Dove v HM Assistant Coroner for Teesside and Hartlepool [2021] EWHC 2511 (Admin)
Facts
Ms Whiting had spinal conditions since her early twenties, which gave her back pain, required surgery, and regular painkillers. She also had a history of mental health problems (depression, drug dependence, and emotionally unstable personality disorder) and a history of suicidal ideation. From 2006, Ms Whiting was receiving income support. In 2012, ESA was being introduced. The Department of Work and Pensions (“the Department”) awarded Ms Whiting ESA for 2 years and categorised her as being in the support group. In 2014, Ms Whiting was reassessed. Her support category ESA was extended until 2016.
In September 2016, Ms Whiting needed reassessment. She requested a home visit due to her mobility problems and anxiety. While it was not disputed that this should have occurred, the Department failed to make the referral.
In December, the Department wrote to Ms Whiting, requiring her to attend an appointment. She did not attend. The Department sent a letter seeking the reasons for her non-attendance, but took no steps to obtain further information through a telephone call or a ‘safeguard visit’. In January 2017, Ms Whiting returned the form, explaining that she did not receive the appointment letter and was currently housebound with pneumonia, so requested that the Department contact her GP. They did not. Yet in February, the Department decided that she did not show ‘good cause’ for her non-attendance, there was no evidence of limited capability for work, and stopped Ms Whiting’s ESA from 7 February 2017 without considering her mental health problems.
On 10 February 2017, Ms Whiting, ill in hospital, called the Department. They read the decision letter to her and advised her to request a reconsideration with her medical evidence. She did so on 13 February. A Citizens Advice Bureau (CAB) representative wrote to the Department on 15 February to seek a reconsideration and explain that Ms Whiting was not always able to deal with her post due to her anxiety and depression. However, on 21 February, Ms Whiting was found dead. The medical cause of death was recorded as being the synergistic effects of morphine, amitriptyline, and pregabalin, and cirrhosis.
On 25 February, the Department completed its mandatory reconsideration, and upheld its decision. But on 23 March, it revised its decision and reinstated Ms Whiting’s ESA from January, due to the 15 February letter they received from the CAB.
At the inquest touching upon Ms Whiting’s death, the Coroner referenced the ESA problems, but gave a short-form conclusion of suicide.
CAB complained about the Department’s handling of Ms Whiting’s case, which culminated in an ICE report criticising the Department. The criticisms included failing to refer Ms Whiting for a home visit for her reassessment, failing to call her/undertake a safeguard visit, and failing to contact her GP.
Dr Turner undertook a psychiatric report and concluded that Ms Whiting would have experienced distress and shock at the news of the cessation of her ESA, and was likely to have suffered a substantial depressive impact with activation of suicidal ideas, due to her presenting with BPD. Further, “there was likely to have been a causal link between [the Department’s] failings outlined in the…ICE report and Jodey’s state of mind immediately before her death.” [36]
Application and judgment
The Applicant’s four grounds for an order to quash the Coroner’s determination and to direct that a new inquest take place were as follows:
- 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 – insufficient inquiry at common law
The Applicant argued that it was in the public interest to inquire beyond the mere immediate cause of death – it may include acts and omissions directly responsible for the death. In circumstances where there was no investigation into the flawed handling and determination of Ms Whiting’s ESA claim, a new inquest was in the public interest, particularly to require public exposure of the failings identified in the ICE report to ensure accountability and to prevent future deaths.
The court found that the Coroner’s inquiry was sufficient, both on the public interest test and on the Wednesbury test (that the Respondent argued was the appropriate test). The inquest “considered Ms Whiting’s medical background, the medical cause of her death, the circumstances in which she was found dead and (to the extent that it could arise from the evidence before her) the apparent reasons for her suicidal mental state” [71]. Further, the Coroner heard evidence from Ms Whiting’s family about the impact of the cessation of ESA. The court also iterated that there is a review system in place, the third tier of which is an ICE report that investigates failings and therefore hold the executive to account. It is not a role for the Coroner.
Ground 2: article 2 of the Convention
Alternatively, the Applicant submitted that the evidence disclosed an arguable breach of the Article 2 operational duty: “(i) the Department had assumed responsibility for Ms Whiting’s welfare and safety by providing her with the income necessary to survive and had done so in order to prevent an identified risk to her mental health if her benefits were withdrawn; (ii) Ms Whiting was particularly vulnerable; and (iii) the risk to her which the withdrawal of her benefits had posed was exceptional” [78].
The court did not accept that the Department assumed responsibility. ‘Safeguarding’ in their internal guidance did not import such assumption of responsibility. Rather, it was used to convey practically, in everyday language, the actions that decision-makers should take. It was undoubtedly accepted that Ms Whiting had significant physical and mental health problems that made her particularly vulnerable, but this alone did not establish an operational duty, and without assumed responsibility, there is no general obligation to prevent suicide.
The Applicant relied on the systems duty, using a National Audit Office report, which stated that the Department had received four PFD reports from coroners since 2013, of which two were related to suicide. It also investigated 69 suicides of benefit claimants since 2014‑15. The Applicant submitted that from these numbers, it can be inferred that the system did not function adequately. Further, the ICE report identified numerous failings, giving rise to an arguable breach of at least some part of the systems duty.
The court dismissed this ground, having found that the failings identified were individual, not systemic, and that Article 2 was not engaged.
Ground 3: fresh evidence
The Applicant submitted that the new ICE report might reasonably lead to the conclusion that the first inquest did not reveal substantial truth about Ms Whiting’s death, so the report rendered a new inquest “necessary or desirable in the interests of justice” [90].
The court accepted that the ICE report found significant failings but disagreed that an inquest should adduce substantial evidence of those failings. Dr Turner’s report merely identified a causal link between the ICE report failings and “Ms Whiting’s state of mind immediately before her death” – it was not concluded that the cessation of the ESA caused her to commit suicide, and Dr Turner did not rule out other causes. The causal link to death is therefore speculative. Consequently, the court did not accept that the interests of justice required a new inquest in light of the fresh evidence.
Ground 4: potential for a different conclusion by a coroner
It was argued that the new evidence made it more likely that a new coroner would return a different conclusion (i.e. a narrative conclusion identifying the Department’s role in Ms Whiting’s death, and any relevant acts/omissions contributing to it). The court however found that the inquest conducted was fair, dealt with the legal grounds and evidence before it, and complied with Jamieson requirements. It was not required to do more, so a new inquest was not in the interests of justice.
Comment
Although this case is somewhat unique in its progression, this judgment will be useful for practitioners dealing with suicide cases after benefits are ceased.
Firstly, provision of benefits to vulnerable people does not amount to an assumption of responsibility. Moreover, any guidance the relevant department produces should not be read with the “precision of law” [81]. This might mean interpreting terms as “safeguarding” with a practical rather than legal eye.
Secondly, it confirms the high bar for Article 2 being engaged – knowledge of vulnerability alone is insufficient. Instead, vulnerability must be in a particular context such as in Maguire or Rabone and there needs to be a clear assumption of responsibility.
Lastly, this case shows the clarity required for causation. Links between failings and the “state of mind immediately before her death” was insufficient. Practitioners should therefore remain astute to the significance of the expert’s wording used in respect of causality, and challenge experts on whether they can support causality as to death, or merely the state of mind prior to it.