In this article, Richard Ive discusses the case of Dove v HM Coroner for Teesside and Hartlepool [2021] EWHC 1738 (Admin), which raises important questions relating to Article 2 (the right to life). On 11 June 2021, the Administrative Court heard procedural arguments concerning a late application by the Secretary of State for Work and Pensions to join, as an interested party, a claim pursuant to the Coroners Act 1988 s.13 for a further inquest into the death of a highly vulnerable woman who took her own life shortly after all her Department of Work and Pensions (“DWP”) benefits were stopped. The Secretary of State’s application was successful, providing her with the opportunity to make submissions at the full hearing heard by the Divisional Court on 22 June 2021.
Introduction
This article considers the judgment of the Administrative Court in relation to the hearing of 11 June 2021. That hearing was concerned with (i) the Claimant’s claim under the Coroner’s Act 1988 s.13 for the respondent coroner to conduct a further investigation and inquest into the death of her daughter, Ms Whiting, and (ii) the Secretary of State’s application to be joined as an interested party to that claim.
The full hearing was heard by the High Court on 22 June 2021. Judgment in relation to that hearing is still awaited.
Background
The case concerned the death of 42-year old Ms Whiting from suicide. For the present purposes, the Administrative Court’s judgment provides a concise introduction to the background [3]:
“The background facts are as follows. The Applicant is the mother of Ms Whiting. Ms Whiting had been in receipt of Employment Support Allowance (“ESA”) from 2012 to early 2017. She also received an award of a Personal Independence Payment from 29 July 2015, having previously been in receipt of Disability Living Allowance. In December 2016, the Department for Work and Pensions (the “DWP”) acting through the Centre for Health and Disability Assessment, required Ms Whiting to attend a work capability assessment. Following Ms Whiting’s non-attendance, the DWP wrote to her on 6 February 2017 to say that her ESA would be stopped. On 21 February 2017, Ms Whiting died of a drugs overdose, leaving notes that indicated that she had intended to take her own life.”
After the death of Ms Whiting, the Assistant Coroner for Teesside and Hartlepool opened an inquest. A short-form conclusion of suicide was reached. As summarised by Morris J, the Claimant challenged the Coroner’s ruling on four grounds [7]:
“The grounds for making the s.13 application are four fold. First, it is contended that the inquest involved an insufficiency of inquiry, as a matter of common law, on the grounds that the inquest did not investigate or determine the role of the DWP. Secondly, and importantly for present purposes, it is contended that the inquest involved an insufficiency of inquiry under the investigative duty imposed by Article 2 of the European Convention on Human Rights. The third and fourth grounds are based on fresh evidence, which is now available, which may reasonably lead to the conclusion that the substantial truth about how Ms Whiting died was not revealed and, further, that the fresh evidence indicates that a different conclusion is likely at a fresh inquest into Ms Whiting’s death.”
The case raised the question of “whether a state benefit agency can an owe a substantial operational (Osman) type duty to conduct benefits decision making so as to safeguard mentally unwell benefits claimants from the risk of suicide” [14]. This was the question of law to be considered by the Divisional Court on 22 June 2021.
The submissions of the parties
At the hearing of 11 June 2021, the Court heard submissions from (i) the Secretary of State for Work and Pensions, (ii) Her Majesty’s Coroner for Teesside and Hartlepool (“the Respondent”), and (iii) Mrs Joy Dove, Ms Whiting’s mother (“the Applicant”).
The submissions of the Secretary of State for Work and Pensions
The Secretary of State argued that she should be permitted to join the proceedings as an interested party, because (i) she had “a proper interest in the proceedings”, and (ii) “she would be able to assist the court on the important” “and novel” “issue as to whether there has been an arguable breach of Article 2 of the European Convention on Human Rights (i.e. whether it is arguable that the Secretary of State has breached the operational duty and the systems duty under Article 2).” Further, as observed by Morris J, the Secretary of State contended that, “if the Court were to accept the Applicant’s submissions, that would represent a significant extension of the substantive Article 2 duty” [12]. The Secretary of State also wished “to contend that that [Article 2] duty was not even arguably breached in this case” [13].
The submissions of the Respondent
The Respondent’s position was neutral. Morris J noted that the Respondent had “submitted that the Applicant’s case seeks to break new legal ground in relation to the Article 2 duties…” [14]. The Respondent’s other submissions were of a more practical and logistical nature – that there was no need for further evidence, and that “the one-day hearing should not be moved and, if need be, oral submissions from the Secretary of State should be limited” [17].
The submissions of the Applicant
The Applicant opposed the application on three grounds. Morris J summarised their position succinctly at [18]:
“In summary, first, the application is made far too late in the day and no explanation has been provided for why it is made so late; secondly, acceding to the application will compromise the 22 June hearing date and adjourning the case to a later date will cause significant distress to the Applicant; and, thirdly, the involvement of the Secretary of State is not required. The Respondent can adequately address the issues relating to the substantive breach of Article 2.”
As to the question of whether the Applicant’s case involved a development of the law in a significant way, Morris J noted at [19] that the Applicant had submitted that that would be a “considerable overstatement of the position”, because, in the Applicant’s view, the case “involves the application of existing principles to the facts of this case and the issue of the arguable breach of the substantive Article 2 duty is, essentially, a question of fact.”
Analysis
After considering the background and the submissions of the three parties, Morris J turned to his conclusions. He started by making it clear that he considered that the Secretary of State’s decision to participate “at the eleventh hour” was “inimical to the just and expeditious conduct of proceedings” [21].
Nonetheless, the Court considered at [24] that “the case, and in particular ground 2” raised “important and, potentially, novel issues on the scope of the State’s substantive Article 2 obligations in the context of providing welfare benefits.” Further, “even if the Court were to rule that those [substantive Article 2] obligations arguably arise, it would give rise to an investigative duty with substantial consequences, not only for future inquests but also… potentially in other fields of law.” [26]
In view of this, Morris J considered that it was “in the public interest” that the Secretary of State should be involved in the hearing fixed for 22 June 2021 [29]. This is because the claim raised the question of whether the Secretary of State had owed – and breached – her duty to Ms Whiting under Article 2.
Conclusions
The Court reached the following conclusions:
- The Secretary of State would be permitted to join the proceedings as an interested party [33].
- The Secretary of State’s submissions would be limited to the question of whether a state benefit agency can owe an Osman type operational duty to conduct benefits decision making so as to safeguard mentally unwell benefit Claimants from the risk of suicide. Further, it was held that the Secretary of State would not be permitted to rely on any facts or evidence not currently before the Court [34].
- There would be a strict timetable for submissions in relation to the hearing of 22 June 2021 [35].
- The Secretary of State would be limited to written submissions in respect of the hearing of 22 June 2021. This was to help ensure that the Secretary of State’s participation in the hearing did not, in any way, reduce the Claimant’s time to make oral submissions [37].
Comment
The judgment in respect of the hearing of 11 June 2021 was just the first procedural instalment in a case which raises interesting Article 2 questions and issues. As set out at the outset of this article, the substantive hearing followed on 22 June 2021. Judgment for that is still eagerly awaited, as this case raises potentially novel issues of law in relation to (i) whether the Secretary of State had a duty under Article 2, and (ii) whether she breached it.
If a fresh inquest into the death of Ms Whiting is granted, it is hoped that it may contribute to the prevention of further deaths in circumstances similar to those of Ms Whiting, as an investigation of the DWP’s role in Ms Whiting’s death may lead to a conclusion that was not revealed – or even considered – by the first inquest.
Once the judgment in relation to the hearing of 22 June 2021 has been handed down, further analysis of this case – and in particular the Divisional Court’s guidance in relation to Article 2 inquests – will be provided on this blog. Is new legal ground to be broken? Watch this space.
Inquests and Inquiries Law Blog 