Universal credit, mental health and reasonable adjustments
Emily Williams and Dee Lynch explore the duty on the DWP under the Equality Act 2010 to make reasonable adjustments for disabled claimants. Reasonable adjustments are not part of social security law and cannot be considered by benefit tribunals. CPAG does not give legal advice about disputes under the Equality Act – this article aims to provide information and practical tips in a benefit context, which may assist when advising disabled claimants.
Introduction
The Equality Act 2010 came into force over 10 years ago. With the recent announcement from the Equality and Human Rights Commission that it will seek to enter into a legally binding agreement with the DWP
1‘EHRC taking action to improve the treatment of disabled benefit claimants’, Equality and Human Rights Commission news item, 19 April 2022, available at to ensure the DWP meets its legal obligations to make reasonable adjustments for disabled benefit claimants in accordance with the Act, together with the forthcoming managed migration of people claiming legacy benefits to UC,
2‘Managed move of claimants to universal credit set to restart’, DWP press release, 25 April 2022, available at gov.uk; ‘Managed migration to universal credit – an irresponsible gamble’, CPAG blog post, 4 July 2022, available at cpag.org.uk/news-and-blogs now is a good time to review some of the protections the Equality Act offers to disabled people.
Disability and the Equality Act 2010
The Equality Act 2010 protects people from discrimination in relation to nine ‘protected characteristics’, including disability. Under the Act, the DWP is prohibited from treating a person unfavourably on the basis of her/his disability (unless that treatment can be shown to be a proportionate means of achieving a legitimate aim). Additionally, the DWP has a duty to make reasonable adjustments in the provision of its services and the exercise of its powers. A failure to do so is itself a form of discrimination.
The duty to make reasonable adjustments includes the requirement that ‘if a provision, criterion or practice of the [DWP] puts a disabled person at a substantial disadvantage compared to a non-disabled person, then the [DWP] must take such steps as it is reasonable to have to take to avoid the disadvantage’. There is no set definition of what is ‘reasonable’ – each case should be considered on its facts. There is no obligation for a public body to take steps which would ‘fundamentally alter’ the nature of the service it is providing.
3Sch 2 para 2(7) Equality Act 2010The Equality Act definition of disability
4s6 Equality Act 2010 is wider than that used when assessing eligibility to disability benefits. Claimants need to have a physical or mental impairment that has a substantial and long-term negative effect on their ability to do normal daily activities. ‘Substantial’ means more than minor or trivial, and ‘long term’ means the condition has lasted or will last 12 months or more. ‘Normal daily activities’ means things that people do regularly such as shopping, using the phone, washing and dressing, preparing and eating food, housework, walking and travelling.
Many claimants with mental health issues and learning disabilities will fall within this broad definition and should therefore have the protections available under the Equality Act – including provision of reasonable adjustments.
What is happening in practice?
CPAG knows, from our research
5CPAG, Making Adjustments? The experiences of universal credit claimants with mental health problems, 24 February 2022, available at cpag.org.uk/policy-and-campaigns with universal credit (UC) claimants with mental health conditions and from reports to our Early Warning System,
6cpag.org.uk/policy-campaigns/early-warning-system that reasonable adjustments may not routinely be considered or offered by the DWP.
This is contrary to the DWP’s own internal guidance
7Delivering Equality for Customers – access to DWP services, DWP guidance, para 40, available at which states: ‘Every time that there is customer contact by phone, online or in writing, staff must actively seek to find out if the customer needs additional support or a reasonable adjustment.’
Key areas in which reasonable adjustments may be needed
There is no definitive list of reasonable adjustments. The DWP guidance gives examples of common reasonable adjustments. Stages of the UC claimant journey where reasonable adjustments may be required are:
•Initial application: most people make a UC claim online, but this is not appropriate for everyone. Claimants who need to make a claim via the telephone, for example due to a learning disability, can do so (with the agreement of the DWP)
8Reg 8(2) Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Payment (Claims and Payments) Regulations 2013, No.380 and arguably should be able to do so as a reasonable adjustment.
•Conditionality and the claimant commitment: claimant commitments, agreed as a condition of receiving UC, should contain requirements that are reasonable and achievable, and tailored to the individual claimant. There is provision in the UC regulations for claimants in the all work-related requirements group with a ‘physical or mental impairment’ to be allowed to undertake reduced hours of work search activity’.
9Reg 88 Universal Credit Regulations 2013, No.376 However, this does not always happen.
10One claimant in our research project reported being placed on 35 hours of work search despite informing her work coach of serious mental illness including frequent hospital admissions. Requesting a reduction in work-related requirements as a reasonable adjustment may help a disabled claimant be able to meet her/his work related requirements and avoid a sanction.
•Work focused interviews: Attending in-person job centre appointments is difficult for some claimants with mental health conditions and can cause significant distress. Failure to attend or participate in work-focused interviews is the main cause of UC sanctions, representing 99 per cent of sanctions in the year up to January 2022.
11DWP, Benefit Sanctions Statistics to January 2022 (Experimental), 17 May 2022, available at If going to the job centre causes claimants distress due to their disability, they should be offered an appropriate reasonable adjustment. Examples might include: a telephone appointment, a private interview room at the job centre, or being seen as soon as they arrive.
•Work capability assessments: Many claimant difficulties with work capability assessment arrangements could be mitigated by reasonable adjustments, such as being given an appointment at a certain time or day, or by conducting a home visit when necessary.
Assisting claimants with disabilities
When advising claimants with disabilities, advisers should check the following.
•Is the claimant able or likely to be able to successfully apply for and maintain her/his UC?
•Are there any barriers or problems in her/his communication or ability to access UC?
•Does the claimant know about the right to a reasonable adjustment?
•If UC has been awarded, have required reasonable adjustments been provided?
•Have DWP staff recorded this, in line with DWP policy, to ensure the claimant does not need to repeatedly ask for the same adjustment? and access services by the provision of reasonable adjustments. Exercising these Equality Act rights may alleviate some of the problems disabled claimants encounter with UC. Advisers should use the usual social security law to challenge DWP decisions. Failure to provide required reasonable adjustments should be addressed via the appropriate channels noted.
Claimants and advisers are encouraged to request reasonable adjustments, citing the DWP guidance, to enable disabled claimants to access DWP services. Requests for reasonable adjustments and changes to practice can be made on the UC journal, via the UC helpline and in discussions with the work coach.
Using reasonable adjustment arguments – a note of caution
Social security law and disability discrimination law are two separate spheres. Legal questions relating to a failure to provide reasonable adjustments cannot be considered through the usual channels of mandatory reconsideration and appeal. The correct way to address concerns regarding failures to provide reasonable adjustments is through the DWP complaint process and, in some cases, through use of judicial review pre-action protocols.
12CPAG has relevant materials in our judicial review project at cpag.org.uk/welfare-rights/judicial-review/judicial-review-pre-action-letters/work-capability-assessments. Advisers can seek advice and use judicial review pre-action template letters, some of which include reasonable adjustment arguments. In England and Wales, the county court deals with cases of disability discrimination but there are strict time limits and cost implications.
If your client has a social security legal challenge such as mandatory reconsideration or appeal, and you have also made a complaint or taken a pre-action protocol in relation to reasonable adjustments, it may be worth mentioning this in your submissions to the DWP so that decision makers are aware of all the relevant circumstances surrounding the issue.
Example
Ms Smith, who has autism and cannot tolerate noisy, busy environments, claims UC and requests appointments via telephone (rather than face to face) as a reasonable adjustment. Ms Smith is given in-person job centre appointments. Ms Smith submits a formal complaint to the DWP about failure to provide her with a reasonable adjustment to enable her to access UC and the Jobcentre Plus service.
Meanwhile Ms Smith is sanctioned for failing to attend or participate in a mandatory appointment at the job centre. She challenges the sanction via a mandatory reconsideration, explaining she tried to attend but then fled before she saw the work coach due to experiencing acute and overwhelming mental and emotional distress. To give context to the mandatory reconsideration, she mentions briefly that she had requested telephone appointments as a reasonable adjustment and has submitted a complaint as the request was not granted.
In summary
The Equality Act confers significant powers in protecting disabled individuals from discrimination, and helps them to overcome barriers and access services by the provision of reasonable adjustments. Exercising these Equality Act rights may alleviate some of the problems disabled claimants encounter with UC. Advisers should use the usual social security law to challenge DWP decisions. Failure to provide required reasonable adjustments should be addressed via the appropriate channels noted.