ground before us that in the last sentence the word “suspicion” carried the meaning that the presence of a MHP must be carefully investigated by the HCP to try to identify and take into account symptoms that were not overtly provided to the DWP.)[46]So, generally, that special provision is directed to the stage of the face-to-face examination by which time the claimant will have completed an ESA50 and FME will only be available if it has been volunteered or the claim is one of the few cases in which it will have been sought by then. And, that special provision, and the check referred to in the next paragraph, do not include a practice as to when FME should be sought, although we understand that it might be sought at those stages in a few cases.[47]Finally, where after considering all relevant information, the DWP decision-maker is minded to disallow a claim he will make up to 2 attempts to telephone the claimant to inform him or her of the likely decision and, in so doing, to try and identify any inaccuracies in the Atos assessment. If, as a result of the telephone call, the DWP decision-maker has concerns about a claimant with MHPs he or she can request a safeguarding home visit at which matters will be explained to the claimant face-to-face. This telephone call could also lead the DWP decision-maker to allow the claim, or to consider it appropriate to seek further advice from the HCP, or to request a claimant to submit further written evidence, or to contact (with relevant consents) the claimant's chosen healthcare advisor to confirm the information provided by the claimant. Pausing here - The recognition of the difficulties of claimants with MHPs and the obtaining of FME under the present practice[48]It is recognised by the DWP in its present practice (e.g. by flagging and in the WCA Handbook notes) and its evidence in this case that claimants with MHPs have vulnerabilities and present (or can present) challenging problems. This is also recognised by Professor Harrington, who refers to the “unique circumstances of their condition” (see paragraph 41 of his third report quoted at paragraph 60 below).[49]We confess that, as no doubt the preceding paragraphs show, we have not found it easy to pin down with precision when FME is sought as a matter of discretion under the present practice, and so in the application of the Filework Guidelines, in all of the three types of claim. Our difficulties in this respect focus on re-referral and re-assessment claims when the DWP will have more information than on a new claim and cases to which Regulations 20, 25, 26, 29 and 35 apply.[50]The position adopted before us and our understanding of the Filework Guidelines and the evidence of the present practice in respect of new claims is that: i) the circumstances in which FME is required to be sought by a DWP decision-maker and/or an HCP are very limited (namely when there is a strong probability that the Support Group criteria will be established, the claimant has an appointee and when there is evidence of a previous suicide attempt, suicidal ideation or self harm expressed in the ESA50; and even if there is a strong probability that treated as limited capability for work may be confirmed this does not in a new claim found a requirement to seek FME), ii) those limited circumstances in which FME is required to be sought are not directed to and are not applied to claims where Regulations 29(2)(b) and 35(2), which are non-functional tests that, in the case of a claimant with MHPs are directly related to that claimant’s mental health, and in such claims the claimant will be required to fill in an ESA50 (but see the next paragraph), iii) the present practice does not require FME to be sought in any other circumstances before the ESA50 is completed and so there is no case by case consideration under Regulations 21 and 36 to inform whether the power to dispense with the ESA50 should be exercised, iv) the position adopted before us was that Atos will request an ESA50 in every case which indicates that FME will not (or will only rarely) be sought as a matter of discretion before that request is made. And this means that the position is that FME will in effect only be sought before the ESA50 is requested in cases where there is strong probability that Support Group criteria will be established and when the claimant has an appointee, v) but a flag that a claimant asserts that he or she has MHPs will be entered on the system, and we understand that this will generally be done before the ESA50 is requested, vi) FME is not to be sought before or after the ESA50 is requested and supplied to confirm that an examination is required, vii) FME is not to be sought before or after the ESA50 is requested and supplied to obtain further information to assist the examining HCP, and viii) as a result, it will only be in very few cases that FME will be sought before the face-to-face examination / assessment with an HCP takes place, and even in cases when it is (or it is volunteered) the face-to-face examination / assessment will take place in most of them.[51]It may be that all of the above do not apply in cases when Regulations 20, 25, 26 29 and 35 apply and in re-referral and re-assessment cases and, if that is the case, we are unclear as to the extent of the departure in such cases. But, whatever the position relating to them, the evidence and common ground before us is that before the first two steps in the process (after an assessment of a claim has been initiated) namely: i) the request that an ESA50 be completed, and ii) the claimant is called for a face-to-face examination it is only in a few cases that FME will be requested.[52]The consequence of this is that the relevant decision-maker (and the practice is that this will be the HCP) will only be able to take FME into account when making these two decisions and at the face-to-face examination / assessment: i) if, by then it has been volunteered, or ii) the claim is one of the few in which it will be requested by or on behalf of the DWP.[53]So, in most claims the ways in which the recognised unique vulnerabilities and difficulties of claimants with MHPs are addressed, under the present practice, relate to(a) a failure to attend and attendance at the face-to-face assessment (see paragraphs 45 and 46 above), and(b) a checking process if a claim is refused (see paragraph 47 above). And, those aspects of the present practice do not include provisions as to when FME should be sought, although we understand that as a matter of discretion it might be sought at those stages in a few cases.[54]In its evidence the DWP stated that data for October 2012 shows that where a paper based assessment was made without meeting the claimant face-to-face FME was requested in around 27% of new claims and 42% of IB re-assessment cases. We assume that those figures relate only to claimants with MHPs, but it is not obvious how they fit with the practice as described to us and when and why such FME was requested in such claims. The relevance of these percentages was not explained and it needs to be remembered that this data relates only to cases where no face-to-face assessment was requested, that it does not quantify the number of such cases and that the accepted position before us (confirmed in the DWP’s additional evidence) was that the current practice does not allow for FME to be sought to enable a claimant to be put into the WRAG on the basis of the descriptors without a face-to-face assessment. From that it follows that these percentages relate to only some, and it seems only a small part, of the claims we are concerned with and do not undermine our summary of the present position. Appeals to the First-tier Tribunal (“FtT”)[55]If a DWP decision-maker decides that the claimant does not have limited capability for work or limited capability for work-related activity, the unsuccessful claimant has a right to appeal to the FtT. The proceedings are by way of a full rehearing on issues of fact and law, and the FtT can make any decision that was open to the decision-maker. The tribunal is a specialist body made up of a judge and a medically qualified member and it decides the claim on the basis of its findings of fact based on the evidence before it and its application of the statutory provisions.[56]So, the appeal to the FtT is a new and free standing fact finding and decision-making process, and its decision on entitlement is only appealable on a point of law. Often the FtT will hear evidence from and will question the claimant and, as a result, will have additional evidence before it and the advantage of hearing evidence from the claimant and a member of the claimant’s family. The well developed case law relating to the duties of First-tier Tribunals in the Social Entitlement Chamber places upon them an extensive investigatory duty which is now buttressed by the overriding objective in Rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 to deal with cases fairly and justly. In practice, this means that the FtT may call for FME whether or not either of the parties have submitted such evidence. By the time an appeal reaches the FtT, the experience of the Upper Tribunal judges on this tribunal is that claimants – whether or not they have MHPs – will regularly have produced FME or medically related evidence. The reports/ reviews of Professor Harrington[57]It is not appropriate for us to try and give a summary of these reports and we must, of necessity, confine ourselves to those parts of the reports which are of most relevance to these proceedings. We are conscious that what we say about them "cherry picks" from parts of the reports which merit reading as a whole.[58]Professor Harrington is a leading occupational health specialist. He was appointed to provide the first three reports required under s. 10 of the WCA 2007 and, in doing so, he has been assisted by an Independent Scrutiny Group appointed by the SSWP. His reports are based on reviews that have taken into account responses from a wide range of sources, and from conducting meetings and seminars with a number of stakeholders. The Interveners have taken part in his reviews.[59]In his first report, published in November 2010, he concluded that the system was not working as well as it should but that it was not beyond repair. Both parties referred us to Chapter 5 of this report. In paragraphs 33 to 35, he noted that concerns had been raised about the assessment by HCPs of claimants with MHPs. At paragraph 35 he said:
“ In part these concerns reflect the difference between a medical examination, which focuses on diagnosis, and the Atos assessment, which looks at a person's functional capability. With thorough disability assessment training and a focus on the individual rather than the computer, Atos HCPs should be able to undertake most assessments to a high standard. The review also recognises that some conditions are more difficult to assess, due to their subjectivity and so makes recommendations to enable mental, cognitive and intellectual conditions to be assessed more accurately. ”
[60]In Chapter 6 at paragraph 16, to which we have already alluded, he said:
“While the onus is and must be on the claimant to provide information to support their claim, this is not always clear to claimants. There is no doubt that collecting this information can place extra burdens on the individuals. However, it is difficult to see any justification or method of operating such a system without requiring the majority of claimants to be their own advocates.”
[61]The first report made a number of recommendations including ones which are reflected in the support given by Jobcentres to claimants, and in the free text section of the ESA50 referred to respectively in paragraphs 36(i) and 32 above. Professor Harrington also recommended that Atos provides mental, intellectual and cognitive champions in each medical assessment centre, but in his second report he recognised that the regional approach adopted by the DWP to his recommendation was a more efficient use of scarce resources which still delivered the desired result. By the time of the Government's response to his second report there were 60 mental function champions trained and in place, and in that response the Government stated that they were having a positive impact, with the champions receiving an average of 10 calls per day, and providing coaching and assistance with training as well as informal support within the assessment centres. HCPs have welcomed the introduction of such champions.[62]In his first report, Professor Harrington also recommended that: Decision-makers receive training so that they can give appropriate weight to additional evidence. Decision-makers are able to seek appropriate chosen healthcare professional advice to provide a view on the accuracy of the report if required.[63]In his second report, published in November 2011, Professor Harrington noted that the DWP moved swiftly to implement the recommendations in his first report by making appropriate policy changes.[64]The Applicants submit that the DWP has not correctly interpreted the second recommendation cited in the preceding paragraph (“the Additional Advice Recommendation”). They argue that, by that recommendation, Professor Harrington was indicating that advice should be sought from healthcare professionals nominated by, and who had specific knowledge of, the claimant, and not from other healthcare professionals. They referred to the executive summary in Professor Harrington's third report in which he says:
"all the recommendations made so far have been accepted by the Government. Not all have been fully acted upon yet."
[65]Whether or not the Additional Advice Recommendation has, or has not, been properly understood or fully implemented, it is clear that the general tenor of Professor Harrington's reports is that the DWP has accepted and acted upon his recommendations and that by so doing the process and the WCA has noticeably changed for the better. For example, in respect of the implementation of the year one and year two recommendations he also said, in his third report that: The WCA continues to be portrayed in an extremely negative light, often fuelled by adverse media coverage, representative groups and political points scoring. Whilst the Review continues to hear examples of individuals who have been poorly treated by the WCA process, DWP can be reasonably pleased with what they have achieved. Some recognition of the considerable work to date would give a more balanced picture and DWP needs to be more proactive in communicating this .[66]In light of the Government’s response to Professor Harrington’s third report, in our view, it is not necessary or appropriate for us to examine the precise extent of the implementation of the Additional Advice Recommendation, as whatever the answer, it has now been overtaken by a recommendation made in the third report, where in his discussion of "any additional information supplied in support of the claim, whether it comes from a medical practitioner, professional allied to medicine, or someone else who knows the claimant and how their conditions affect them” he signposts a significant change to the approach that the onus should be on claimants to provide information to support their claims by saying: Discussion 36 . The year one Review said that: "the onus is and must be on the claimant is to provide information to support their claim it is difficult to see any justification or method of operating such a system without requiring the majority of claimants to be their own advocates".37. During the year two Review it became clear that the Decision-makers were seeking to gather increased amounts of further documentary evidence as recommended in year one. This was seen as positive progress whilst also recognising that, in an ideal world, further documentary evidence will be provided at an earlier point in the claim process. Concerns remained that further documentary evidence was often only being provided as part of the reconsideration process.38. However, some charities have suggested that the collection of further documentary evidence should be a mandatory duty on either Atos or on the Decision-maker. They have argued that claimants cannot, for a number of reasons, collect this information themselves and therefore the Department should take responsibility for doing so.39. This view has been widely canvassed over the course of this year and put to charities, representative and disability groups, politicians, senior officials in DWP and, most importantly, to the Decision-makers during this year's unannounced visits to Benefit Delivery Centres.40. A consensus has clearly emerged. There should be a requirement in every claim to consider seeking further documentary evidence and, if that evidence is not sought, that the decision not to should be justified. Recommendation Based on this, I recommend that: Decision-makers should actively consider the need to seek further documentary evidence in every claimant’s case. The final decision must be justified where this is not sought.41. Given the unique circumstances of their condition, particular care should be taken when the claimant has a mental, intellectual or cognitive condition as these individuals may lack insight into the effects of their condition on their day-to-day functioning.[67]We will refer to this recommendation as the “Evidence Seeking Recommendation”.[68]Professor Harrington’s Evidence Seeking Recommendation falls short of the adjustment put forward by the Applicants and Interveners. It is carefully worded to avoid mandatory evidence seeking in any particular case or class of cases. Obvious reasons for stopping short of a recommendation that the DWP actively seek evidence from a healthcare professional chosen by the claimant are the increased burdens such a policy would place, in particular, on GPs, and the concern expressed on behalf of the medical profession by the British Medical Association that evidence seeking of this sort could interfere with the doctor/patient relationship. Professor Harrington records later in the same chapter: The British Medical Association, for example, have made it very clear that they do not want to become "guardians of the benefit system”. "Work Capability Assessments are carried out by health care professionals working directly for Atos Healthcare who are trained specifically to undertake this type of work. The claimant’s GP also has a specific role in the process, to provide a factual report based on information contained within the patient's medical record. It is not, however, the GP’s role to provide any opinion on the patient's capability to work as part of this process. It is vital that these two roles are kept separate and that GPs are not asked to provide opinion on their patient for the purposes of receiving Employment and Support Allowance (ESA); doing so could damage the doctor-patient relationship .[69]In response to Professor Harrington's third report, the Government has said this:45. Recommendation One is that Decision-makers should actively consider the need to seek further documentary evidence in every claimant’s case. The final decision must be justified if this is not sought . [ this is the Evidence Seeking Recommendation ]. This builds on the year one recommendation for Decision-makers to seek appropriate chosen healthcare professional’s advice [ this is the Additional Advice Recommendation ] to ensure all relevant information is available when coming to a decision on eligibility for benefit. Professor Harrington raised concerns in the review that further evidence was often only provided during the reconsideration process and this is a suggestion to help ensure more relevant information is available early in the process.46. The process could further clarify the need to seek more documentary evidence where it will be relevant, but we are mindful of Prof Harrington’s stated view that such evidence should be provided at the earliest opportunity.47. We would anticipate that the best way of implementing the intent behind this recommendation would be to introduce an additional element in Atos’ process. This would take the form of making explicit the requirement for Healthcare professionals to actively consider further evidence and to include a justification where they decide that further evidence would not be necessary. Decision-makers would then ensure that this justification has been provided, and where they question or disagree with a justification, would have the option to request Atos to go back and gather the further evidence that may be required.48. As with any potential changes in our processes, we need to ensure that the additional resources required in terms of administration and processing times is balanced by a demonstrable impact on the quality of decision-making and customer experience, in order to maintain an appropriate emphasis on the value for money of the process. We will therefore work on reviewing the implications of any such changes set out above before we can be clear on whether to implement. On that basis the Department supports the intent of the recommendation and provisionally accepts the desirability of making appropriate changes, subject to the caveat that we must first work to ensure it can be implemented in a cost-effective fashion before taking a final decision.[70]In our view, the above citations from Professor Harrington’s third report show that: i) Professor Harrington has concluded that there should be a change from the earlier approach that the onus should be on the claimant to provide all necessary and appropriate information. ii) He considered, but effectively rejected, the adjustment sought by the Applicants before making the Evidence Seeking Recommendation. iii) The Evidence Seeking Recommendation is different to the adjustment sought by the Applicants and is applicable to claimants who have and do not have MHPs. iv) Paragraph 37 of the third report only fits with the evidence summarised above on the approach within the present process in respect of FME, if it is remembered that it applies to other types of evidence. v) The consideration of whether it is necessary to seek further documentary evidence, including FME should start at an early stage of the process and continue throughout. vi) The further documentary evidence referred to covers evidence relating to the claimant from people who know him or her and/or his or her relevant history, and so FME from treating doctors and mental health services who have worked with the claimant. vii) Literally, the justification for not seeking such evidence must be given at the time of the final decision, rather than when decisions are made during the process to continue (e.g. to call for an ESA50 or for a face-to-face examination) without seeking further documentary evidence (including FME), but viii) that justification must be on the basis that the DWP decision-maker is of the view that his conclusion on entitlement and the recommendation of the Atos HCP have been made on a properly informed basis. And so, it would follow that the decision-maker has to justify a conclusion that the additional documentary evidence would not provide useful information to the decision- making process and so “added value” to it, and so to the decisions and recommendations made during it as opposed to just the final decision on entitlement.[71]The Government’s response to the Evidence Seeking Recommendation: i) Has at least the potential for continuing the dispute concerning the intention underlying the Additional Advice Recommendation and thus the intent that underlies both recommendations, and whether it includes further documentary evidence from treating doctors and mental health services who have worked with the claimant. (In our view, as a matter of substance and intention the Evidence Seeking Recommendation does cover this and is not restricted to evidence from independent sources.) ii) Suggests that adoption of the Evidence Seeking Recommendation would be best achieved by an introduction of an additional element into the Atos process (which recognises the points in paragraph 70(vii) and (viii) above) and so, as a change to the present practice, a stage would be added to the present practice of Atos which would require HCPs to consider seeking further documentary evidence (including FME) and, in cases when they do not do so, to include in their report their reasons for not doing so, iii) Recognises that the further documentary evidence should be sought early in the process but does not identify when in the Atos process this would be, and so whether it would be before or after the ESA50 is completed or the claimant attends a face-to-face interview. But, given the medical nature of the issue, if the matter is to be considered in the Atos process this must be done before the HCP makes his or her recommendation.[72]In our view it is plain that, if the Evidence Seeking Recommendation, as we understand it, was accepted and implemented in respect of the obtaining of FME for claimants with MHPs alone, or for all claimants, within the Atos process it would result in significant changes being made to the present approach to seeking FME.[73]The essential change would be that the HCP would have to consider in every claim by, or assessment concerning, a claimant with MHPs whether to seek FME and an application of the timing suggested by Professor Harrington would mean that the HCP did this, and reviewed it, from the start to the end of that process and so both before and after the decision that the clamant should be required to complete an ESA50 is made. And so, if it was so implemented, the Evidence Seeking Recommendation would go a long way towards meeting the adjustment sought by the Applicants (i.e. that FME would be called for in every claim where the claimant has a MHP) and would create something significantly different from the present practice in respect of seeking FME, in respect of claimants with MHPs.[74]At the hearing, we were unclear on(a) whether the SSWP, and so the Government, share our view of the intent and meaning of the Additional Evidence Recommendation, and(b) what steps the DWP is proposing to take pursuant to the caveat in paragraph 48 of the Government’s response. Our confusion on this was added to by the SSWP’s response in evidence to the adjustment sought by the Applicants which was as follows: The process was changed so that HCPs could issue requests to GPs where relevant and appropriate, so as to reduce the bureaucratic burden on doctors. The DWP makes guidance available to assist GPs, but the system as it currently works still places a significant burden on them to provide evidence. It would be unreasonable to increase this burden without evidence to demonstrate that a blanket requirement would significantly aid the process by providing relevant additional material. Data for October to December 2011, the latest data currently available, shows that where FME was requested, it was eventually provided only in around 71% of cases overall. Moreover, even when FME was provided upon request, it was provided within the requested two-week period in only some 37% of cases. It is likely that if request for FME were increased without being targeted by the professional expertise of HCPs to cases where they are most likely to add relevant new information, there would be an increase in the proportion of cases where FME is not provided in response to an Atos request. Moreover, by asking GPs to produce more evidence as a matter of course, without consideration of the facts of the particular case, it may reasonably be expected that the additional workload burden would lead to the quality of completed forms being lower. The financial impact of requiring FME as a matter of course in all cases involving MHPs is difficult to estimate without a complex modelling exercise, but in my judgment, if this were required, processing times and administration costs would substantially increase. If, as I believe to be the case, FME is already being requested in cases where it is appropriate, I do not see that these additional costs and burdens could be justified. As appears from this, without carrying out work similar to that referred to in the caveat to his response to the Additional Evidence Recommendation, the SSWP felt able to make the point that he did not consider that the costs involved in evaluating the adjustment sought by the Applicants were justified and to reject it outright. Our understanding of that evidence, and of the SSWP’s submissions relating to it, is that one of the reasons for this outright rejection of a consideration of what was being advanced by the Applicants was the assertion that “FME is being sought in cases where it is appropriate.”[75]We were mindful of the limited time that the SSWP had had to consider the Additional Evidence Recommendation in the context of these proceedings and therefore sought a further statement from the DWP to set out the SSWP’s position on the detail of the work proposed pursuant to the caveat and an explanation of how the view expressed in his present evidence that “FME is already being requested in cases where it is appropriate” fits with the acceptance of the intent of the Additional Evidence Recommendation. The additional evidence[76]As we thought we had made clear at the hearing, before the DWP implements either an adjustment sought by the Applicants or a recommendation such as the Evidence Seeking Recommendation made by Professor Harrington, we understand why for a number of legal, political and pragmatic reasons it would want to carry out an assessment of the implications, practicalities, likely effects and likely costs, of so doing and that would explain the use of the word “provisionally” in the Government’s response we have referred to. We also made it clear that we understood that the Evidence Seeking Recommendation covered evidence other than FME and all claimants and so, adopting a description used in the additional evidence FME for claimants with MHPs is “a subset of further documentary evidence” that may be relevant and so may be sought if the Evidence Seeking Recommendation was implemented.[77]What we sought clarification of, was: i) whether the DWP intended to commit to an assessment of the implementation of the Evidence Seeking Recommendation which would cover the seeking of FME in respect of claims by persons with MHPs (including evidence from treating doctors and mental health services who have worked with the claimant) and thus an assessment of a change or adjustment that would go a long way towards meeting the problems relied on by the Applicants, or ii) whether the DWP was not going to include this in any such assessment for equivalent reasons to those advanced in its evidence and submissions in respect of the adjustment advanced by the Applicants (i.e. it believed that FME was requested where appropriate and the costs of an assessment of what was proposed by the Applicants were not justified).[78]By the additional evidence, the DWP makes it clear that it has started to and will continue with an assessment of the Evidence Seeking Recommendation that will encompass FME in respect of claimants with MHPs. The reasons given relate to the DWP’s commitment to the assessment and implementation of Professor Harrington’s recommendations (and its history relating to this) and do not expressly comment on: i) its previously asserted belief that “FME is already being requested in cases where it is appropriate”, or ii) whether it agrees that such FME includes evidence from treating doctors and mental health services who have worked with the claimant. But, it must follow from the silence on these points and the inclusion of the subset of FME in respect of claimants with MHPs within its assessment of the Evidence Seeking Recommendation that the DWP has not relied on them to limit that assessment. This is so, even though we accept that the further assessment, like the Evidence Seeking Recommendation, is directed to a possible improvement of the whole assessment process rather than any acceptance that there is any duty under the Equality Act 2010 to make reasonable adjustments for claimants with MHPs, as the Applicants assert.[79]In many ways this narrows the issues between the parties by changing the position of the SSWP from one where he asserted that claimants with MHPs were not put at a substantial disadvantage by the present practice (which incorporates improvements effected in response to earlier recommendations of Professor Harrington) and so he would not be assessing the introduction of changes to that practice in connection with obtaining FME from claimants with MHPs, to a position in which he is now carrying out that assessment (amongst other things).[80]But we acknowledge that the Evidence Seeking Recommendation was a late entry into this litigation and that the SSWP: i) maintains his position that the present practice does not found a duty to make reasonable adjustments under the Equality Act 2010 and, to support that, he continues to assert that FME is already being requested in respect of claimants with MHPs where it is appropriate and so, as we understand it ii) his assessment of the Evidence Seeking Recommendation is based only on the continuation of his approach of considering and implementing Professor Harrington’s recommendations with a view to making improvements.[81]We return later to this additional evidence when considering what would be a reasonable adjustment. As appears from that discussion, we consider, that what the DWP is proposing to do falls well short of an investigation and assessment of the Evidence Seeking Recommendation as it applies to obtaining FME from claimants with MHPs. Disability Discrimination under the Equality Act 2010[82]In interpreting and applying the Equality Act 2010 the courts are required to take into account the Equality Act 2010 Code of Practice (“the Code”).[83]By s. 29(6) of the Equality Act 2010, a person may not, in the exercise of a public function, do anything that constitutes discrimination. By s. 21(2) thereof, a person or body(a) (A) discriminates against a disabled person(b) (B) if (A) fails to comply with a duty to make reasonable adjustments in relation to that person. A “duty to make reasonable adjustments” applies to a person who exercises a public function (see s. 29(7) Equality Act 2010).[84]Sections 20 and 21 of the Equality Act 2010 provide, as relevant to the proceedings, as follows: 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. … (13) The applicable Schedule is, in relation to the Part of this Act specified in the first column of the Table, the Schedule specified in the second column. Part of this Act Applicable Schedule Part 3 (services and public functions) Schedule 2 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.[85]The applicable schedule, namely Schedule 2 provides: SCHEDULE 2 Services and public functions: reasonable adjustments 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.(3) --(4) In relation to each requirement, the relevant matter is the provision of the service, or the exercise of the function, by A.(5) Being placed at a substantial disadvantage in relation to the exercise of a function means— (a) if a benefit is or may be conferred in the exercise of the function, being placed at a substantial disadvantage in relation to the conferment of the benefit, or. (b) if a person is or may be subjected to a detriment in the exercise of the function, suffering an unreasonably adverse experience when being subjected to the detriment.(6) (7) If A is a service-provider, nothing in this paragraph requires A to take a step which would fundamentally alter— (a) the nature of the service, or. (b) the nature of A's trade or profession..(8) If A exercises a public function, nothing in this paragraph requires A to take a step which A has no power to take.[86]By s. 212(1) Equality Act 2010 “substantial” is defined as “more than minor or trivial”.[87]Section 136 Equality Act 2010 provides: 136 Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. .(3) But subsection (2) does not apply if A shows that A did not contravene the provision. .(4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule.[88]The Equality Act 2010 also provides: 113 Proceedings(1) Proceedings relating to a contravention of this Act must be brought in accordance with this Part.(2) Subsection (1) does not apply to proceedings under Part 1 of the Equality Act 2006.(3) Subsection (1) does not prevent— (a) a claim for judicial review; (b) proceedings under the Immigration Acts;(4) This section is subject to any express provision of this Act conferring jurisdiction on a court or tribunal.(5) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule. 114(1) A county court or, in Scotland, the sheriff has jurisdiction to determine a claim relating to— (a) contravention of Part 3 (services and public functions); 119 Remedies (1) This section applies if a county court or the sheriff finds that there has been a contravention of a provision referred to in section 114(1). (2) The county court has power to grant any remedy which could be granted by the High Court— (a) in proceedings in tort; (b) on a claim for judicial review. (3) (4) An award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis) .[89]A number of issues arose in respect of the interpretation and application of these provisions of the Equality Act 2010 though there was inevitably some common ground, including the following: i) the SSWP in designing and implementing the process for assessing eligibility for ESA is exercising a public function, ii) the duty to make reasonable adjustments is owed to disabled people generally (see paragraph 7.19 of the Code), iii) the duty to make reasonable adjustments is an anticipatory duty and that is an effect of paragraph 2(2) of Schedule 2 (and see paragraph 7.20-21 of the Code), iv) the duty to make reasonable adjustments is a continuing duty and so it has to be kept under regular review in the light of experience and so, in this respect, it is an evolving duty (see paragraph 7.27 of the Code), v) to pass the burden of proof to the SSWP the Applicants have to establish the existence of a substantial disadvantage (i.e. one that is more than minor or trivial) vi) the Applicants must identify an adjustment that has a real prospect of remedying the established disadvantage they rely on in such detail that it informs the SSWP of the case he has to meet and to engage the question and the passing of the burden on whether that adjustment can reasonably be made, vii) a multi-faceted approach has to be taken to determining whether a proposed or possible adjustment is reasonable. The factors to be taken into account should be ones which will or can remove or ameliorate the substantial disadvantage, or may have a chance of doing so, and may include the cost of the steps to be taken and the proper exercise of the provider’s powers. We agree with this common ground.[90]The statutory test in respect of the duty to make reasonable adjustments (s. 20(3) and Schedule 2) refers to “the relevant matter” which is defined by paragraph 2(5) as “the provision of the service or the exercise of the function”. In our view, in designing and implementing the process for assessing the eligibility of a claimant for ESA, the SSWP is exercising his statutory function of administering the statutory scheme relating to ESA. It is clear, and common ground, that by so doing a benefit is or may be conferred. That benefit is the payment of ESA because the claimant is entitled to it under that statutory scheme.[91]If we re-write s 20(3) to introduce the statutory definitions with reference to this case, it provides that to establish the existence of the first requirement the question has to be asked whether: The present practice of the SSWP in respect of the exercise of his function of designing and implementing the process for assessing eligibility for ESA puts disabled persons generally at a disadvantage that is more than minor or trivial in relation to the conferment of ESA in comparison with persons who are not disabled?[92]The SSWP argued on the basis of paragraphs 2(5) (a) and (b) of Schedule 2 that in this case we are only concerned with the conferment of a benefit and that the different wording of sub-paragraphs (a) and (b) means that the Applicants could not rely on them “suffering an unreasonably adverse experience”. We do not agree, because in our view: i) as a matter of language and purposively: a) the general meaning of “disadvantage” in sub-paragraph (a) should not be cut down, and so the argument that, as Parliament has chosen different words in the two sub-paragraphs, an adverse experience should not be classified as a disadvantage within (a), is unpersuasive, and b) a flaw in the Secretary of State’s argument is that it is based on a false assumption: that cases must be classified as falling either within (a) or (b), ii) there may indeed be some functions that are only designed to confer a benefit and others that are only designed to subject a person to a detriment but that is not so for the sort of cases that we are considering. The ESA assessment process may potentially confer a benefit (continuation of entitlement or transfer to the support group) or subject a person to a detriment (termination of entitlement). Paragraph (5) defines “being placed at a substantial disadvantage” and so is directed to what makes a person’s position worse than it need be relative to the potential outcome. The language chosen falls to be applied whether the relevant outcome is a benefit or a detriment, and a claimant who is ultimately successful can be said to have suffered a detriment by reason of an adverse decision or practice during the decision-making process. The issue is whether what has happened is properly within the ordinary meaning of the language used in the definition and in taking that approach it is a mistake to try to give primacy to the wording of(a) in order to cut down(b) or vice versa. Rather, they should be read and applied collectively. and when this is done an impediment to a claimant for a social security benefit may be a disadvantage or an unreasonably adverse experience according to whether or not the claimant is ultimately successful, and iii) the power to grant damages for injured feelings (see s. 119(4)) indicates that Parliament intended that such damages could arise from an adverse experience during the process of establishing an entitlement to a benefit.[93]The SSWP also argued that the generic claim advanced by the Applicants was not open to them. This argument was based on s. 21(2) and (3), and the points that: i) paragraph 2(2) of Schedule 2 does not apply to sub-section (2), and so s. 21(2) is directed to an individual disabled person, ii) a breach of duty to make a reasonable adjustment is only actionable under s. 21(2) (see s. 21(3)), and iii) the Applicants could not show that the duty to make the alleged reasonable adjustment was breached in their cases because they could not show that it had any impact on the conferment of the benefit on them (i.e. the payment of their entitlement to ESA).[94]In advancing this argument, the example of a duty to make a reasonable adjustment for blind people by allowing access to premises for guide dogs was advanced. And it was submitted that a blind person who did not use a guide dog could not bring proceedings based on the breach of that duty under s. 21(2) because he could not show that the breach of duty related to him because it does not affect him. We agree with the example but not with this argument of the SSWP.[95]In bringing a claim under s. 21 what an individual claimant has to establish is: i) that there is a failure to comply with the first second or third requirements and so a failure to comply with a duty to make reasonable adjustments, and then ii) that there was a breach of that duty in relation to him. This is a two stage process.[96]The first stage involves an application of the test set by s. 20(3). It also has two limbs: i) the first is a comparative test by reference to two classes of persons to establish the existence of a substantial disadvantage (as defined). So it is a generic test, and ii) the second is directed to whether there are steps that it is reasonable to take to avoid that disadvantage, and so a disadvantage founded on a generic test.[97]At the second stage, the test set by s. 21 and the questions it poses are dependent on: i) the establishment, extent and nature of the duty, and therefore of the reasonable adjustments that have to be made by reference to a class or classes of claimants, and ii) the impact on the individual claimant of the failure to have made them. And, that impact is not confined to the decision on entitlement to, or payment of, the relevant benefit.[98]So, in this case, the Applicants have to establish: i) by applying a generic test, that the substantial disadvantage (as defined) exists and that the SSWP has a duty to take reasonable steps to avoid it by putting in place a different practice for obtaining FME (the reasonable adjustment) and if they succeed in doing that, that ii) in their individual cases FME was not sought in accordance with the practice required by that reasonable adjustment. In our view, the first stage looked at as a whole and the first element of the first stage are free standing and could found declaratory relief.[99]So we therefore reject the argument of the SSWP that the Applicants are precluded from advancing their generic claim. Indeed, in our view that is the approach required at the first stage of a claim by an individual.[100]Further, and in any event, this is a claim for judicial review. It was not argued that the Applicants did not have a sufficient interest to bring a claim for judicial review. Also, in our view, although they have not brought proceedings for judicial review the Charity Interveners would be able to establish that they had sufficient interests to do so. But, as they are not individuals, they could not satisfy s. 21(2) and so, if proceedings for judicial review are covered by s.21(3), they would be precluded from bringing such proceedings. Indeed, if the argument of the SSWP is right, a claim for judicial review relating to the duty to make reasonable adjustments could only be brought by an individual who could also rely on s. 21(2). In our view: i) this would be a very strange result and one that would fly in the face of the underlying purpose of the Equality Act 2010 having particular regard to: a) the subject matter of the Equality Act 2010, and b) the exclusion of “a claim for judicial review” from the mandatory terms of s. 113(1) (albeit that the county court is given the power to grant any remedy that the High Court could grant on “a claim for judicial review” (see s. 119(2)), and ii) that view relating to the underlying purpose of the Equality Act 2010 points strongly to the conclusion we have reached. That conclusion is that a claim for judicial review brought by an individual or by a trust, or body in respect of a failure to make reasonable adjustments by a body carrying out a public function is not precluded by s. 21(3) because such a claim is not, or is not to be regarded in the context of the Equality Act 2010 as, an action.[101]As appears later in this judgment when we discuss remedy, at the second stage of a claim by an individual applicant issues may arise as to the date on which the duty to make a reasonable adjustment arises. This is because it may be that there should be further assessment of what changes would be “reasonable”. However, these issues do not preclude a declaration being made that the generic test set by s. 20(3) is satisfied.[102]Also, at the second stage individual applicants could establish a breach of duty on the basis that FME was not sought in accordance with the adjustment that should have been made and could do this without showing that the breach of duty had an effect on the conferment of the benefit (i.e. the establishment of their entitlement to ESA). But, if they cannot show this effect, it may mean that they can claim no, or only reduced damages (e.g. for distress and injured feelings). But, if that was the case, they could still seek a declaration that there was a breach of duty in relation to them as individuals. Equally, the points that under the existing practice FME should have been sought in MM’s case, or should be sought in DM’s case, do not mean that they could not show a breach of duty because they would be relying on the non-existence of a different practice for seeking FME.[103]So, in our view, the arguments of the SSWP in respect of the impact of the way in which FME should have been sought and was sought or obtained in the cases of the two Applicants go to whether, as they assert, persons with MHPs are put at a substantial disadvantage by the existing practice of the SSWP, and do not preclude the Applicants from advancing their generic claims.[104]The parties also differed on the comparisons that fall to be made under s. 20(3) and Schedule 2 and thus in assessing whether a practice of A’s: puts disabled persons generally at a disadvantage that is more than minor or trivial in relation to a relevant matter in comparison with persons who are not disabled.[105]In our view, it was correctly common ground that the Equality Act 2010 was clearly intended to apply to matters that were only available to disabled people and thus to matters that would never concern, be used by, or be the subject of a claim for a benefit by, persons who were not disabled (or not disabled in the relevant way). One of the purposes of the Equality Act 2010 is to remove, as far as reasonably possible, the impediments experienced by those with disabilities in accessing public functions. This purpose would be thwarted if the Act required comparison only with persons who have no disabilities and who would, therefore, not properly seek to access the public function.[106]Further, in our view, it was correctly common ground that the statutory phrase “disabled persons generally” introduced into the section by paragraph 2(2) of Schedule 2 does not mean that the impact of a practice on a class of disabled people (e.g. blind or deaf people and here people with MHPs) cannot be taken into account. If this was not so, an obvious underlying purpose of the Equality Act 2010 to cater for, and to put in place a duty to make differing reasonable adjustments for, people suffering from different physical and mental disablements would be thwarted. So, it seems to us that for the purposes of s. 20(3) and paragraph 2(2) of Schedule 2 “disabled persons” has to be so interpreted and defined, and that this can be done, and generally will have to be done, by reference to a type or types of disablement.[107]On that basis, in our view, it is natural to read the statutory phrase “persons who are not disabled” to include “persons who are not so disabled” and so to cover both “persons who are not disabled or are not so disabled”. Statistics[108]In their claim form and opening submissions the Applicants placed considerable weight on the statistics concerning the percentage success rate of appeals to the FtT. By the end of the hearing, in our view correctly, their counsel resiled from that position. The SSWP made a number of points as to why the Applicants were wrong to regard the statistics as a striking piece of evidence and to place such weight on them. But, then inconsistently the SSWP sought to rely on them to found arguments relating to what he asserted was the generalised and generic evidence of the Charity Interveners and to demonstrate that claimants with MHPs were not put at a substantial disadvantage when compared with other claimants (i.e. those who do not have MHPs).[109]In summary, the statistics relied on were that: i) Of the 168,000 ESA appeals handled in 2011/12 122,500 (or 73%) were dealt with by way of an oral hearing at the First-tier Tribunal. The remainder were determined on the papers. ii) In 2011/12, 39% of ESA appeals that were dealt with at a tribunal hearing were successful. This increased to 42% in the first quarter of 2012/13. iii) Between October 2008 and August 2011, the DWP made over 1.1 million decisions on new ESA claims following a WCA. 687,000 claimants (approximately 60% of 1.1m) were found "fit for work". Some 272,000 appeals had been heard against those "fit for work" decisions by July 2012, with the tribunal overturning the DWP decision in 102,000 cases (15% of the 687,000 "fit to work" decisions made). iv) Data from all claims between October 2008 and May 2011 shows that, closely in line with the average success rate of 38%, 41% of appeals brought by a claimant with a MHP were successful. By contrast, 45% of appeals were successful in cases where the claimant had cancer and 48% in cases involving diseases of the nervous system.[110]At first sight these success rates on appeals read alone, or in the context of the total number of decisions made by the DWP, can be said to support the view that the success rate is high and that this indicates that something is wrong with the process and claimants are put at a disadvantage by it. But, in our view, the SSWP was right when rebutting this approach by the Applicants to point out that the significance of these figures should not be overstated. Indeed, we go further and hold that without further analysis they are of no real relevance.[111]The evidence as to why appeals succeed is limited and is based on a pilot study with FtT judges. In our view, that limited evidence supports the conclusion one would expect, namely that the nature of the relevant tests and an appeal procedure under which the FtT makes its own decisions on the facts means that there is ample scope for two decision-makers applying the correct legal approach to reach different decisions even if, at the appeal stage, there is no additional evidence. This prospect is increased when it is remembered that claimants and others can, and often do, make different impressions on different assessors and decision-makers. It seems to us that when this is taken into account it cannot be said that the success rates are high and so that they demonstrate generic or specific failings in the DWP decision-making process. Indeed, it might be said that they indicate that in the application of the tests that involve value judgments, the overall system provides appropriate safeguards, checks and balances in the determination of a claimant’s entitlement to ESA.[112]A focus of the legal argument on the comparisons to be made was on the application of the statistics. As we have set out, our conclusion on those arguments is that the comparison can be with persons who are not disabled or not so disabled. The latter is the comparison that the SSWP seeks to make in reliance on the statistics.[113]We do not accept the SSWP’s argument that the statistics show or support the view that claimants with MHPs are not put at a substantial (more than minor or trivial) disadvantage because, applying that comparison, the successful appeal rates are similar and so the present practice(i) treats both classes equally well or badly, and so(ii) does not disadvantage either. The essential reason for this is that the reasons for success are not known and they may relate to different aspects of the practice relating to the application of the statutory tests and the factual and value judgments they involve. This means that if the statistics could be further analysed they would still show that the success rate for different classes of claimants are effectively the same, but that this result is based on different aspects of the practice relating to the assessment of entitlement for different classes. We have mentioned earlier (paragraph 56 above) that by the time an appeal reaches the FtT, the experience of the Upper Tribunal judges on this tribunal is that claimants – whether or not they have MHPs – will regularly have produced FME or medically related evidence but this experience does not provide a base for differentiating between claimants with and without MHPs or between the impact of FME as between classes of claim or in respect of claimants with different MHPs.[114]So, in our view, the statistics and the limited evidence relating to why appeals were allowed, simply do not provide material upon which the impact on the success rate of appeals by claimants with MHPs and that for other claimants, of the present practice relating to obtaining FME and any change thereto can sensibly be based. The same can be said if the comparison is with persons who do not suffer from any disability and in that comparison there would be the added problem that the comparators could never properly make a claim for ESA.[115]So, in our view, any reliance by the parties on the statistics leads to speculation and so none of their cases are advanced by them. The Applicants’ evidence and evidence relating to other individual claimants[116]This evidence from the Applicants and other claimants was advanced to support the view that the present practice relating to obtaining FME for claimants with MHPs puts them at a disadvantage. It was not disputed that that is what the witnesses believed but the SSWP put in evidence from the relevant DWP decision-makers and an analysis of their cases to show that they do not show that the approach taken to obtaining FME had any impact on the decisions that were made on entitlement.[117]In respect of the Applicants the point was correctly made that under the present practice FME should have been sought in MM’s case, and should be sought in DM’s case. Subject to the point that the adjustment proposed by the Applicants would have prevented that error (or reduced the likelihood that it would be made) in MM’s case, and will avoid it (or make it less likely) in DM’s case, it follows that any disadvantage flowing from that mistake relates to the application of the present practice or system rather than a defect in the practice or system itself. Also, it was argued by the SSWP that these cases, and those of the other claimants relied on, do not establish that the approach taken to FME in them was an effective cause of problems in, or of the claimants’ dissatisfaction with, the decision-making process, and decisions made during it.[118]There is force in the individual analyses advanced by the SSWP but in our view they do not undermine the conclusions reached on a general approach (to which we turn below) or themselves found the view in the individual cases that if FME had been sought in accordance the adjustment suggested by the Applicants this would not have made a difference that removed a substantial disadvantage (as defined).[119]Inevitably this analysis and evidence is based in part on hypothesis (i.e. what would have happened or what would I have done) if FME had been sought at an early stage. And to properly assess what would have happened the range of possibilities as to what the FME might have said has to be factored in. Albeit that the actual DWP decision-makers have given evidence on what they think would have happened we are not persuaded that their evidence and the analysis advanced by the SSWP rules out (on a balance of probabilities) that if helpful and informative FME had been obtained, at an early stage, it would not have made a difference to the decisions made, or to the decision-making process, or to the experience (and reaction) thereto of the claimants that was more than minimal or trivial. The last of those possibilities is based on our rejection of the SSWP’s argument on the meaning and application of paragraph 2(5)(a) and (b) of Schedule 2 of the Equality Act 2010 (see paragraph 92 above) and was not the focus of the SSWP’s evidence and analysis, or that of the claimants.[120]The statistics are based on a much larger amount of claims but our views on this evidence put forward by the Applicants and the DWP’s response thereto apply to reduce even further the assistance that, for present purposes, can be gained from the statistics.[121]However, we accept that the evidence and analysis relied on by the SSWP does show that the Applicants have not provided specific examples of cases in which it is established (on the balance of probabilities) that the present practice relating to obtaining FME from claimants with MHPs has put that claimant at a substantial disadvantage (as defined). The evidence put in by the Charity Interveners[122]This consists of witness statements and reports from policy makers and medical professionals, together with exhibits. The evidence put in by the Applicants contains similar assertions from the viewpoints of individual claimants.[123]The SSWP asserts that the evidence of the Charity Interveners only supports a series of generic broad and generalised assertions as to difficulties that it is alleged claimants with MHPs suffer, or might suffer, and that the SSWP cannot respond to that evidence in the absence of proper information on the particular cases relied on (details or examples of which, so far as we know, were not sought by the SSWP). We do not agree because: i) We have rejected the SSWP’s argument that a generic claim advanced by the Applicants was not open to them (or the Interveners). Indeed, in our view, s. 20(3) sets a generic test (see paragraphs 93 to 100 above). ii) No sub-division or re-categorisation of the class chosen, namely claimants with MHPs, was suggested. iii) The witnesses have considerable and relevant experience, and their statements and reports are based on that experience and are well reasoned. iv) Although this evidence goes further than, it accords with, the recognition contained in Professor Harrington’s reports and the SSWP’s evidence in this case, of specific vulnerabilities and difficulties experienced by claimants with MHPs because of their MHPs in the present decision-making and assessment process, and what any reasonably informed person would expect. v) The SSWP’s analysis of the examples advanced by the Applicants of the impact that FME would have had in those cases does not undermine the reasoning based on relevant knowledge and experience and so the conclusions reached and asserted in the Charity Interveners’ evidence. vi) It would have been open to the SSWP to seek to challenge such evidence with evidence from other appropriately qualified persons with or without reference to detailed case studies, but he chose not to do so.[124]In our judgment, the Charity Interveners’ evidence, properly focuses on a relevant issue, namely the effects of MHPs generally, and does so, on the basis of the wide and appropriately varied experience and expertise of the witnesses. Those effects identify the problems that claimants with MHPs experience, as a class. We acknowledge that the class chosen is a wide one and that many persons with MHPs do not make claims for ESA and would not be entitled to it if they did. We return to the impact of the class being a wide one. But, at this stage, its primary relevance is that(a) the identification of problems by reference to it does not mean that all claimants with MHPs have those problems, and(b) any individual member of the class may have one or more of those problems.[125]On that generic approach, in our judgment, the Charity Interveners’ evidence establishes and we find that, as they and the Applicants assert: i) in terms of filling out a form, seeking additional evidence and answering questions, claimants with MHPs as a class have the following problems and difficulties because of their MHPs, some of which overlap: a) insufficient appreciation of their condition to answer questions on the ESA50 correctly without help, b) failure to self-report because of lack of insight into their condition, c) inability to self-report because of difficulties with social interaction and expression, d) inability to self-report because they are confused by their symptoms, e) inability because of their condition to describe its effects properly, f) difficulty in concentrating and in understanding the questions asked, g) unwillingness to self-report because of shame or fear of discrimination, h) failure to understand the need for additional evidence because of cognitive difficulties, i) problems with self-motivation because of anxiety and depression which may prevent them approaching professionals for help and assistance, j) false expectation that conditions will be understood without them needing additional help, and k) lack of understanding that professionals named in the form will not automatically be contacted in the assessment process. ii) in terms of further aspects of the process for the determination of their entitlement to ESA, claimants with MHPs as a class have or have to face the following problems and difficulties because of their MHPs: a) particular conditions (e.g. agoraphobia and panic attacks and autism spectrum disorder) make attending and/or travelling to a face-to-face assessment difficult, b) finding the process itself intimidating and stressful, and, in some cases, that having a long-lasting negative effect on their condition, c) a desire to understate conditions, d) the masking of health problems as physical problems, e) dealing with assessors who have little or no experience of mental health problems, f) the difficulties of identifying many symptoms of a condition and its impact on what a person needs without proper training and knowledge, g) the lack of time during a short assessment to identify a person's needs, h) fluctuation in condition, and i) scepticism about the condition. The first statutory question posed by s. 20(3) - are claimants with MHPs presently placed at a substantial disadvantage?[126]As we have acknowledged earlier, the SSWP asserts that the present practice (which incorporates improvements effected in response to earlier recommendations of Professor Harrington) caters adequately for claimants with MHPs and so does not put them at a substantial disadvantage. So starting points for a consideration of whether such claimants are presently placed at a substantial disadvantage are: i) the present practice (see paragraphs 40 to 54 above), and ii) the point that the Applicants have not provided specific examples of cases in which it is established (on the balance of probabilities) that the present practice relating to obtaining FME from claimants with MHPs has put such a claimant at a substantial disadvantage (see paragraphs 116 to 121 above) and so the point that the Applicants base their argument on iii) the problems and difficulties (“the Difficulties”) established by the evidence of the Charity Interveners (and the Applicants’ evidence to the same effect) set out in paragraph 125 above.[127]In our judgment, the existence of the Difficulties (established and described by reference to a wide class) does not of itself answer the relevant statutory questions. Rather, in the absence of direct evidence based on particular cases, the Difficulties are factors to be taken into account in, and so are building blocks in, the reasoning process to determine whether the generic test posed by s. 20(3) is satisfied.[128]The Difficulties are specifically linked to the definition of the class (i.e. claimants with MHPs) as they arise because of MHPs. As we have mentioned, no point was taken that this class was too vague or too wide or had too many sub-categories to be appropriate. And it would have been difficult for the SSWP, and the other parties, to take this point given its use in the present guidance and practice of the DWP and by Professor Harrington.[129]From the starting points of that definition of the class and the linkage of the Difficulties to it, it does not matter whether the effects of the Difficulties on the class of claimants with MHPs is compared with the position of the class of claimants who are not so disabled (and so do not have MHPs) or persons who are not disabled (and so could not properly claim ESA). This is because those two classes of persons do not have MHPs and so difficulties caused by them.[130]Other claimants, who are not so disabled and so do not have MHPs, may or may not have similar difficulties and problems but if, and to the extent that, they do their cause will be different and there is no evidence before us that they have the same or similar problems to any significant degree. Further, the utility and effect of FME in respect of a class of claimants without MHPs give rise to a different overall question and different issues relating to improvements in decision-making that might arise from changes in the approach taken to obtaining FME, even though the analysis of that question and those issues would overlap with that taken below.[131]Logically, the first statutory question (namely whether the relevant individual, or as here class of persons, are put at substantial disadvantage (as defined) by the relevant practice) is approached by identifying the effects or likely effects of the problems suffered by that person or class of persons on the ways in which the practice operates. Applying that approach here it gives rise to the following question, in respect of claimants with MHPs (and so a class of claimants who have the Difficulties because of their MHPs), namely: Do the Difficulties mean that they (as a class) are put at a substantial disadvantage (as defined) by the present practice of the DWP towards obtaining FME in the assessment of their entitlement to ESA? And, writing in the statutory definitions, as we have interpreted them this question reads: Do the Difficulties mean that they (as a class):(i) are placed at a disadvantage that is more than minor or trivial in relation to the conferment of a benefit, or(ii) suffer an unreasonably adverse experience when being subjected to a detriment (e.g. by reasons of an adverse decision or practice during the decision-making process) by the present practice of the DWP towards obtaining FME in the assessment of their entitlement to ESA?[132]In our view the answer to this question is “yes”. Our reasons for this conclusion follow.[133]During the hearing we posed the general question whether accurate and appropriately directed FME would be likely to add value to the decision-making process concerning claimants with MHPs by making the Atos HCP and the DWP decision-maker better informed. We think that on a generic approach by reference to claimants who have MHPs the answer must be “yes” although we acknowledge that in some cases it would only be confirmatory of a view already formed by an HCP or DWP decision-maker, or for other reasons of little or no added value. We return to this qualification when considering what steps it is reasonable for the SSWP to take.[134]The essential reason for this conclusion on the likely effect of FME is that the nature of the Difficulties and their cause are such that, in our view, it is plain that FME would add value to the decision-making process on many claims by claimants who have those difficulties, because properly directed FME would provide information that would remove or reduce the impact of the Difficulties. For example, it is likely that this would be so in many cases where, as the Applicants assert, a claimant with MHPs: i) has difficulties, or particular difficulties with insight into, and self-reporting his or her condition, ii) suffers from complex, fluctuating and often hidden problems that have an impact on his or her capability for work, iii) has particular vulnerability in respect of the stresses involved in getting to, and during, a face-to-face assessment, or iv) has an inability to understand the need for medical evidence.[135]The next question is therefore whether under the present practice that value added is appropriately provided as the SSWP asserts. In our view, the answer is that it is not.[136]The present practice is summarised at paragraphs 48 to 54 above. As appears therefrom, it is only in a very few cases that it provides for FME to be obtained before: i) the claimant is required to complete an ESA50, and ii) the claimant is required to attend a face-to-face examination / assessment. And, after those stages, the steps taken because of the recognition that claimants with MHPs have vulnerabilities and problems do not include a practice as to when FME should be sought, although we understand that, as a matter of discretion, it might be sought at those stages in a few cases.[137]The Difficulties have an obvious connection with the first two stages of the process and, if they are not addressed and thereby avoided or reduced at those stages, they will continue to have an impact. They also have a particular impact on the non-functional tests and the present practice does not address how and when FME should be sought in those cases, which we accept are likely to be only a small number in percentage terms.[138]In our judgment, the present practice relating to FME, has the result that in a significant number of claims by claimants with MHPs the existence and impact of the Difficulties result in those claimants, and thus that class of claimants, being placed at a disadvantage that is more than minor or trivial and/or suffering an unreasonably adverse experience: i) by being required to complete an ESA50 when this is not needed, ii) in the completion of the ESA50, iii) by being required to attend a face-to-face examination / assessment when this is not needed, iv) during a face-to-face examination / assessment, and v) during the final decision-making process and the communication of that decision by the DWP decision-maker.[139]In our judgment, if appropriately directed FME was made available earlier in the decision-making process in respect of claims by claimants with MHPs, it is likely that, in a significant number of such claims: i) the HCP would be better informed before requiring an ESA50 and at the face-to-face to examination / assessment, with the result that the decision-making process in respect of the class, and the way in which it is perceived by claimants with MHPs as a class, would be improved because the Difficulties would be better addressed and so avoided or reduced, and ii) the DWP decision-maker would also be better informed in his or her assessment of the claim, the recommendations of the Atos HCP and his or her approach to the acknowledged vulnerabilities and difficulties of claimants with MHPs as a class and so individuals within it.[140]The point made earlier that the experience of the two Upper Tribunal judges on this tribunal that FME is regularly produced for an appeal to the FtT (whether or not the claimant has MHPs) points to the conclusion that it can add value to the decision-making process at each of its stages and how that process is perceived. Indeed, it seems to us that this is obvious in respect of many claims by persons with MHPs when the grounds for entitlement to ESA and the Difficulties are remembered.[141]We do not accept the argument advanced by the SSWP that this is not so because the main tests for ESA are functional. Of course they are but, particularly where the claimant has MHPs, a full and proper understanding of the condition and the difficulties it gives rise to plainly informs how the claimant functions. Accordingly, appropriately directed FME will often be important to inform (and in some cases to confirm) views of the HCP and the DWP decision-maker on relevant (and sometimes critical) factors in assessing the claimant’s functional capability. So, we accept the Applicants’ submissions that the dichotomy that the DWP seeks to draw in its evidence between diagnosis and treatment and assessment for ESA and its reliance on it to support the view that FME is appropriately sought under the present practice is unconvincing. The second statutory question posed by s. 20(3) - are there steps that it is reasonable for the SSWP to take to avoid the substantial disadvantage? And the relief to be granted[142]As we have mentioned earlier, it was common ground that a number of factors fall to be taken into account in determining what steps it is reasonable for a provider to take to avoid a substantial disadvantage (see paragraph 89(vii) above).[143]The relief to be granted. We also acknowledge that the court and not the DWP is the ultimate statutory decision-maker under the Equality Act and so the judicial review approach of remitting the decision to the relevant statutory decision-maker is not appropriate.[144]It was argued that, as in a claim in the County Court, on the evidence before us we should make a finding on what the reasonable adjustment should be and order the SSWP to implement it. We accept that we could do this on this claim for judicial review and that in many cases this is what the county court and the judicial review court, as the decision-maker under the Equality Act 2010, can and should do.[145]But, in our judgment, it is also open to the court to adjourn to obtain more evidence to determine what is or is not reasonable and that this may often be the appropriate course for it to take before deciding what steps it should order the provider to take in performance of the statutory duty, to make reasonable adjustments.[146]Further, it seems to us that where, as here, the practice relates to the administration and implementation by a Government Department of a statutory scheme the concept of what is or is not reasonable engages wide ranging issues that introduce the need for a proper assessment of how a substantial disadvantage should be addressed in performance of both the duty under the Equality Act 2010 and the proper exercise of the functions and powers of the Government Department, including the proper expenditure of public money having regard to budgetary resources. The adversarial court process is unlikely to be the most suitable process for performing the relevant assessments and evidence gathering exercises and so it is likely that in many cases this should initially be done by the Government Department in a way that is directed by the court to address the alternative steps that the court has concluded should be further investigated and assessed.[147]Such an assessment might be classified as either: i) a first stage of the steps that it is reasonable for the provider to take in the performance of its duty to make reasonable adjustments, or ii) a part of the court’s process of obtaining evidence that enables it to order, on a properly informed basis and with appropriate particularity, what reasonable steps should have been, or are to be, taken in performance of the duty to make reasonable adjustments. This classification issue may be relevant to the question whether there is or is not an existing breach of duty and/or the amount of any damages claim. It was not raised before us and we express no opinion on it at this stage[148]Reasonable adjustments. By the end of the hearing: i) the Applicants’ primary case remained that FME should always sought at an early stage in the process of the assessment of the entitlement to ESA of claimants with MHPs, and ii) their secondary case was that the Evidence Seeking Recommendation should be applied to claimants with MHPs.[149]The essential difference between the Applicant’s primary case and our understanding of the Evidence Seeking Recommendation (see paragraphs 70( v) to (viii), 72 and 73 above) is that in the latter, if it was not volunteered, FME would only be introduced as a result of a request made by a DWP decision-maker or an Atos HCP but, if no such request was made, this must be justified.[150]The Applicants’ primary submission mirrored the argument that the Charity Interveners had put to Professor Harrington and which he rejected. We accept that we are not in any way bound by that conclusion of Professor Harrington, that we do not know all of his reasoning concerning it and we should decide this issue on the evidence before us (or to be put before us).[151]However, our view accords with that reached by Professor Harrington and it is that at this stage it would not be reasonable to require the SSWP to introduce such a practice.[152]We acknowledge the points that(a) prior to Professor Harrington’s third report the SSWP’s stance was that the DWP was not going to embark on any assessment such as that described in the Government’s response to the Evidence Seeking Recommendation, and(b) the DWP had not put forward with any particularity any cost or practical reason why the adjustment sought by the Applicants could not, or should not, be implemented. But this stance was in large measure based on the SSWP’s stance that there was no substantial disadvantage caused by the present practice, and in our view, it does not obviate the need for us to consider a proper assessment of the impact of implementing a practice that FME is sought in every case before we can determine whether it is reasonable.[153]So, the question for us is whether, at this stage, we should direct that such an assessment is made. We have concluded that we should not.[154]Our main reason for this returns us to the generic approach to the establishment of the duty, the width of the class used in that exercise and the points that: i) many claimants within it will not experience the Difficulties to the same degree as others (or in some cases at all ), and ii) Atos HCPs, DWP decision-makers and tribunal members will be well aware of the symptoms and effects of many diagnoses of MHPs.[155]When determining what would be a reasonable adjustment to be made in respect of the class, these points establish a need to consider the likely impact of obtaining FME in all as opposed to some cases. That founds an assessment of the likely number of cases in the class in which FME will only be confirmatory of what the HCP and the DWP decision-maker know from the diagnosis and other information mentioned in the ESA50 and the “fit note” or, for other reasons, will be of little or no assistance to them in the decision-making process.[156]The experience of the two Upper Tribunal judges on this Tribunal and our view, on the present evidence relating to individuals and the wide class of claimants with MHPs, is that the diversity of the problems suffered by claimants with MHPs and their impact on individual claimants are such that: i) it is likely that this will be the case in a significant number of claims, with the result that the time, cost and effort of providing FME in those cases would not be reasonable, and ii) the approach taken by the Evidence Seeking Recommendation is more likely to effectively target the significant balance of the claims within the class in which FME will be likely to add real value to the decision-making process.[157]It seems to us that the most appropriate and reasonable way of testing those views on the impact of FME on individual members of the class used to establish the significant disadvantage would be to assess and trial an adjustment along the lines of the Evidence Seeking Recommendation.[158]Further, if FME was to be provided in respect of every claimant with MHPs issues arise as to how and when and from whom the FME should be sought. The focus and content of the “fit note” is a factor that underlies the adjustment sought by the Applicants but, as they accepted, it gives rise to issues concerning how the FME should be sought in every case and so, for example, what form should be used for it and what guidance should be given about it that will appropriately focus the FME, and thereby maximise the value added that it provides to the ESA decision-making process. This in turn introduces the problems relating to the role of GPs referred to by Professor Harrington (see the citation in paragraph 68 above).[159]In our view, those issues and more generally issues relating to the proper expenditure of public money and the application of public resources support our conclusion that, at this stage, the introduction of the adjustment primarily sought by the Applicants would be premature and so unreasonable because, in our view, a possible change to a practice that provides for FME to be requested by the persons assessing and deciding the entitlement, should be assessed and trialled first.[160]In reaching this conclusion we have not forgotten the Applicants’ point that an automatic provision of FME in every case would avoid mistakes such as that in MM’s case being made and/or assessors and decision-makers not seeking FME when it would be helpful. But, in our view, the proof of that pudding will be in the eating.[161]An adjustment along the lines of the Evidence Seeking Recommendation would require Atos HCPs and DWP decision-makers to consider whether FME should be sought and to identify its content or explain why it is not needed. This approach would fit with the statutory scheme, and would reduce the burden on the providers of FME and assist them by identifying what is sought in the given case.[162]An adjustment that introduces a change in practice along the lines suggested by the Evidence Seeking Recommendation The additional evidence indicates that the DWP does not share our view as to the meaning and intent behind the Evidence Seeking Recommendation.[163]Firstly, we agree, as that evidence and the Government’s response indicate, that if the present roles of Atos and the DWP are maintained, it would be sensible for the reasonable additional element to the practice to be introduced into the Atos process. Indeed, if as the DWP recognises the intent of the recommendation is that the further documentary evidence (and so for our purposes FME) is to be provided at the earliest opportunity, this method of change would have to be adopted, unless a DWP decision-maker (pursuant to Regulations 21 and 36 or otherwise) was required to consider whether FME should be sought before the case is referred to Atos and/or a questionnaire was to be completed. We also agree with the DWP that there is much to be said for an HCP, as part of his or her assessment, being the first person on the DWP side of the process considering this issue and making the request, as this will have the results that it is from an HCP to a doctor or person involved in providing treatment and help to a claimant with MHPs, and that the approach fits with the division of roles between the Atos HCP and the DWP decision-maker. We are therefore puzzled why the DWP thought it appropriate to make the point that what it is proposing in respect of the implementation of the Evidence Seeking Recommendation goes beyond its strict terms because Professor Harrington refers only to decision-makers. Further, on our understanding of the Evidence Seeking Recommendation, the DWP decision-maker would have to check back over the process, including the decision of the Atos HCP on requesting FME (see paragraph 70(v), (vii) and (viii) above).[164]Secondly, and more important, is the description given by the DWP in the additional evidence of what it is currently considering to implement the policy intent of the Evidence Seeking Recommendation because this only introduces new steps, concerning the obtaining of FME: i) after the face-to-face examination by the Atos HCP, and later ii) by the DWP decision-maker after the recommendation has been made by the Atos HCP. So, before those stages in the process, the DWP is suggesting that the ability of a claimant with MHPs to volunteer FME with (or before) the ESA50 and the present practice relating to requesting FME in only a very few cases before calling for a face-to-face assessment should not be changed.[165]In our view, this approach of the DWP flies in the face of: i) the significant change by Professor Harrington from the earlier approach that the onus should be on the claimant to provide all necessary and appropriate information, that underlies the Evidence Seeking Recommendation, ii) the point recognised by the DWP, that the further evidence (including FME) should be provided at the earliest opportunity, and iii) the point that, given the unique circumstances of their condition, particular care should be taken with claimants with MHPs, and so seeks to cling to the existing practice rather than adopting and addressing Professor Harrington’s Evidence Seeking Recommendation, whether it is interpreted literally or purposefully.[166]More importantly for our purposes, this approach by the DWP does not address the Difficulties at the first three stages of the decision-making process, namely(i) the request that an ESA50 be completed,(ii) the decision to call the claimant for a face-to-face examination / assessment, and(iii) the face-to-face examination / assessment. So it does not address: i) the consequences set out in paragraphs 52 and 53 above namely: The consequence of this is that the relevant decision-maker (and the practice is that this will be the Atos HCP) will only be able to take FME into account when making these two decisions and at the face-to-face examination / assessment: (i) if, by then it has been volunteered, or (ii) the claim is one of the few in which it will be requested by or on behalf of the DWP. So, in most claims the ways in which the recognised unique vulnerabilities and difficulties of claimants with MHPs are addressed, under the present practice, relate to (a) a failure to attend and attendance at the face-to-face assessment (see paragraphs 45 and 46 above), and (b) a checking process if a claim is refused (see paragraph 47 above). And, those aspects of the present practice do not include provisions as to when FME should be sought, although we understand that as a matter of discretion it might be sought at those stages in a few cases. ii) the Difficulties, (see paragraphs 125 and 126(ii) above), and iii) the substantial disadvantages we have found to exist (see paragraphs 138 and 139 above) where we said: In our judgment, the present practice relating to FME, has the result that in a significant number of claims by claimants with MHPs the existence and impact of the Difficulties result in those claimants, and thus that class of claimants, being placed at a disadvantage that is more than minor or trivial and/or suffering an unreasonably adverse experience: i) by being required to complete an ESA50 when this is not needed, ii) in the completion of the ESA50, iii) by being required to attend a face-to-face examination / assessment when this is not needed, iv) during a face-to-face examination / assessment, and v) during the final decision-making process and the communication of that decision by the DWP decision-maker. In our judgment, if appropriately directed FME was made available earlier in the decision-making process in respect of claims by claimants with MHPs, it is likely that, in a significant number of such claims: i) the HCP would be better informed before requiring an ESA50 and at the face-to-face to examination / assessment, with the result that the decision-making process in respect of the class, and the way in which it is perceived by claimants with MHPs as a class, would be improved because the Difficulties would be better addressed and so avoided or reduced, and ii) the DWP decision-maker would also be better informed in his or her assessment of the claim, the recommendations of the Atos HCP and his or her approach to the acknowledged vulnerabilities and difficulties of claimants with MHPs as a class and so individuals within it.[167]Accordingly, in our view the present approach by the DWP to the assessment and implementation of the Evidence Seeking Recommendation falls short of what is required to assess and implement reasonable steps to avoid the substantial disadvantages we have found to exist.[168]We have concluded that before we make a final determination and order as to the reasonable steps the SSWP should have taken or is to take to avoid the substantial disadvantages we have found to exist, the SSWP should be directed to carry out an investigation / assessment within a defined time as to how the Evidence Seeking Recommendation, as we understand it (see paragraphs 70(v) to (viii), 72 and 73 above) could be implemented. Without it, we are not in a position to reach a properly informed decision, with sufficient particularity, on what reasonable steps the SSWP should have taken or should be ordered to take.[169]This assessment or investigation will cover significant changes to the present practice that include: i) requesting FME from treating doctors and mental health services who have worked with a claimant with MHPs (and further or updating FME) before: a) he or she is requested to complete an ESA50, b) the decision is made to call him or her for a face-to-face examination / assessment, and before and after c) any such examination / assessment takes place. ii) the matters to be taken into account in deciding why such FME should or should not be sought at each such stage, iii) the manner in which FME is to be sought, including how the request will be drafted and focused, and iv) the manner in which the reasons for not seeking FME are to be recorded and passed on to the claimant. And, this assessment or investigation should address the practice in cases covered by both the functional and non-functional tests.[170]We acknowledge that this assessment or investigation may found arguments on what would or would not be reasonable at various stages having regard to administrative, computer, cost or other factors. Remedy[171]We agreed that we would hear the parties on this after this judgment had been circulated in draft for the identification of typing corrections and obvious errors. 22 May 2013 Mr Justice Charles Upper Tribunal Judge Jacobs Upper Tribunal Judge Lane

Cited in 4 later judgments