DWP defeats public sector equality duty challenge over method of communication with homeless man

The Department for Work & Pensions has successfully defended a High Court challenge brought by a homeless man who claimed that its approach to communication was in breach of its duties under the public sector equality duty.

The claimant in Atherton, R (On the Application Of) v Secretary of State for Work And Pensions [2019] EWHC 395 suffers from Chronic Fatigue Syndrome and is reliant on social security benefits.

Jeremy Johnson QC, sitting as a deputy judge of the High Court, noted that efficient and effective communication with the DWP in relation to his benefits was essential to the claimant.

“He finds communication by postal mail difficult. That is partly because he does not have his own permanent address. It is also partly because his medical condition means that he does not know from week to week whether he will be in hospital or whether he will be staying with friends, or elsewhere. He cannot always travel, so collecting mail from a Jobcentre is difficult. He cannot communicate by telephone because he does not have one. Email communication is much easier for him.”

The claimant, however, had had difficulty in persuading the DWP to communicate with him by email. The Department’s position was that it did not send confidential information by email.

By the proceedings he initially challenged the DWP's refusal to communicate with him by email. He said that insisting on postal – rather than email – communication amounted to a breach of its PSED pursuant to s149(1) Equality Act 2010. He also said it amounted to a breach of its duty to make reasonable adjustments to accommodate his disability, pursuant to ss20 and 29 of the 2010 Act.

The DWP, for its part, said that it had now sought to accommodate the claimant's preferred means of communication by way of a "workaround" that enabled email communication.

This workaround involves changing the address of benefit claimants needing reasonable adjustments to the address of a central Alternative Formats team. The effect is that system generated correspondence (which accounts for 80% of correspondence relating to ESA [Employment Support Allowance]) is sent through the post to that address. The AF team then converts the correspondence into the requested format (eg email) and sends it to the benefit claimant.

However, the operation of the workaround will change the address not just for the purpose of the DWP but also potentially for the purpose of some communications sent by other Government departments.

The claimant considered that the workaround was, itself, flawed and that there was a continuing breach of the DWP's duties under the 2010 Act.

Judge Johnson said the approach of the DWP to the claimant, and to many other disabled benefit claimants, had failed over a period of years to comply with its statutory obligations under the Equality Act 2010 (and, before that, the Disability Discrimination Act 1995).

“Those with disabilities that meant that they had difficulty communicating by post were, in many instances, unable to secure a satisfactory means of communication with the DWP. This in turn meant that some went without benefits that were essential to them. At the time this claim was filed the DWP had still not complied with its statutory duties in respect of the claimant,” the judge said.

He added: “It is understandable that the Claimant should continue to be sceptical about the DWP's commitment to ensuring compliance with its statutory duties. His scepticism may prove to be well-founded.

“As matters stand, however, the DWP has offered the Claimant a system of communication that (subject to effective implementation) amounts to a reasonable adjustment and complies with its PSED. It follows that the claim for judicial review falls to be dismissed.”