High Court refuses fresh inquest in welfare benefits case
13 October 2021
In Dove v HM Assistant Coroner to Teesside and Hartlepool & Anor [2021] EWHC 2511, the High Court considered the State’s obligations under article 2 ECHR with respect to those in receipt of welfare benefits as well as the scope of coronial inquiries both where article 2 is and isn’t engaged. Although it was argued that failings by the Department of Work and Pensions were relevant to a death by suicide, a fresh inquest was refused in the circumstances.
Background Facts
The Applicant’s daughter, Ms Whiting suffered with spinal conditions and numerous mental health conditions. As a result, she was awarded employment support allowance [ESA] under the ‘support group’ category.
In September 2016, Ms Whiting began reassessment. By way of questionnaire she requested a home assessment, indicating she rarely left the house due to mobility issues and anxiety. This was not passed to the Centre for Health and Disability Services [CHDA] who decided that she was to attend a face-to-face appointment on 16th January 2017. On 6th February 2017, Ms Whiting was informed that her ESA would be stopped as she had not shown ‘good cause’ for her failure to attend and had not therefore demonstrated limited capacity for work.
On 21st February 2017 Ms Whiting, was tragically found unresponsive and was later pronounced dead. An inquest concluded she had died by suicide as a short-form conclusion. The Coroner told attendees that she had noted that there were ongoing discussions with the Department of Work and Pensions, but that it was not her function to question any decisions made by the Department.
However, a report by the Independent Case Examiner [ICE] in February 2019 (following a complaint made before the inquest had concluded) subsequently found that there had been “significant failings” by the Department in the events leading up to Ms Whiting’s death.
The Applicant applied to the Court under section 13 of the Coroners Act 1988 for an order quashing the Coroner’s determination and directing that a new inquest take place.
Legal Framework
Whilst article 2 ECHR imposes a negative duty on the State not to take life without unlawful justification, it also imposes in some circumstances an ‘operational duty’ requiring the State to take necessary steps to safeguard life.
Under section 5(1) Coroners and Justice Act 2009 [the 2009 Act], the purpose of a coronial investigation is to ascertain answers to the following:
(a) who the deceased was;
(b) how, when and where the deceased came by his or her death;
(c) the particulars (if any) required by the 1953 Act to be registered concerning the death.
Subsection (3) prohibits the coroner from expressing opinion on other matters save where necessary in order to avoid future breaches of Convention rights. The scope of the inquiry will therefore depend on whether article 2 is engaged. In accordance with the decision in R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1, in cases where article 2 is not engaged, the ‘how’ under subsection (1)(b) shall be directed solely to the physical means of death rather than the wider circumstances. In contrast, in accordance with the decision in R (on the application of Middleton) v HM Coroner for Western Somerset [2001] EWHC Admin 1043, ‘how’ should be expanded to mean ‘by what means and in what circumstances’.
Grounds for a Fresh Inquest
A fresh inquest was sought on 4 grounds:
- There has been an insufficiency of inquiry by the Coroner at common law;
- There has been an insufficiency of inquiry by the Coroner under article 2;
- Fresh evidence is now available which may reasonably lead to the conclusion that the substantial truth about how Ms Whiting died was not revealed at the first inquest; and
- A different conclusion would be likely at a fresh inquest.
Ground 1: Insufficiency of Inquiry at Common Law
Counsel for the Applicant submitted that regardless of whether the inquest should have been convened under article 2, as a matter of common law it is often necessary and in the public interest to inquire beyond the immediate cause of death and that the public interest and the interests of Ms Whiting’s family demanded that a new inquest should investigate the Department’s conduct and the failings which were subsequently identified by the ICE report require public exposure to ensure accountability and to prevent future deaths.
Mrs Justice Farbey held that she did not accept the Court was required by public interest to take a wider enquiry into the department’s policies and practices in decisions to withdraw benefits. She held these were matters for ministers and Parliament and the primary purpose of an inquest was to determine how a person had died. Even though the Coroner also has the ancillary power to make a Prevention of Future Deaths Report, it was held that this “does not imply that a coroner becomes the guardian of the public interest in matters relating to social security”, as the Coroner has “no specialism in these matters and is not well-equipped to undertake such an inquiry” and other forms of scrutiny exist, including the complaints process to the ICE (which is itself amenable to judicial review) and the First-tier Tribunal (Social Entitlement Chamber).
Ground 2: Insufficiency of Inquiry under Article 2
It was further submitted that article 2 was engaged as the State had an ‘operational duty’ to take necessary steps to safeguard Ms Whiting’s life.
Mr Nicholls submitted that this case fell within Lord Dyson’s indicia set out in Rabone v Pennine Care NHS Trust [2012] UKSC 2, [2012] 2 AC 72, namely:
(i) the department had assumed responsibility for welfare and safety by providing Ms Whiting with an income necessary to survive in order to prevent an identified risk to her mental health;
(ii) Ms Whiting was particularly vulnerable; and
(iii) the risk posed by the withdrawal of benefits was exceptional.
(i) Assumption of Responsibility
Mrs Justice Farbey held there was no authority to support Mr Nicholl’s position that, by providing welfare benefits, the Department had assumed responsibility for preventing the suicide of those in receipt of it. She held the Department was bound to apply the law as set down by Parliament and was therefore bound to allocate funds to those meeting the statutory criteria for ESA and not to allocate funds to those who don’t meet the criteria. Despite recognising the “shocking nature of what happened”, it was held that it was “something of a leap from a flawed – even badly flawed – work capability assessment to the engagement of article 2 rights.”
Although it was pointed out that the Department’s own guidance provided that, where a claimant with mental health difficulties failed to attend an assessment, the Department should phone to ask why the person did not attend and consider a “safeguarding” visit and that there was no evidence either of these steps were taken in this case, it was held that the use of the word “safeguarding” did not constitute an assumption of responsibility in the sense understood by the law.
(ii) Vulnerability
Mrs Justice Farbey accepted Ms Whiting was vulnerable but held this was not sufficient to establish operational duty, as it was held that the unifying feature of operational duty was the assumption of responsibility (which was held not to have been satisfied).
(iii) Level of Risk
Mrs Justice Farbey did not consider the risks posed by withdrawal of benefits to be exceptional as they did not arise from an inherently dangerous situation which a person would not ordinarily assume.
As Lord Dyson did not regard the indicia as ‘sure guide’ in all cases, Mrs Justice Farbey further considered whether the criteria for an arguable breach of the systems duty under article 2 was made out. However, it was held that in the absence of a concrete suggestion as to how, in the circumstances of this case, the scope of the Department’s duties or their implementation were deficient, the fact that there were failings identified in the ICE report, together with concerns by Parliamentarians about the numbers of those who have died through suicide after being refused benefits and evidence of other Prevention of Future Deaths Reports recorded by Coroners in other inquests was not sufficient to give rise to an arguable breach of the systems duty. It was instead held that “on the evidence before the court, the Department’s errors amounted to individual failings attributable to mistakes or bad judgment” which were not systemic or structural in nature.
Ground 3: Further Evidence
A report by a consultant psychiatrist from November 2019 which stated that there was likely to have been a causal link between the Department’s failings outlined in the ICE report and Ms Whiting’s state of mind immediately before her death was adduced to the Court, which it was argued indicated that a fresh inquest may result in a different outcome.
However, Mrs Justice Farbey accepted the submission made in response that the causal link which the psychiatrist drew related to Ms Whiting’s state of mind and not to her death, did not go as far as to say that the Department’s decision to stop Ms Whiting’s ESA caused her to take her own life and did not rule out other stressors as causative of her suicidal state or her suicide. On this basis, it was held that “it would be extremely difficult for a new inquest to conclude that the Department caused Ms Whiting’s death.”
Ground 4: Potential for a different conclusion by a Coroner
For the reasons given in relation to the preceding grounds, Mrs Justice Farbey held that the inquiry had complied with the requirements in Jamieson by establishing the physical means of death and was unlikely to conclude differently in this respect. It was therefore held a new inquest was not necessary.
Comment
In a climate where the effectiveness of the welfare system is being heavily criticised, this case raises important issues regarding the UK’s obligations under article 2 ECHR in this context.
Whilst Rabone appeared to widen the ambit of cases where an operational duty could be said to exist, in this judgment Mrs Justice Farbey has made clear the scope for this being engaged may be limited. Further, the decision indicates that the “how” question may be relatively narrowly drawn in cases where article 2 is not engaged.
Nicola Logan is a pupil barrister at 1 Crown Office Row. She tweets @NicolaLoganLaw.
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