More on the limited reach of article 2 in inquests

If you practice extensively in inquests and in particular the more complex cases which involve the actions of state agencies who interacted with the deceased before their death, then you will be aware of the increase in arguments at PIR stage that Article 2 should be engaged.  When Article 2 is engaged then the scope of the inquest will be expanded to examine ‘in what circumstances’ the deceased came by their death as opposed to a narrower Jamieson style inquest asking ‘how’ the deceased died.

In the recent case of Dove v HM Assistant Coroner for Teesside and Hartlepool [2021] EWHC 2511 (Admin), [2021] All ER (D) 45 the Divisional Court declined to find that an arguable operational duty existed pursuant to Article 2 of the ECHR in respect of the decision making of the DWP around the deceased’s benefits before she died.  A factor that the family argued had contributed to her death.

The deceased, Ms Whiting was a 42 year old woman with a number of vulnerabilities in respect of her physical and mental health.  Prior to her death she was in receipt of a number of state benefits, including Employment Support Allowance (ESA).  As is usual for the receipt of ESA, Ms Whiting was required to attend a work capability assessment.  She failed to do so and on 6 February 2017 the DWP wrote to inform her that her ESA would be stopped.  On 21 February 2017 Ms Whiting overdosed on prescription medication.  Notes were found, indicating that she intended to take her own life.

An inquest into Ms Whiting’s death returned a short form conclusion of suicide.  Her family challenged the outcome on the following main grounds, seeking a fresh inquest under Section 13 of the Coroner’s Act 1988:

• There was an insufficient inquiry given the failure to investigate the role of the DWP in the death.
• The was an insufficient inquiry given that Article 2 was not engaged by the Assistant Coroner who heard the inquest.
• Fresh evidence had come to light which might lead to a different conclusion at a fresh inquest. This included an investigation within the DWP which was critical of their actions.

The Divisional Court rejected the arguments made by Ms Whiting’s family.  Importantly, in relation to the issue of Article 2:

• The key starting point as per the case of Rabone v Pennine Care NHS Trust [2012] UKSC 2 is to consider the assumption of responsibility. Here it was held that there was no assumption of responsibility. The operational decision making of the DWP in relation to the allocation of benefit payments was based on their own eligibility criteria which needed to be satisfied.  This had nothing to do with Article 2.  Whilst the DWP had guidance in place to visit applicants who did not attend for assessments, this was the provision of ‘practical’ guidance to aid those making decisions.  Such guidance did not impose upon the DWP any state responsibility for an applicant’s welfare.
• Whilst Ms Whiting was an applicant with vulnerabilities, this was not sufficient to impose an operational duty on the DWP to prevent her death in the absence of any wider assumption of responsibility in this regard.
• The nature of the risk to Ms Whiting was not exceptional such that there was a specific threat to her life. A real and immediate risk to life was therefore absent.
• There was a comprehensive framework for decision making in respect of ESA eligibility and payments and no systemic issue in respect of the delivery of this service by the state. Where any errors may have occurred by the DWP (as identified in the separate investigation by the DWP) then these should be considered individual failings, attributable to mistakes or bad judgment rather than any evidence of system breakdown.
• There was no arguable breach of any substantive Article 2 duty in this case and the Assistant Coroner had not been wrong to hold a Jamieson style inquest.

It is notable that in making their submissions, the family sought to rely on similar cases where Article 2 had been engaged.  The Divisional Court made it quite clear that decisions, even of the Chief Coroner, in other inquests were neither binding nor persuasive in the High Court.

The case also provides some assistance as to the limited role that other investigations may have within the remit of the Coroner’s Court.

On the central point around Article 2 however, this judgment marks yet another example of the narrowing of the application of Article 2 and the need to carefully ensure that possible operational failings are not dressed up as systemic failures and that for the application of the positive operational duty, the key test in Rabone remains the cornerstone.

Of course there is no automatic category of Article 2 case as we were reminded in the further recent case of R (Morahan) v HM Coroner for West London [2021] EWHC 1603 Admin and so the thorny issues around the engagement of Article 2 is likely to continue with the on-going development of case law in this area.

Emma Zeb
September 2021