Joy Dove and (1) HM Assistant Coroner for Teesside and Hartlepool (2) Dr Shareen Rahman and Secretary of State for Work and Pensions
Written by Sophie Watson
The High Court considered whether the Department for Work and Pensions (DWP) owed a duty under Article 2 to a benefits claimant who took their own life.
Background Facts
Jodey Whiting had been receiving Employment Support Allowance since 2012, and other state benefits prior to that.
The DWP reassessed Ms Whiting’s work capabilities and gave her an appointment in person, which she missed because of pneumonia and her mental health difficulties. The DWP rejected Ms Whiting’s explanations and refused her invitation to seek evidence from her GP.
The DWP then stopped Ms Whiting’s benefits, which the family alleged had caused or contributed to her suffering severe depression, in the course of which she took an overdose of prescription medication on 21.02.17 and died.
On 24.05.17 the Assistant Coroner held an inquest into her death. The Assistant Coroner refused to examine the actions of the DWP and recorded a conclusion of suicide.
Appeal to the High Court
Ms Whiting’s mother, applied to the High Court under section 13 of the Coroner Acts 1988 for an order quashing the Coroner’s determination and requesting that a new Inquest take place on the grounds of:
- Insufficiency of inquiry by the Coroner under common law;
- insufficiency of inquiry by the Coroner under Article 2;
- there was fresh evidence, namely an Investigation report documenting the numerous flaws in the DWP’s conduct and medical report making a causal link between their conduct and Ms Whiting’s suicide; and
- it was likely there would be a different conclusion if the new information was placed before a different Coroner.
The appeal was dismissed on all 4 grounds.
Mrs Justice Farbey considered the three categories in which a state is under an “operational duty” to protect an individual under Article 2, as set out in Rabone v Pennine Care NHS Trust [2012] UKSC 2, [2012] 2 AC 72:
- Where there was an assumption of responsibility by the state for an individual’s welfare and safety (including by exercise of control);
- the vulnerability of the victim; and
- the nature of the risk (i.e. if it falls outside of ordinary everyday risks).
The Court found that the DWP did not owe an operational duty to Ms Whiting to prevent her suicide.
Mrs Justice Farbey stated that the DWP were bound by law to allocate funds to those who met the statutory requirements. Their decisions to allocate ESA to Ms Whiting were based upon the statutory criteria alone and had no consideration of Article 2 requirements.
The applicant argued that the respondent’s failure to follow its own guidance and undertake a “safeguarding visit” following the missed appointment, gave rise to an operational duty. The Court rejected this argument on the grounds that this was only practical guidance, not law, and was not sufficient reason to extend Article 2 obligations.
The Court accepted that Ms Whiting’s physical and mental health problems made her particularly vulnerable. However, it saw no reason to depart from the decision in R (Maguire) v Blackpool and Fylde Senior Coroner [2020] EWCA Civ 738, [2021] QB 409, that there is no general obligation to prevent suicide in the absence of an assumption of responsibility. The Court made reference to the fact that Ms Whiting was not under the care or control of the state nor a minor to whom responsibility may automatically arise.
Finally, the Court found that the nature of the risk was not “exceptional” for the purposes of assuming an operational duty. It found that the risk posed to Ms Whiting by the withdrawal of her benefits did not arise from a dangerous threat to life but an ordinary hazard of life.
The Court also considered the systemic duty under Article 2 and found that there had been no breach as the failings were individual, not systemic.
Comment
The case reinforces the limited scope of the operational duty under Article 2. The starting position remains as is stated in Maguire that there is no general obligation in the absence of responsibility and that the test applied in Rabone is likely to remain the focus for future coroners to consider in similar circumstances.
It is important to note that this case relates principally to the operational duty under Article 2. The DWP, and other public authorities, remain under the primary duty to have in place appropriate systems to protect life.
