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Neutral Citation Number:	2015 UKUT 107 AAC
Reported Number:
File Number:	JR 2639 2012
Appellant:	THE QUEEN On the application of (1) MM (2) DM
Respondent:	Secretary of State for Work and Pensions and (1) Mind (2) National Autistic Society (3) Rethink Mental Illness (4) The Equality and Human Rights Commission
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	09/03/2015
Date Added:	18/03/2015
Main Category:	Equality Act
Main Subcategory:	none
Secondary Category:
Secondary Subcategory:
Notes:	Court of Appeal decision and [1]-[94] of UTAAC decision reported as [2016] AACR 11. Equality Act 2010 – section 21(3) – claimants with mental health problems – whether adjustments identified by applicants reasonable – applicant to show put at disadvantage by failure to make reasonable adjustments Employment and support allowance –assessments – claimants with mental health problems The applicants, who both had mental health problems, brought claims for judicial review under the Equality Act 2010 asserting that they were placed at a substantial disadvantage in comparison to claimants and recipients of employment and support allowance (ESA) who did not suffer from mental health problems. They sought adjustments under the 2010 Act requiring the decision-maker either to obtain or to consider obtaining further medical evidence before reaching a decision on a claim by someone with mental health problems. A three-judge panel of the Upper Tribunal (UT) was convened to consider the cases. In an interim decision it held that the Department for Work and Pensions’ processes placed those with mental health problems at a substantial disadvantage and directed the Secretary of State for Work and Pensions to take defined steps to investigate and assess the implementation of changes he might make before it gave a final decision. On appeal by the Secretary of State against that decision the Court of Appeal decided, among other things, that (1) under section 21(3) of the 2010 Act any relevant proceedings must involve seeking to establish a claim of discrimination against at least one disabled person to whom the duty to make reasonable adjustments was owed, and (2) the UT had exceeded its powers by issuing those particular directions – its duty had been to determine whether the adjustments identified by the applicants were reasonable (not to determine a reasonable adjustment itself, or to supervise the process of evidence gathering). Applying the approach set by the Court of Appeal the relevant issue before the UT was whether, as required by section 21, either applicant could show that the Secretary of State had been in breach of duty to him or her individually (as opposed to disabled applicants as a class). Held, disallowing the applications, that: 1. it was clear from the Court of Appeal’s decision that sections 20 and 21 of the Equality Act created a two stage approach to determining whether an individual applicant could establish discrimination, namely: (1) has there been a failure to comply with a duty to make reasonable adjustments, and (2) has the individual applicant shown a failure to comply with that duty in relation him or her. At the second stage the individual applicant has to show that he or she was put at such a disadvantage by the failure to comply with the duty to make reasonable adjustments (paragraphs 49 and 51); 2. the individual applicants could not show that the alleged failure of the Secretary of State to comply with his anticipatory duty by making the adjustments said to be reasonable had caused, was causing or would cause them any substantial disadvantage or had, was or would subject them to any detriment that caused them an unreasonably adverse experience, and this was fatal to their claims for judicial review (paragraph 58); 3. despite proceeding on the assumption that the Secretary of State had failed to establish that the adjustments suggested by the applicants were not reasonable the applicants had failed to establish that there had been an individual breach, and therefore discrimination, as required by section 21(2) of the Equality Act 2010 (paragraphs 60 to 62, 78 and 90).
Decision(s) to Download:	JR 2639 2012-01.doc [2016] AACR 11ws.rtf