Challenging a decision to terminate a man's Employment Support Allowance (ESA) payments

Case name: R (on the application of Alison Turner) v SS for Work and Pensions

A judicial review hearing was heard at the High Court to consider the case of Errol Graham who starved to death in June 2018 after his Employment Support Allowance (ESA) payments were terminated by the Department of Work and Pensions (DWP) eight months earlier. We intervened in this case. 

Legal issue

What are the DWP’s human rights and equality obligations to disabled people before they stop benefits?

Background

The claim, brought on behalf of the family by Alison Turner (the fiancée of Mr Graham’s son), alleges that the decision to halt Mr Graham’s benefits in 2017 was unlawful and that the DWP’s ESA safeguarding policy on the termination of benefits is still unlawful, despite revisions that were belatedly made following the issuing of these proceedings. 

Mr Graham, who suffered severe mental ill-health, was found starved to death aged 57, eight months after his ESA payments and housing benefit payments were halted. He had missed a fitness for work assessment and had not responded when the DWP tried to contact him by phone and in person. The payments were terminated in line with DWP policy, without any effort to contact next of kin or other support services and without considering whether Mr Graham’s known mental health issues could have been the reason for his lack of communication.

When Mr Graham was found dead, he weighed just four and a half stone, there was no food in his flat and no credit on his gas or electricity meters. An unsent letter to the DWP was found which pleaded “please judge me fairly”.

Following the issue of court proceedings by Ms Turner the DWP made several changes to the safeguarding policy that was applied in Errol’s case and it published new internal guidance. 

Whilst welcoming the improvements made, Ms Turner said the ESA safeguarding policy remains unlawful in key respects:

  • It put the onus on vulnerable benefits claimants to prove to the DWP that they had “good cause” for failing to attend a meeting or not responding to communication. This is contrary to Regulation 24 of the Employment and Support Allowance Regulations 2008 and s149 of the Equality Act 2010. 
  • It failed to make clear that the DWP has a duty (not a discretion) to make inquiries, including where necessary from external individuals and bodies, to obtain sufficient information about the state of the Claimant’s health so they can properly assess whether they had good cause for missing an appointment or not responding to communication. That is a rigorous duty in part because many such claimants (in the same way Mr Graham was) will be at serious risk of harm or death if their benefits are terminated.

At the inquest into Mr Graham’s death, the coroner said more detail about his condition could have been sought from his GP and noted that there is no guidance for DWP staff following “failed safeguarding visits” as had occurred in his case, and no requirement in those cases to seek more information before a decision to cease benefits is made.

The coroner called for “robust policy and guidance…that ensures all evidence that can reasonably be gathered is put together about a client, before a benefit is ceased”. 

Why we were involved

A key issue in this claim is the compliance with the public sector equality duty and protection of human rights. The scale of the problem is significant in light of the systemic issues shown in a National Audit Office report published in February 2020.

This issue is relevant to our Strategic Plan as it is a serious breach of equality and human rights standards and our Core Aim is to ensure that they are successfully challenged.

It is also relevant to our COVID-19 plan - disabled people are unable to access essential services and Human rights are not protected at a time of restrictions to civil liberties.

The UK Government confirmed on 4th May 2020 that there had been an increase in benefits claimants during the COVID-19 pandemic and figures show a rise in deaths in disabled benefits claimants since March 2020.

What we did

Mind, the leading national mental health charity in England And Wales submitted evidence in support of Ms Turner’s case, and we formally intervened in support. 

What happened

At the hearing, Ms Turner asked the court to give a declaration that the DWP’s decision to disallow Mr Graham’s benefits in October 2017 was unlawful because it was in breach of s.149 Equality Act 2010 and Regulation 24 of Employment Support Allowance Regulations 2008. She said there were strong indicators that his mental health or disability may have given him good cause for not responding and he was known to have long term depression, and the DWP’s policy should ensure such indicators are identified and considered.

Alison Turner was represented by Tessa Gregory and Carolin Ott of Leigh Day solicitors and Adam Straw and Jesse Nicholls of Doughty Street Chambers. 

Who will benefit and how

Everyone has a right to an adequate standard of living. Errol Graham’s story is devastating and no one should ever have to suffer in such terrible circumstances.

We have intervened in the legal challenge brought by Errol Graham’s family to provide our expertise on the equality and human rights implications of the case. We hope that this will lead to essential changes and improvements so that no one ever has to suffer in similar conditions.

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