Govt no action on WCA mental health case

Sun,19 January 2014

Secretary of State for Work and Pensions v MM & Anor [2013] EWCA Civ 1565

The Court of Appeal has upheld a ruling which found that the process used to decide whether hundreds of thousands of people are eligible for Employment and Support Allowance (ESA) disadvantages people with mental health problems, learning disabilities and autism.

Unfortunately a tribunal is forbidden to issue remedying directions to the Secretary of State and a leaked memo shows the Government intends to do nothing following the case.


The original judgment, which was made public at an Upper Tribunal hearing in May this year, was the result of a Judicial Review brought by two anonymous claimants with mental health problems. For more information on this see the judgment (MM & DM v Secretary of State for Work & Pensions [2013] UKUT 0259 (AAC) - JR/2638/2012 and JR/2639/2012) and the Public Law Project press release.

The upper tribunal three judge panel ruled that the WCA substantially disadvantages claimants with mental health problems because – while the system is designed to deal with claimants who can accurately report the way in which their disability affects their fitness to work – claimants with mental health problems have a number of specific difficulties in self-reporting. For example, they may lack insight into their condition, their condition may fluctuate day by day, or they may be unable to accurately explain how it affects them.

As a result, the court said that it is especially important for the DWP and Atos assessors to take medical evidence from applicants’ community health professionals, such as psychiatrists or community psychiatric nurses, and that unless the system was adapted to take medical evidence into account at the early stages of the process it would be unfair to people with mental health problems.

The three judges therefore ordered that the DWP should take reasonable steps to address the disadvantage to people with mental health problems. In doing so the tribunal directed that the DWP carry out an investigation and then return to court to explain what steps they proposed to take.

Court of Appeal

Instead of complying with this direction the Department for Work and Pensions (DWP) immediately appealed against the judgment and the Judicial Review was put on hold.

The appeal by the Secretary of State was on four grounds.

  1. The Secretary of State submitted that irrespective of the merits of the case, the Tribunal had no jurisdiction to grant the declaration of substantial disadvantage at the behest of these claimants and their claims ought to have been dismissed.
  2. It was not open to the Tribunal properly assessing the evidence before it to conclude that mental health patients (MHPs) were in fact placed at a substantial disadvantage.
  3. The Tribunal misdirected itself as to the meaning of "substantial disadvantage" and found that certain adverse experiences were capable of amounting to a substantial disadvantage when as a matter of law they were not.
  4. The Tribunal impermissibly converted itself into a policy maker and went beyond its judicial remit when it issued the directions it did requiring the Secretary of State to carry out an investigation and to disclose specified information at the adjourned hearing.

The Court of Appeal dismissed the first three grounds but upheld ground 4.

“82 The duty of the Tribunal is to determine whether the adjustment identified by the claimant is reasonable; and in some cases (as here) the burden may shift to the other party to demonstrate that it is not. But it is not the duty of the Tribunal to determine for itself what constitutes a reasonable adjustment or to supervise the process of evidence gathering. As Mr Chamberlain submits, this involves the Tribunal determining policy issues, which is constitutionally improper and which the Tribunal is in any event not properly equipped to do. It is not for the court to step into the Secretary of State's shoes and to require the Secretary of State to incur public funds in ways he or she might consider inappropriate. I recognise that the directions were formulated with sensitivity; they did not require the Secretary of State to undertake any step which he wished to contend was unreasonable; and as to the evidence, it was qualified by reference to such evidence "as [the Secretary of State] wishes to rely on". Nonetheless, in my opinion the Tribunal exceeded its jurisdiction by issuing these directions at all.”

The Court of Appeal quashed the directions and upheld the Secretary of State's submission that the Upper Tribunal had misunderstood the scope of its powers and ought not to have issued the directions it did.

What next?

The case will be referred back to the upper tribunal for a determination of whether there are reasonable adjustments to be made by the DWP. A leaked ‘gatekeeper memo’, published by benefits and work, states that the DWP considers that no procedural changes need to be made.

“The Upper Tribunal did not direct us to make specific changes to the WCA process, and the Court of Appeal’s judgment does not change this direction. It will be business as usual for DWP Operations. Individuals will apply for ESA and undergo the WCA in the normal way. Those currently on Incapacity Benefit will be reassessed as planned.”

You can view the Court of Appeal judgment, Secretary of State for Work and Pensions v MM & Anor [2013] EWCA Civ 1565, at For more information on the judgment also see the Rethink press release.