The family of a disabled man who starved to death after his benefits were wrongly removed by the Department for Work and Pensions (DWP) hope to appeal a court’s “baffling” ruling that it was “reasonable” to take such action.
The high court last week rejected a claim that DWP had acted unlawfully by not making further enquiries about Errol Graham’s mental health before it cut off his employment and support allowance (ESA) in October 2017.
It also rejected the claim that DWP’s safeguarding policy was unlawful.
The judicial review claim was brought on behalf of the family by Alison Turner, the fiancée of Graham’s son.
Graham had missed a work capability assessment (WCA) and had failed to respond when DWP tried to contact him by phone and in person, while he had cut off all ties with his family, who had no idea that his benefits had been removed.
DWP went ahead and stopped his ESA without trying to contact his family or public bodies, even though he had been receiving incapacity benefit, and then ESA, for many years as a result of enduring mental distress.
Turner’s lawyers had argued that it was unlawful to expect claimants like Errol Graham to show they had “good cause” to miss a WCA or fail to complete an ESA questionnaire, and that DWP should change its safeguarding policy to ensure that it did more to look into cases where claimants with significant mental distress were not engaging with them.
The court heard that DWP had now changed its policy so that its decision-makers must consider contacting a next-of-kin or other agencies, and must hold a case conference, after two failed safeguarding visits to the claimant’s home.
Errol Graham’s family believe much more still needs to be done.
But the judge, Mr Justice Bourne, said this was “a significant improvement to the policy”.
He added: “It should help to prevent tragic outcomes like that of Mr Graham, though I cannot say what if any effect it would have had in his case.”
He also said in his ruling that DWP had not been aware that Errol Graham had been sectioned in 2015.
The judge said it was “reasonable” for a public body in DWP’s position to be “satisfied on the basis of the enquiries made that it possessed the information necessary for its decision”, and that it was lawful for DWP to place the burden of proof on the claimant.
He added: “It conducted the inquiries which it considered reasonably necessary to find out whether there was a ‘good cause’ for his failure to attend the assessment, and Mr Graham sadly did not engage at all.”
He dismissed the family’s judicial review claim.
Turner said she had been “stunned” by the ruling.
She said: “It’s almost blaming Errol for his own death.”
She said DWP should have contacted the police to carry out a welfare check on him when it heard that he had not been engaging with his GP surgery.
She said: “They would have found Errol and I don’t doubt they would have sectioned him.
“People are saying the judgement doesn’t make sense. It doesn’t. I just find it extremely baffling.
“You can’t expect Errol to understand what was being asked of him. He wasn’t going to open those letters.
“He was sectioned [in 2015] because he wasn’t deemed safe or capable of caring for himself.”
She added: “I am hoping there is enough to go for an appeal. The law is there to protect people, not put them at risk.”
Errol Graham’s body was discovered on 20 June 2018 when bailiffs arrived at his Nottingham council flat to evict him for non-payment of rent.
When his body was found, he weighed just four-and-a-half stone, there was no food in his flat and no credit on his gas or electricity meters, while an unsent letter to DWP was found which pleaded: “Please judge me fairly.”
Tessa Gregory, a partner at the family’s solicitors, Leigh Day, said: “We are deeply disappointed by the judgment which fails to ensure the DWP takes simple steps to protect the lives of vulnerable benefit claimants.
“We are considering an appeal and Errol’s family will continue to fight for a welfare system that supports rather than endangers lives.”
A DWP spokesperson said: “Our sincere condolences remain with Mr Graham’s family.
“While we welcome this judgment, we continue to work to improve the service that we provide to our most vulnerable claimants.”
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