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Katherine Apps in Upper Tribunal judgment on scope of Equality Act 2010 and case management powers

In LO’L v SSWP[2016] UKUT 0010  a Claimant appealed from the First Tier Tribunal (“FTT”) on the basis that the FTT had failed to make reasonable adjustments for her mental health problems. She had written to the FTT stating that she could not attend the hearing because she did not want to go out on account of “bad depression, anxiety, panic attacks and phobias.” She said that she could not afford the fee to obtain a “medical letter” but directed their attention to a GP’s letter from 2011 which she had submitted during a previous appeal. The FTT at the hearing did not have the 2011 letter on file, nor did SSWP. The hearing proceeded in her absence, ultimately dismissing her appeal.

In the Upper Tribunal (“UT”) the Claimant argued that:

  • The FTT had failed to take into account R(MM) v SSWP [2014] 1 WLR 1716, in which the Court of Appeal had upheld the UTs’ finding that people with mental health problems are placed at a substantial disadvantage within the meaning of the Equality Act 2010 when applying for Employment and Support Allowance.
  • The FTT should have held a telephone hearing.
  • Alternatively, the FTT should have adjourned to have requested the 2011 letter directly from the Claimant’s GP.

UT Judge Jacobs dismissed the appeal, finding that:

  • A Tribunal is not, itself, under a duty to make reasonable adjustments under the Equality Act 2010. This is expressly excluded by Schedule 3 paragraph 3 of the Equality Act 2010 [9].
  • A Tribunal should take an individual’s mental health problems into account in exercising its own powers in applying the overriding objective [14]-[17]. Unlike the EAT, where a Wednesbury test applies to appeals from case management decisions (O’Cathail v TfL [2013] EWCA Civ 21) the UT applied the more generous CPR approach in Terluk v Berezovsky [2010] EWCA Civ 1345) [17].
  • The case of MM was not directly relevant. That was a case under the EA 2010 in the context of the SSWP’s duties, in which the individual claimants ultimately did not succeed on the facts ([2015] UKUT 107 (AAC)). The judgments are “valuable for containing evidence of the sort of problems that persons with mental health problems may encounter” [11] but each case must be considered individually and turn on the facts of the specific case.

They do not justify elevating the status of that evidence beyond general awareness of the nature of problems that can arise.” [13]

  • Telephone hearings are possible in the FTT, however, the FTT had not erred in not considering holding one in this case. The FTT had considered the facts of this case carefully and had devoted “a proportionate amount of time to analysing whether to hold a hearing” [36].
  • No adjournment was necessary to obtain records directly from the Claimant’s GP:

they can be helpful, but not always. The key consideration is always whether the records are likely to contain the sort of information relevant to the precise application of the descriptors. In my experience of cases involving anxiety and panic, the notes may contain some information, but are unlikely to contain the sort of information required to decide whether the requirements of any particular descriptor are satisfied.” [42]

This case provides:

  • A helpful summary of the framework for determining appeals from case management orders of the FTT;
  • Guidance on when the judicial review case of R(MM) v SSWP may be relevant to ESA benefits appeals;
  • Detailed guidance on the approach which a FTT should take when considering whether to hold a hearing by telephone; and
  • A reminder that old medical evidence, especially medical evidence submitted for the purposes of determining eligibility for Incapacity Benefit:
    • may no longer be held on SSWP’s or the FTT’s files;
    • may not be as relevant for an appeal as evidence from an up to date assessment.

Katherine Apps represented the Secretary of State for Work and Pensions in LO’L and in MM.

This post should not be interpreted as representing the views of the Secretary of State for Work and Pensions.

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