The current process for assessing eligibility for employment and support allowance by way of a questionnaire and face-to-face interview placed mental health patients at a substantial disadvantage compared with other claimants. The Secretary of State therefore was under a duty under the Equality Act 2010 to make a reasonable adjustment to accommodate them.

The Upper Tribunal had no power to issue directions to the Secretary of State to gather evidence concerning the reasonableness of a suggested adjustment and to present that evidence to the tribunal. It was not the duty of the tribunal to determine for itself what constituted a reasonable adjustment or to supervise the process of evidence gathering.

The Court of Appeal so stated when allowing in part the appeal of the Secretary of State for Work and Pensions against a decision of the Upper Tribunal (Administrative Appeals Chamber) on 22 May 2013 [2013] UKUT 259 (AAC) in which the tribunal had granted a declaration that the claimants, MM and DM, had been significantly disadvantaged by the assessment procedure for employment and support allowance (“ESA”) and made directions that the Secretary of State investigate the reasonableness of an evidence-seeking adjustment under the Equality Act 2010 and present that evidence to the tribunal.

ELIAS LJ said that the claimants were not barred from bringing a claim under section 21(2) of the Equality Act 2010 and they could assert their claim by way of judicial review. Thus the Upper Tribunal in principle had been able to find that prima facie discrimination had been committed against the claimants and had therefore been entitled to declare, as a step relevant to establishing a breach of duty, that the current policy created a substantial disadvantage to mental health patients in general. There was evidence to justify the finding of substantial disadvantage to mental health patients compared to those not so disabled because of the Secretary of State’s policy not to seek further medical evidence save in certain relatively limited circumstances. The tribunal’s conclusion was not perverse or unfair. As a matter of law an unreasonably adverse experience constituted a relevant substantial disadvantage for the purposes of section 212(1) of and Schedule 2 to the 2010 Act. The tribunal had properly identified relevant disadvantages as potentially relating both to the actual determination or outcome itself, and to the process leading up to it.

Having found that there was a substantial disadvantage but that prima facie the evidence-seeking adjustment was reasonable, in considering the issue of reasonableness the tribunal had exceeded its jurisdiction by issuing directions to the Secretary of State to carry out an investigation as to how the evidence-seeking recommendation could be implemented and to present its evidence to the tribunal. It was not the duty of the tribunal to determine for itself what constituted a reasonable adjustment or to supervise the process of evidence gathering. It was for the Secretary of State to adduce such evidence and to advance such arguments as he thought appropriate in order to discharge the burden that the evidence-seeking recommendation would not be reasonable. The tribunal’s directions would be quashed as unlawful.

VOS and MAURICE KAY LJJ agreed.