High Court denies new inquiry into welfare case

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October 13, 2021 by Nicola Logan

In Dove v HM Assistant Coroner at Teeside and Hartlepool & Anor [2021] EWHC 2511, the High Court considered the state’s obligations under Article 2 of the ECHR towards recipients of social benefits as well as the scope of coronary inquests both where Article 2 is and is not is not engaged. Although it was argued that the breaches of the Department of Work and Pensions were relevant to a death by suicide, a further investigation was denied in the circumstances.

Substantive facts

The applicant’s daughter, Ms. Whiting, suffered from spinal problems and numerous mental health issues. As a result, she received an employment support allowance [ESA] in the “support group” category.

In September 2016, Ms. Whiting began a reassessment. Using a questionnaire, she requested an assessment of her home, indicating that she rarely leaves the house due to mobility issues and anxiety. This was not forwarded to the Center for Health and Disability Services [CHDA] who decided that she had to show up for a meeting in person on the 16the January 2017. The 6e In February 2017, Ms Whiting was informed that her ASE would be arrested because she had failed to show “just cause” for her absence and therefore had not demonstrated limited work capacity.

The 21st February 2017, Ms Whiting was tragically found unconscious and was subsequently pronounced deceased. An investigation concluded that she had committed suicide as an abbreviated conclusion. The coroner told attendees that she noted that there were ongoing discussions with the Department of Work and Pensions, but that it was not her job to question decisions made by the department.

However, a report from the independent case reviewer [ICE] in February 2019 (following a complaint filed before the end of the investigation) subsequently found that there had been “material breaches” by the ministry in the events that led 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 decision and ordering a new inquest.

Legal framework

While Article 2 of the ECHR imposes a negative obligation on the State not to take life without unlawful justification, it also imposes in certain circumstances an “operational obligation” requiring the State to take the necessary measures. to protect life.

Under section 5 (1) of the Coroners and Justice Act 2009 [the 2009 Act], the purpose of a coronary investigation is to determine responses to the following:

(a) who was the deceased;
(b) how, when and where the deceased came by death;
(c) the particulars (if any) required by the 1953 Act to be recorded regarding the death.

Subsection (3) prohibits the coroner from expressing his opinion on other matters, except as necessary to avoid future violations of Convention rights. The extent of the investigation will therefore depend on whether or not Article 2 is initiated. In accordance with the decision of R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1, in cases where section 2 is not engaged, the “how” referred to in paragraph (1) (b) should relate only to the physical means of death rather than to the broader circumstances. On the other hand, in accordance with the decision of R (at Middleton’s request) v HM Coroner for Western Somerset [2001] Administrator EWHC 1043, “How” should be broadened to mean “by what means and under what circumstances”.

Reasons for a new investigation

A new investigation was requested for 4 reasons:

  1. There was an insufficient investigation by the common law coroner;
  2. There was insufficient investigation by the coroner under section 2;
  3. New evidence is now available which can reasonably lead to the conclusion that the substantial truth about Ms. Whiting’s death was not revealed during the first investigation; and
  4. A different conclusion would be likely upon further investigation.

Ground 1: Insufficient investigation at common law

Counsel for the plaintiff argued that, regardless of whether the inquiry should have been called under section 2, at common law it is often necessary and in the public interest to investigate – beyond the immediate cause of death and that the public interest and the interests of Ms. Whiting’s family demanded that a further investigation into the conduct of the department and the misconduct which were subsequently identified by the report of the ICEs require public display to ensure liability and prevent future deaths.

Justice Farbey said she does not accept that the Court is bound by the public interest to conduct a broader inquiry into the policies and practices of the ministry in decisions to withdraw benefits. She argued that these matters were the responsibility of ministers and Parliament and that the main objective of an investigation was to determine how a person died. Although the coroner also has the ancillary power to report on the prevention of future deaths, it was held that this “does not imply that a coroner becomes the guardian of the public interest in matters of social security”, as the coroner has “is not specialized in these matters and is not well equipped to undertake such an inquest” and other forms of oversight exist, including the process of complaints to the ICE (which is itself subject to judicial review) and the Social Entitlement Chamber.

Reason 2: Insufficient investigation under Article 2

It was further argued that Article 2 was engaged because the state had an “operational duty” to take the necessary measures to protect Ms. Whiting’s life.

Mr Nicholls argued that this case fell within Lord Dyson’s clues set out in Rabone v Pennine Care NHS Trust [2012] UKSC 2, [2012] 2 CA 72, to know :
(i) the Ministry had assumed responsibility for welfare and safety by providing Ms. Whiting with an income necessary for her survival 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

Madam Justice Farbey held that there was no authority to support Mr. Nicholl’s position that, in providing social assistance benefits, the department had taken responsibility for preventing the suicide of those who received it. . She held that the ministry was required to apply the law as established by Parliament and therefore was required to allocate funds to those who met the ESA statutory criteria and not to allocate funds to those who did not. did not meet the criteria. Despite the recognition of the “shocking nature of what happened”, it was deemed to be “a leap from a faulty – if not very faulty – work capacity assessment to the commitment of the rights of article 2 ”.

Although it was noted that the Ministry’s own guidelines provided that when a claimant with mental health issues did not show up for an assessment, the Ministry was to call to ask why the person was not attending and consider a “protection” visit and there was no evidence that either of these measures was taken in this case, it was found that the use of the word “safeguard” did not constitute an assumption of responsibility within the meaning of the law.

(ii) Vulnerability

Madam Justice Farbey admitted that Ms.Whiting was vulnerable but felt that this was not sufficient to establish operational duty, as the unifying characteristic of operational duty was held to be the taking of responsibility (which did not was considered satisfied).

(iii) Risk level

Justice Farbey did not consider the risks posed by the withdrawal of benefits to be exceptional because they did not arise from an inherently dangerous situation that a person would not normally assume.

As Lord Dyson did not view the indices as a “sure guide” in all cases, Justice Farbey further considered whether the criteria for an arguable breach of the systems obligation under section 2 were established. However, it was held that in the absence of a concrete suggestion as to how, in the circumstances of the case, the scope of the ministry’s functions or their implementation was deficient, the fact that there were shortcomings identified in the ICE report, as well as concerns of parliamentarians over the number of people who have committed suicide after being denied benefits and evidence from other prevention reports of future deaths recorded by coroners in other inquests were not sufficient to give rise to an arguable breach of duty of the systems. Rather, it was held that “on the evidence presented to the tribunal, the department’s errors amounted to individual failures due to errors or poor judgment” that were not of a systemic or structural nature.

Reason 3: Additional evidence

A report by a consulting psychiatrist from November 2019 which indicated that there was likely a causal link between the department’s failings described in the ICE report and Ms Whiting’s state of mind just before her death was presented to the Court, which was argued indicated that a new investigation might lead to a different result.

However, Farbey J. accepted the argument made in response that the causal link established by the psychiatrist was related to Ms.Whiting’s state of mind and not to her death, not going so far as to say that the The ministry’s decision to stop Ms Whiting’s ESA had caused her to commit suicide and did not rule out that other stressors were the cause of her suicidal state or suicide. On this basis, it was ruled that “it would be extremely difficult for a new investigation to conclude that the ministry caused the death of Ms. Whiting.”

Land 4: Potential for a different finding by a coroner

For the reasons given in connection with the foregoing reasons, it was held that the interests of justice did not call for a new investigation.

Comment

In a climate where the effectiveness of the social protection system is strongly criticized, this case raises important questions regarding the UK’s obligations under Article 2 ECHR in this context.

While Rabone seemed to broaden the scope of cases where an operational obligation could be said to exist, in that case Justice Farbey made it clear that the scope of that obligation could be limited. In addition, the decision indicates that the question of “how” can be defined relatively narrowly in cases where Article 2 is not engaged.

Nicola Logan is a student lawyer at 1 Crown Office Row. She tweets @NicolaLoganLaw.


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