Judge rejects claim Work and Pensions Secretary acted unlawfully in case where tenant found to have starved to death after benefits stopped

The High Court has rejected a claim that the Secretary of State for Work and Pensions acted unlawfully in a case where a man who had claimed benefits was found starved to death in his flat.

In Turner, R (On the Application Of) v Secretary of State for Work and Pensions [2021] EWHC 465 (Admin) Mr Justice Bourne said that despite his sympathy with the victim he could not find any failure by the Secretary of State.

The Equality and Human Rights Commission gained intervenor status but the judge said it was not appropriate for him to try to resolve the point it raised.

Bourne J explained: “This is a very sad case. It concerns Errol Graham, who died of starvation in or around June 2018 aged 57.”

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Mr Graham was disabled, had long-term depression and hypothyroidism and had received benefits from 2003 onwards.

In 2017 his continuing eligibility for Employment Support Allowance (ESA) was questioned but he did not engage with the process and the Department for Work & Pensions (DWP) discontinued payments.

After this Mr Graham made no further contact with anyone and rent arrears accrued to Nottingham City Homes, which began eviction procedures. Nottingham City Homes is the Arm's Length Management Organisation of Nottingham City Council. 

On 20 June 2018, bailiffs broke down the door of the flat and found Mr Graham's body.

Alison Turner, the partner of Mr Graham’s son, challenged the lawfulness of the DWP’s policy on ESA and its decision in Mr Graham's case.

The judge said Mr Graham was in hospital with mental health issues in 2015 and later that year Ms Turner and Mr Graham’s son would leave supplies at Mr Graham's flat but he would not meet them.

In July 2017, the DWP sought to contact him through his doctor - whom he had not seen for four years - and by letter, to which he did not respond. Nor did he answer two calls at his home from a DWP safeguarding team.

His ESA claim was closed on the grounds that he had not engaged with requests for communication.

The ESA had been the foundation for his eligibility for housing benefit, and Nottingham City Council consequently stopped this, which led to eventual eviction proceedings.

Ms Turner argued the DWP’s policy was unlawful because many claimants will be prevented from responding because of mental illness. Placing the onus on the claimant to prove good cause is contrary to caselaw and inconsistent with the objectives of the legislation.

She also argued that where the claimant has a long-term mental disability, regulation 24 of the Employment Support Allowance Regulations 2008 and s.149 of the Equality Act 2010 imply a duty to inquire.

Bourne J said: “In my judgment, it is lawful for the policy to refer to a burden of proof…and the policy makes clear to decision makers what type of inquiries they should carry out before applying that burden and making decisions as to 'good cause'.

“The policy does not misstate the law or create a risk that wrong decisions will be taken in a significant number of cases.”

He said the policy at the time did not specifically instruct decision makers to consider contacting a next-of-kin or other agencies,

“Such provision has now been made and is in my view a significant improvement to the policy,” he said.

“It should help to prevent tragic outcomes like that of Mr Graham, though I cannot say what if any effect it would have had in his case.”

The judge concluded: “Despite the tragic circumstances of this case, in my judgment the claimant falls well short of establishing that the [DWP] failed to comply with this duty.”

Officials responded to Mr Graham’s silence by making several attempts to contact him and his doctor and did not know of the acute illness which Mr Graham suffered in 2015 or his ensuing isolation.

The judge said: “Meanwhile, the defendant's officials were confronted with a complete cessation of contact by Mr Graham and an absence of any attempt by him to do anything to permit his ESA review to progress.

"Neither the legislation nor the defendant's policy at the time mandated any further specific steps to be taken in that situation.

“In these circumstances, I do not consider that no reasonable authority could have been satisfied on the basis of the enquiries made that it possessed the information necessary for its decision.”

The EHRC gained intervenor status to argue DWP policy was defective because it did not require decision makers to consider regulation 29 of the 2008 Regulations and whether this complied with ECHR Article 3 and Article 28 of the UN Convention on the Rights of Persons with Disabilities.

The judge said: “It seems to me that this issue is not within the scope of the claimant's grounds of challenge.”

Mark Smulian

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