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Katherine Apps in leading case on Equality Act 2010 and ESA
On 19 September 2014 the Upper Tribunal handed down judgment in JS v Secretary of State for Work and Pensions  UKUT 0428 (AAC). In this case the Upper Tribunal considered the extent to which the legal scope of the Equality Act 2010 should be considered by DWP Decision makers, and by Tribunals in assessing whether a Claimant is entitled to Employment and Support Allowance (“ESA”) by reason of the exceptional route in reg. 29 (2)(b) Employment and Support Allowance Regulations 2008 (“ESA Regs”).
This decision resolves confusion caused by previous inconsistent case law of the Upper Tribunal.
A full copy of this judgment is available here.
The question on appeal
If a person claiming ESA does not satisfy the statutory “descriptors” for eligibility, they may be treated as having limited capability for work (and therefore entitled to receive benefit) if they suffer from a “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” (reg. 29 (2)(b) ESA Regs). Although not in force at the time of the appeal, the ESA Regs now specifically state “This exceptional route does not apply if the “risk could be reduced by a significant amount by reasonable adjustments being made in the Claimant’s workplace” (reg.29(3)(a) ESA Regs).
In granting permission to Appeal, Upper Tribunal Wright observed that the Equality Act 2010 “is a legislative provision that is featuring to quite a significant extent in First tier Tribunal decisions” such that “an oral hearing is needed to further explore this issue with a view to providing, if possible, appropriate guidance to appellants.”
In JS the Upper Tribunal considered the following questions:
- Is a simple reference to the Equality Act 2010 sufficient?
- What evidence would the First Tier Tribunal need of the adjustments that an employer would in fact be compelled, or likely to be compelled to make under the Equality Act 2010?”
- In assessing risk can the First Tier Tribunal simply rely on an assumption that employer would have to meet the Equality Act 2010 requirements, or does the assessment of risk require the First Tier Tribunal to assess the likelihood that (otherwise suitable employers) would in fact make such adjustments?”
Previous inconsistent Upper Tribunal case law
In the case of JB v SSWP (ESA)  UKUT 0518 (AAC) the Upper Tribunal had held that, “the tribunal is bound…to make a determination as to whether a person would be owed a duty by a potential or actual employer under the 2010 Act. In particular, if the existence of such a duty is a prerequisite for there being no substantial risk to a claimant’s mental or physical health for the purposes of regulation 29, then plainly a finding must be made as to that duty.”(para 15) This approach suggested that decision makers and tribunals must engage with the EA 2010 and determine the material scope of any duty to make reasonable adjustments owed by a potential, and as yet unidentified employer.
This approach had been followed in some cases but not in others (for example alternative and differing approaches were taken in SI v SSWP (ESA)  UKUT 0308 (AAC) and AT v SSWP (ESA) UKUT 06030 (AAC)).
The Judgment in JS provides that resolution. Upper Tribunal Judge Wright held that the decision maker / First Tier Tribunal need not analyse, as a matter of law, whether the Equality Act 2010 applied to the Claimant, or assess whether specific adjustments would, or would not be reasonable.
His reasoning was that:
- Firstly, this was because the Equality Act 2010 and ESA have different statutory aims and materially different statutory contexts;
- The work related duties under the Equality Act 2010 are individuated;
- They relate to the specific disabled person, and not disabled people at large (para 50).
- They require an employer, or prospective employer’s, provision, criterion or practice. The ESA Regs generally apply where there is no specific employer or prospective employer (para 51).
- The employer’s knowledge of the disability is relevant under the Equality Act 2010, but not under the ESA Regs (para 52).
- Coverage of the Equality Act 2010 is different:
- For example, alcoholism and drug dependence are excluded from protection under the Equality Act 2010, but included under the ESA Regs (para 53);
- The Equality Act 2010 requires the effect of the disabling condition to be likely to last 12 months. This is not a requirement under the ESA Regs (para 54);
- Although the ESA assessment specifically involves a consideration of an employee’s journey to work, the Equality Act 2010 may well not require an employer to make adjustments for the employee during that journey (para 55).
The FTT does not have jurisdiction under Part 5 of the Equality Act 2010. Such jurisdiction lies exclusively with the Employment Tribunal, or the Administrative Court on an application for Judicial Review (para 56).
Secondly, the analysis required under the Equality Act 2010 sits uneasily with the Court of Appeal case law on reg 29 (Charlton v SSWP  EWCA Civ 42) (para 46).
Thirdly, the First tier Tribunal is “ill-equipped to make proper assessments under the Equality Act 2010” (para 46(iii) and 58). Employment Tribunals are “specialist” in interpreting the provisions of Part 5 of the Equality Act 2010; the First Tier Tribunal is specialist on questions relating to ESA (para 57).
- Finally, recourse to the Equality Act 2010 is not necessary for decision makers and the First Tier Tribunal to be able to decide the reg 29 question. The questionS for the decision maker and tribunals are:
- Whether there is a range or type of work “which the individual Claimant is suited to do as a matter of training or aptitude which his or her disabilities do not render him incapable of performing?” (para 62);
- What is the “nature of the disease or disablement of the individual claimant and the risk they would give rise to on the balance of probabilities if the Claimant was travelling to and from and working employments he would otherwise be suited to do?” (para 62). If there is a range or type of work (including travel to and from it) which involves no risk, the analysis need continue no further. Reg 29 could not apply;
- If there would be such a risk from the suitable range or types of work (or travel) “part of that risk assessment will involve consideration of the steps that…could reasonably and realistically be taken to avoid any substantial risk to health.” This is a “reasonable and realistic” “real world” approach; not one tied to the provisions of the EA 2010.
The Judgment in JS brings clarity to this area, specifically departing expressly from Judge Mark’s suggested approach in JB, and refocusing the analysis on the statutory test and the principles as set out by the Court of Appeal in Charlton.
Katherine Apps represented the Secretary of State for Work and Pensions and was instructed by the Department for Work and Pensions legal team.
Any views expressed in this post should not be interpreted as views of the Department for Work and Pensions or members of Littleton Chambers.