Go to next case study
Case Study Two: Alice Brown
Download Case Study Two (Word doc.)
| Is it discrimination? What’s happened – what’s gone wrong? |
|
| Which benefit or process is this example about? | The Department of Work and Pensions (DWP) stopped Alice’s Employment and Support Allowance (ESA) because she was failed to attend a work capability assessment (WCA) medical. Alice had significant mental health difficulties, and a home visit request had been refused. |
| About Alice and her situation | Alice is a lone parent of two children aged 12 and 7.
She experiences depression, anxiety and panic attacks, and has a long history of domestic abuse, the effects of which are evident on both her and her children. The oldest has mental health problems and is being supported by mental health services and the youngest has anger issues. Alice’s Family Centre worker, Victoria, became involved only a few months ago. She told us that she was shocked at the lack of support that was in place for Alice and her children as it was evident the family were struggling to cope Victoria referred Alice to both mental health (The Hill/Helping Centre) and domestic violence services. Alice has an Independent Domestic Violence Adviser (IDVA) worker who is attempting to provide telephone support due to the difficulties Alice has attending appointments. Alice’s sister, also provides ongoing support, as Alice requires regular prompting/supervision to manage daily life (getting up and dressed, making food for herself and her children, getting to and taking part in appointments). Alice’s mental health has significantly declined over the last few months, which is why she has found it difficult to attend appointments or obtain the relevant GP letter requesting a home visit. Alice’s good reason was discounted by the Decision Maker on the basis that she had been “given every opportunity to attend” and that “she is showing a pattern of intent to avoid assessment despite medical services authorising taxi costs to be covered on two occasions. Due to this I am unable to accept good cause.” There was information already available to both the Centre for Health and Disability Assessments (CHDA) and the Department for Work and Pensions (DWP) explaining that due to her anxiety and panic attacks Alice did have difficulties attending appointments – Alice’s GP had written to CHDA to explain this. |
| What are the flags/alarm bells/lightbulbs that can help you recognise discrimination? | Alarm bells Alice’s failure to attend the assessment was related to her disability.Flags Adviser made request for a scrutiny decision. DWP refusal to agree a home visit. |
| What does Alice want to happen? | To have her ESA reinstated immediately.
A scrutiny decision. An apology. Better treatment in future. To be placed in the ESA support group. |
| How can equality rights help to solve problems in welfare benefits? Why did it go wrong? |
|
| The welfare benefits perspective | The initial decision and reconsidered decision found Alice did not to have good cause for failing to attend her WCA on the 21July.
Her ESA was stopped. |
| The discrimination and Equality Act perspective: • Reason for the unfairness (the protected characteristic) • the type of discrimination (the prohibited conduct) |
Reason for the unfairness? Alice has mental health issues, including depression anxiety and panic attacks. She meets the Equality Act definition of disability.The type of discrimination? Discrimination because of something arising in consequence of disability (section 15 Equality Act 2010).Failure to make a reasonable adjustment (section 20 Equality Act 2010).What has gone wrong? Alice was treated unfavourably when she was found not to have good cause for failing to attend her WCA. Her failure to attend was something arising in consequence of her disability.The DWP have not complied with their duty to make a reasonable adjustment. |
| Top tip | An adviser will try to get several kinds of outcomes for a client. A complaint letter can include different kinds of issues: welfare benefits and discrimination issues. If the letter does not resolve the problem, then there may be different routes to take to pursue those outcomes. For example, a County Court could make an order for compensation for discrimination to be paid, but it cannot make an order that the DWP should put someone in the support group.
Seek specialist advice about identifying the correct ‘provision criterion or practice’ in a claim about reasonable adjustments. |
| Taking action about discrimination and finding more help What can you do? |
|
| How could you use the Equality Act and other rights to put this right? | Use sections 15 and 20 Equality Act 2010 to argue for a reasonable adjustment to home visit arrangements, and to ask for a scrutiny decision and reinstatement of her ESA. |
| Outcome | The adviser wrote a letter to the DWP Disputes Resolution Team to complain, to ask for reconsideration of the decisions that Alice did not have good cause for failing to attend her WCA. The adviser raised issues of discrimination, provided further evidence and asked for a scrutiny decision to be made.
The Disputes Resolution Team revised the decision, noted the further evidence and asked that a scrutiny decision be made. See example letters below. |
| What evidence would be useful here? | Evidence from Alice herself about the impact the decision has had on her. Evidence from Alice’s GP. |
| Time limits | The time limit for discrimination claims in the County Court is six months less one day. |
| Resources and information that would help in similar cases | Equality and Human Rights Commission (EHRC) resources for advisers. EHRC Code of Practice on services, public functions and associations. |
| Additional support | EHRC Adviser Support Line |
| Policy or campaigning issues | Change in DWP policy on WCA. Change in DWP recognition of Equality Act duties. |
Download Case Study Two (Word doc.)
Complaint letter example
Download Complaint Letter and Response (Word doc.)
- Failure to identify a vulnerable claimant and make adequate reasonable adjustments
- Inadequate investigation leading to discriminatory and unfair treatment of a vulnerable customer
DATE
Dear Sir/Madam
We are writing on behalf of the above-named client to complain and ask you to look again at both the initial and the reconsidered decision dated 5/08/17 and 10/10/17 not to find Ms Brown to have good cause for failing to attend her Work Capability Assessment on the 21 July 2017.
We believe that the decisions have been made without proper regard to or understanding of the extent and nature of her mental health conditions and how they impacted on her ability to attend the assessment.
Ms Brown was treated unfavourably when she was found not to have good cause for failing to attend her WCA. Her failure to attend was something arising in consequence of her disability. That was a breach of section 15 of the Equality Act 2010.
The DWP should have made an adjustment to the requirement for Ms Brown to provide further evidence, and that was a failure to make reasonable adjustments as required by section 20 of the Equality Act 2010.
Background
Alice is a lone parent of two children aged 12 and 7.
She experiences depression, anxiety and panic attacks, and has a long history of domestic abuse, the effects of which are evident on both her and her children. The oldest has mental health problems and is being supported by mental health services and the youngest has anger issues. Alice’s Family Centre worker, Victoria, became involved only a few months ago. She told us that she was shocked at the lack of support that was in place for Alice and her children as it was evident the family were struggling to cope
Victoria referred Alice to both mental health (The Hill/Helping Centre) and domestic violence services. Alice has an Independent Domestic Violence Adviser (IDVA) worker who is attempting to provide telephone support due to the difficulties Alice has attending appointments.
Alice’s sister also provides continual and ongoing support, as Alice requires regular prompting/supervision to manage daily life (getting up, dressed, making food for self and kids, getting to and taking part in appointments).
Alice’s mental health has significantly declined over the last few months (hence her difficulty in attending appointments or obtaining the relevant GP letter requesting a home visit) has been supported at home by the CRISIS team.
Issues of concern
Failure to identify a vulnerable claimant and make adequate reasonable adjustments/inadequate investigation leading to discriminatory and unfair treatment of a vulnerable customer
We understand that Alice’s good reason was discounted on the basis that she had been “given every opportunity to attend” and that “she is showing a pattern of intent to avoid assessment despite medical services authorising taxi costs to be covered on two occasions. Due to this I am unable to accept good cause.”
This is to misunderstand completely the difficulties Alice faced and appears unduly judgemental, especially in light of the situation we have explained.
Unlawful conduct in breach of the Equality Act 2010
As detailed above, the DWP has failed in its duties under the Equality Act 2010.
(a) Discrimination because of something arising in consequence of disability: Section 15 Equality Act 2010
Alice was treated unfavourably when she was found not to have good cause for failing to attend her WCA. Her failure to attend was something arising in consequence of her disability.
There is no requirement for a comparator in relation to this unfavourable treatment.
We submit that it cannot be justified because it serves no legitimate aim.
There has therefore been discrimination contrary to section 29 of the Equality Act 2010.
A duty to make reasonable adjustments: Section 20 Equality Act
The Department has a duty as set out in section 20 and schedule 2 of the Equality Act to take such steps as are reasonable to ensure that disabled people generally, including Ms Brown, are not placed at a substantial disadvantage by any provision criterion or practice.
The policy decision that required Alice to attend an assessment caused her substantial disadvantage.
The policy that required Alice to obtain further evidence to justify a domiciliary visit (is disproportionate and caused her substantial disadvantage.
There was information already available to both the CHDA and DWP which indicated that due to her anxiety and panic attacks Alice did have difficulties attending appointments. Alice’s GP had written to the CHDA to explain this. It is evident that Alice’s health conditions would have made it much more difficult for her to obtain further evidence.
We believe further enquiries should have been made about Alice’s health problems and whether she needed a domiciliary visit. Evidence from her GP, combined Alice’s explanation of her difficulties should have been enough to warrant this. To put the onus on such a vulnerable client to obtain the evidence herself, without proper enquiry or regard to her vulnerable situation is inadequate, did in fact put her at risk, and led to a deterioration in her mental health
Furthermore, we take this opportunity to politely remind the department that the reasonable adjustment duty under section 20 of the Equality Act 2010 is not a minimal requirement.
The Equality Act 2010 Code of Practice states the following:
‘The purpose of taking the steps is to ensure that disabled people are not placed at a substantial disadvantage compared with non-disabled people when using a service. Where there is an adjustment that the service provider could reasonably put in place and which would remove or reduce the substantial disadvantage, it is not sufficient for the service provider to take some lesser step that would not render the service in as accessible a manner.’ (7.35)
Therefore, the comment that “she is showing a pattern of intent to avoid assessment despite medical services authorising taxi costs to be covered on two occasions”, without checking whether this is an adjustment which would enable Alice to attend the assessment, not only falls short of what is required of the Act but again is a failure to fully investigate her case.
Reasonable adjustments could and should have been made: a scrutiny decision should have been made; the policy decision requiring Alice to attend an assessment centre should have been amended; the policy to require further evidence for a home visit should have been amended; the DWP should have taken steps to contact the professionals involved in Alice’s care; a flag should have been be placed on Alice’s file to ensure that appropriate adjustments are made in future; training should have been given to the staff involved in these decisions to prevent these errors.
How to put things right
- Revise the decision and reinstate her ESA.
- Make a scrutiny decision to place her in the ESA’s support group, using the information provided in this letter and by contacting the professionals involved in her care
- Provide an apology to our client and a compensation payment for the distress caused and the discrimination she has suffered.
- Put systems in place to ensure that this does not happen again. We suggest a flag is put on her claim so that in future the DWP exercises its reasonable adjustment duty and makes a scrutiny decision obtaining the further necessary medical evidence.
- Consider the wider picture affecting disabled claimants being called for face-to-face assessments. There appears to be tendency to jump straight to telling claimants that they must prove “good reason”, without prior checks being made to determine if the request was sensible in the first place. Please can you assure us that this systemic problem will be remedied.
Documents enclosed
Form of authorisation
We look forward to your response within the next 14 days
Yours faithfully
Doris Dark
Caseworker
…………………………………….
Hello Doris,
We have revised the decision in Alice Brown’s favour and emailed the decision to Barchester Service Centre.
We have also asked for consideration to be made for a scrutiny decision in this case.
Hopefully the additional evidence you have provided will assist with this as the GP letter is insufficient.
All the best,
Robert
xxx l Operations Manager | Dispute Resolution Team
