Case Study One: Bella Robbins
|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 Bella’s Employment and Support Allowance (ESA) because she was unable to attend a work capability assessment (WCA) medical.
The DWP had a policy that WCA appointments can only be changed once.
|About Bella and her situation||Bella has learning difficulties and suffers anxiety. For most of her adult life she lived with her aunt and uncle. She told us they did everything for her. After they died, Bella has had to learn to manage situations which are new to her or which involve the assimilation and processing of complex information, which she finds hard.
She gets very anxious and upset if she doesn’t understand something, know what is expected of her or how to manage a situation. Even coping with questions at our appointment has been hard for Bella as she clams up and becomes visibly distressed.
Her sister-in-law and her friend and neighbour, Rosalie, help and support her with anything she cannot manage or which seem overwhelming and or confusing. For example, they help her manage her bills by setting up her direct debts, deal with any complex correspondence, such as bills, letters from the council or DWP, and help her with difficult phone calls.
Rosalie made all the relevant phone calls to the assessment centre to explain why Bella was unable to get there. Bella explained: “I can’t do phone calls like that. I get worried and stressed in case I don’t understand. It makes me upset as I get confused and don’t know what to say or do.”
Bella’s first WCA was arranged for 15 March. However, it was in Barchester, a place she has never been before. Bella finds big cities difficult, even if someone is with her. (Navigating busy full of lots of people cities with complex layouts can seem impossible and overwhelming to clients like Bella with significant learning difficulties).
Rosalie contacted the assessment centre to rearrange the appointment. She explained why Bella would be unable to get to Barchester (her learning difficulties) and that she needed someone to go with her. Rosalie told them that that Bella could go to Melchester (a large town) if she had someone with her.
A second WCA was then arranged in Melchester for 22 March. Bella said: “I get worried, anxious and upset. I have never been to Melchester on my own before and would not know how to get there or how to find the assessment centre. I get all upset and panic.”
Originally Rosalie had agreed to take Bella to the assessment but was then unable to make the date. Rosalie rang the assessment centre on 21 March to try to change the appointment.
Despite explaining the reasons, Bella was told that as this was her second cancellation a decision would now need to be made on whether she had good cause for failing to attend.
|What are the flags/alarm bells/lightbulbs that can help you recognise discrimination?||Flags
Bella has had her ESA stopped for no good cause.Bella needed a WCA to be rearranged.Alarm bells
The DWP policies of only allowing one cancellation and not allowing an alternative method of assessment created barriers for Bella.
|What does Bella want to happen?||To get the decision that she was not entitled to ESA, changed straightaway.
An apology and compensation for the distress.
Better treatment in future.
|How can equality rights help to solve problems in welfare benefits?
Why did it go wrong?
|The welfare benefits perspective||The Decision Maker (DM) made a determination that Bella did not have good cause for failing to attend the WCA. They did not make any further enquiries.|
|The discrimination and Equality Act perspective:
• Reason for the unfairness (the protected characteristic)
• the type of discrimination (the prohibited conduct)
|Reason for the unfairness
Bella has learning difficulties. She meets the definition of disability in the Equality Act 2010.The type of discrimination
– Discrimination because of something arising in consequence of disability (section 15 Equality Act 2010).
– A failure to make reasonable adjustments (section 20 Equality Act 2010).
– Breach of public sector equality duty (section 149 Equality Act 2010).What has gone wrong?
Bella’s ESA was stopped because she could not attend her assessment appointment as she needed someone to go with her. This was unfavourable treatment because of something arising in consequence of her disability.The DWP have not complied with their duty to make a reasonable adjustment. The DWP policies of only allowing one change of appointment and not allowing an alternative method of assessment put Bella at a bigger disadvantage than a non-disabled person, because she had to rely on someone to go with her. The DWP knew about Bella’s learning difficulties and failed to take into account the information on their records.
|Top tip||It is very important to be clear about the ‘provision criterion or practice’ (PCP) in any claim about a failure to make reasonable adjustments, or in a claim about indirect discrimination. This is often contested in claims that go to court. If in any doubt, seek specialist advice to help you identify the right PCP.|
|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?||To argue for a reinstatement of ESA and new arrangements for WCA, use:
Discrimination ‘because of something arising in consequence of disability’ (section 15 Equality Act 2010)
|Outcome||The adviser wrote a letter making a complaint/any time revision request: see below.
(This example is based on a real case. The adviser wrote to the DWP and the letter, see below, solved the client’s immediate problem. If the letter had not resolved the problems, and Bella had wanted to take court action, the adviser would have sought specialist advice about the proposed court action.)
|What evidence would be useful here?||Evidence from Bella about the impact the DWP’s policy on WCA has had on her life.Evidence from Rosalie about the impact on Bella, and the reasons she could not attend the appointments that had been made.|
|Time limits||A claim in the County Court for discrimination has a time limit of six months less one day.
A judicial review claim should be started promptly, and no later than three 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.
Complaint Letter Example
Any time revision on ground of official error
Complaints Resolution Manager
Department for Work and Pensions
Dear Complaints Resolution Manager
Re: Bella Robbins
Complaint and revision request – Employment and Support Allowance-Irrational and unreasonable decision leading to discriminatory treatment under the Equality Act 2010
We are writing on behalf of the above-named client to complain about stopping her ESA because she was unable to attend a Work Capability Assessment medical on 22 March 2018.
Our client’s health condition currently and at time of the WCA
Bella has learning difficulties and suffers anxiety.
Most of her adult life Bella lived with her Aunt and Uncle who she tells us did everything for her. After their passing Bella has had to learn to do everything for herself. This has not been easy as Bella finds it hard to manage situations which are new to her or which involve the assimilation and processing of complex information.
She gets very anxious and upset if she does not understand things and doesn’t know what is expected of her or how to manage situations. Even coping with questions at our appointment has been hard for Bella as she clams up and becomes visibly distressed.
Her sister in law, and her friend and neighbour, Rosalie, helps and supports her with anything she cannot manage or which seem overwhelming and or confusing. For example, they help her manage her bills by setting up her direct debts, deal with any correspondence which contains any level of complexity- such as bills, letters from the council/DWP – and help her with difficult phone calls.
Indeed, it was Bella’s friend Rosalie who made all the relevant phone calls to the assessment centre to explain why Bella was unable to get there as Bella herself was unable to do so. She explains “I can’t do phone calls like that, I get worried and stressed in case I don’t understand. It makes me upset as I get confused and don’t know what to say or do”.
Bella’s first WCA was arranged for the 15 March, however it was in Barchester, a place she has never been before as she cannot cope with big cities, even if accompanied by another person. (Cities are busy places, full of lots of people with more complex layouts. Navigating them can seem impossible and overwhelming to clients like Bella with significant learning difficulties).
Because of this Bella’s friend, Rosalie, contacted the assessment centre to rearrange the appointment, explaining the reasons why Bella would be unable to get to Barchester. (Bella is unable to make what she describes as ‘phone calls like that’ herself as she gets worried in case she does not understand or gets confused about what she is being asked or told or if she says the wrong thing).
A second WCA was then arranged in Melchester for 22nd March 2018. Originally Rosalie had agreed to take Bella to the assessment as Bella is unable to get to places which are unfamiliar to her without support. Bella tells us, “I get worried, anxious and upset. I have never been to Melchester on my own before and would not know how to get there or how to find the assessment centre. I get all upset and panic.”
Unfortunately, her friend Rosalie later found that she would not be able to make it on the day of the assessment. Because of this Rosalie rang the assessment centre on 21st March 2018 to try to rebook to a different day.
Despite explaining the reasons for the cancellation our client was told that as this was her second cancellation a decision would now need to be made on whether she had good cause for failing to attend.
The decision was then made that Bella’s not entitled to WCA for having no good reason for her failure to attend.
Issues of concern
Failure to take into account Bella’s learning difficulties and how they impact on her
The DWP appear to accept that Ms Robbins’ learning difficulties are severe enough to mean that she requires support to attend the assessment centre. However, we are concerned that good cause has been rejected on the basis that Bella failed to arrange for someone else to attend the appointment with her and or arrange a home visit- when it was evidently not within her power to do so. To expect Bella to make alternative arrangements in such a short space of time is unreasonable and disproportionate.
The DWP’s decision is flawed by a lack of understanding of learning difficulty and a failure to take into account the nature and extent of Bella’s’ disability.
Inadequate investigation and flawed reasoning
A learning difficulty can mean substantial difficulty with everyday activities and learning. The DWP should have enquired about and determined Bella’s level of ability and it failed to do so.
No enquiries were made as to the nature and extent of Bella’s’ learning difficulties and how they may affect her ability to plan, organise and execute alternative arrangements at such short notice.
Instead the decision maker in this case makes the rather bold and irrational assertion, without proper finding of fact, that Bella could have found someone else to go with her or alternatively have made an arrangement for home visit.
No explanation was made as to how she was expected do this.
Failure to consider relevant information
The conclusion reached is all the more alarming when we consider that the following information was actually available to the DWP at the time of the decision:
- Clients’ own evidence that she has learning difficulties and needs someone to go with her as she cannot to unfamiliar places on her own (which indicates a significant level of learning difficulty).
- GP letter supporting this and also stating she suffers from anxiety as a result of her learning difficulty and needs someone to go with her
- evidence that her friend Rosalie made all the relevant phone calls to the assessment centre to try and re-arrange appointments (Bella has said that she “can’t cope with ‘those sorts of calls”.
We submit that this information in itself was arguably sufficient for the decision maker to make a determination that Bella did have good cause for failing to attend the WCA. It should have, at the very least, triggered further inquiries to be made.
Unlawful conduct in breach of the Equality Act 2010
As a result of the above failures 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
The decision that Bella does not have good cause for failing to attend her WCA is prohibited conduct under section 15 of the Equality Act – discrimination because of something arising in consequence of disability.
Bella’s ESA was stopped for failing to attend an appointment that she could not attend as she needed someone to go with her to the WCA. That need, and Bella’s subsequent inability to attend the second WCA, is something that arises 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 and involves significant financial loss to the claimant. There has therefore been discrimination contrary to section 29 Equality Act 2010.
A duty to make reasonable adjustments: Section 20 Equality Act
The DWP 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 Bella, are not placed at a substantial disadvantage by any provision criterion or practice.
The policy of only allowing only one change of appointment, and not allowing an alternative method of assessment, put Bella at a substantial disadvantage because she had to rely on someone to go with her. The DWP was aware of Bella’s learning difficulties and failed to take into account the information on their records.
Reasonable adjustments could and should have been made to: adjust the one-change appointment policy; arrange a home visit; arrange a further appointment at Melchester; and accept that Bella’ had good cause for not attending the second appointment.
We submit that stopping Bella’s ESA because she was unable to get to an assessment is neither just nor fair.
Public Sector Equality Duty: Section 149 Equality Act 2010
As you are aware, under section 149(1) of the Equality Act 2010 (the “Act”), the DWP must, in the exercise of its functions, have due regard to the need to (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Act and (b) advance equality of opportunity between persons sharing a relevant protected characteristic and persons who do not share it (the “PSED”).
Under section 149(3) of the Act, having due regard to the need to advance equality of opportunity as described in s149(1) includes having due regard to the need to remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic. It also includes taking steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it.
It is clear that Bella has a disability falling within the meaning of the Act. The DWP must therefore have due regard to the need to eliminate discrimination and advance equality of opportunity in the exercise of its functions, including its handling of Bella’s case.
In our view, stopping Bella’s claim for ESA in the manner described above is a clear and serious breach of the DWP’s Public Sector Equality Duty. The loss of income-based sickness benefit has severe implications for Bella’s ability to manage her essential living costs.
In removing Bella’s benefits completely with insufficient enquiry and with knowledge of the likely knock-on effects to Bella’s life, the DWP has failed to have due regard to the need to advance equality of opportunity in clear breach of section149 of the Equality Act.
How to put this right
We propose that the DWP:
- Revises its decision immediately.
- Makes an apology and pay compensation to Ms Robbins which adequately addresses the discrimination she has experienced and distress caused.
- Employs a more robust monitoring /training of decision makers to ensure that all decisions are compliant with public law and Equality Act requirements as detailed above
- Gives staff learning difficulty awareness training.
- Complies with its duty to take extra steps to ensure that all decisions made are accurate, reasonable and fair where a failure to attend WCA decision involves a vulnerable claimant or someone with a learning difficulty.
Steps could include:
- An improved focus on seeking further evidence from people involved in the claimant’s care. This would help remind staff that the DWP has an anticipatory Equality Act duty to reasonable adjustments
- A reminder to all decision makers that stopping a claimant’s ESA when they are unable to attend a WCA is not something they have to do Firstly, because it has to be compliant with Public Law and the Equality Act to make the discretionary decision to send any claimant for an assessment and, secondly, if it appeared reasonable at the time, but it subsequently transpires that the claimant could not manage it, then there is the of the claimant having good cause for being unable to attend.
Thank you for your kind consideration of this matter.
We would be most grateful for your written response within the next five days