Terms of reference: investigation and assessment into the Secretary of State for Work and Pensions

Statutory investigation and assessment under Section 20, Section 31 and Schedule 2 to the Equality Act 2006 into the Secretary of State for Work and Pensions by the Equality and Human Rights Commission

Terms of Reference pursuant to paragraphs 3 and 4 of Schedule 2 to the Equality Act 2006

1. The Commission suspects that the Secretary of State may have committed unlawful acts of the following nature:

1.1. Breach of duty, contrary to sections 20–21, 29 and 109 of the 2010 Act, to make reasonable adjustments, including anticipatory reasonable adjustments, while making health assessment determinations. In particular the Commission suspects:

a. that the Secretary of State may be failing to comply with a duty to make reasonable adjustments, given that the policy guidance itself may put disabled claimants with mental impairments at a substantial disadvantage, in comparison with claimants who do not have such impairments;

b. that the policy guidance may give rise to a failure to make reasonable adjustments by the assessors who follow the guidance; and

c. that there may have been cases of a failure to make reasonable adjustments by assessors applying a standard approach, giving rise to a substantial disadvantage to disabled claimants with mental impairments. This detriment is likely to include, but is not limited to, the outcome of the assessment or decision on eligibility of the benefit, and the process leading to any such decision.

1.2. Breach of duty under section 111 of the 2010 Act, not to cause or induce contraventions. The Commission suspects that the policy guidance may cause or induce contraventions by the Secretary of State through his assessors when making decisions about reasonable adjustments, and anticipatory reasonable adjustments, while making health assessment determinations.

2. The Commission will assess the Secretary of State’s compliance with the Public Sector Equality Duty (PSED) when developing, implementing and monitoring the policy guidance, particularly in relation to understanding the impact of the policy guidance on disabled claimants with mental impairments.

3. Having regard to section 8 of the 2006 Act, and to the matters set out in the Commission’s Strategic Plan 2022–25, the Business Plan 2023–24 and 2024–2025, and the Litigation and Enforcement Policy, the Commission has decided to investigate under section 20 of the 2006 Act whether or not the Secretary of State has committed and / or is committing an unlawful act, and to assess under section 31 of the 2006 Act whether or not the Secretary of State has complied and/or is complying with the PSED.

4. The investigation will consider whether the Secretary of State breached (and/or is breaching) the duty to make reasonable adjustments and the duty in section 111 of the 2010 Act in the manner set out in paragraph 1 above.

5. The assessment will consider whether the Secretary of State failed (and/or is failing) to comply with the PSED in the manner set out in paragraph 2 above.

6. The investigation and assessment will examine the period from January 2021, or earlier if relevant,  necessary and proportionate, to the end of the evidence gathering phase which shall conclude within a proportionate time.

7. In conducting the investigation, the Commission will take such steps as it considers appropriate, but such steps may include the following:

7.1. A review of all relevant policy guidance issued by the Secretary of State to determine whether the Secretary of State has committed the unlawful acts specified in these Terms of Reference.

7.2. An invitation to provide evidence extended to such third-party organisations as the Commission regards as appropriate in all the circumstances and considering the purpose of the investigation.

7.3. A detailed investigation of the manner in which the Secretary of State made health assessment determinations, in relation to a sample of claimants for PIP, ESA and UC who have mental impairments.

7.4. The Commission shall assess the evidence to determine whether it is satisfied that unlawful acts have occurred in accordance with section 21(1)(b) of the 2006 Act, and shall also consider whether to make any recommendations.

8. In conducting the assessment, the Commission will assess the manner in which the Secretary of State has complied with section 149 of the 2010 Act in relation to understanding the impact of his policy guidance on disabled claimants with mental impairments. If the Commission thinks the Secretary of State has failed to comply with the duty, it may give a compliance notice. We will assess compliance of the Secretary of State when:

8.1. Developing the policy guidance which directs the decision making by assessors about health assessment determinations.

8.2. Implementing the policy guidance and other relevant procedures amongst assessors from within DWP and via contracted agents.

8.3. Monitoring the impact, reviewing the policy guidance and procedures, and making policy changes between January 2021, or earlier as relevant, and the end of the evidence gathering phase.

9. The Commission will make arrangements for the Secretary of State to make representations, and shall consider any representations made, in accordance with the 2006 Act. In its approach to the Secretary of State the Commission will at all times act fairly and reasonably.

10. The Commission will publish these Terms of Reference, a report of its findings and may make recommendations in accordance with paragraph 16 of Schedule 2 to the 2006 Act.

11. These Terms of Reference are prepared in accordance with paragraphs 3 and 4 of Schedule 2 to the 2006 Act. All other rights and obligations under the 2006 Act are unaffected.

​12. For the purposes of these Terms of Reference the following definitions apply:

12.1. ‘the 2006 Act’ means the Equality Act 2006

12.2. ‘the 2010 Act’ means the Equality Act 2010

12.3. ‘assessors’ means the individuals involved in conducting health assessments on behalf of the Secretary of State, (including but not limited to the individuals conducting consultations and medical examinations within the health assessment process, and the individuals deciding how particular claimants’ health assessments should be conducted)

12.4. ‘the Commission’ means the Commission for Equality and Human Rights (commonly known as the Equality and Human Rights Commission)

12.5. ‘the duty to make reasonable adjustments’ means the duty imposed on a service provider and/or a person who exercises a public function to make reasonable adjustments for disabled people pursuant to sections 20, 21, 29 of and Schedule 2 to the 2010 Act

12.6. ‘the PSED’ means the Public Sector Equality Duty imposed on a service provider and/or person who exercises a public function to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations pursuant to section 149 of the 2010 Act

12.7. ‘ESA’ means Employment and Support Allowance provided pursuant to the Employment and Support Allowance Regulations 2008, and the Employment and Support Allowance Regulations 2013

12.8. ‘health assessment’ means an assessment by which a claimant is assessed to determine whether the claimant has limited or severely limited ability to carry out activities in respect of PIP, or as having limited capability for work or limited capability for work related activity in respect of ESA or UC, under regulations 8–9 of the Social Security (Personal Independence Payment) Regulations 2013; regulations 21, 23, 36 and 38 of the Employment and Support Allowance Regulations 2008; regulations 17, 19, 33 and 35 of the Employment and Support Allowance Regulations 2013; and regulations 43–44 of the Universal Credit Regulations 2013

12.9. ‘health assessment determinations’ means determinations about whether a consultation or medical examination is required as part of a person’s health assessment; and if a consultation or medical examination is required, the format for it

12.10. ‘mental impairment’ has the meaning in section 6 of the 2010 Act

12.11. ‘PIP’ means Personal Independence Payments provided pursuant to the Social Security (Personal Independence Payment) Regulations 2013

12.12. ‘the policy guidance’ means policy or guidance issued by the Secretary of State to guide the conduct of health assessments, and includes, but is not limited to, Personal Independence Payment (PIP) assessment guide for assessment providers (last updated on 3 April 2023); Work Capability Assessment (WCA) Handbook (20 December 2022); and WCA Filework Guidelines (2 April 2019)

12.13. ‘Secretary of State’ means the Secretary of State for Work and Pensions his employees, agents or contractors; which includes employees, agents or contractors of the Department for Work and Pensions.

12.14. ‘UC’ means Universal Credit provided pursuant to the Universal Credit Regulations 2013

13. Any communications concerning this investigation and assessment may be sent by the Secretary of State in confidence to an email address to be provided by the Commission.

14. Any press or media queries may be directed to media@equalityhumanrights.com

15. The Commission will be unable to respond to submissions or questions from the general public about the investigation and assessment. Information about who we will invite to give evidence to our investigation and assessment, and how we will gather that evidence can be read here.