Introduction
The use of private contractors by the Department for Work and Pensions (DWP) to carry out benefits assessments has been a source of considerable public and political debate. Companies such as Atos Healthcare (now operating as Independent Assessment Services) have been tasked with conducting Work Capability Assessments (WCAs) and Personal Independence Payment (PIP) assessments to determine eligibility for state support. Many claimants, however, have reported that these assessments are flawed, leading to what is often described as the "underscoring" of their condition, resulting in the wrongful refusal of benefits. This essay will analyse the legal avenues available to a hypothetical claimant, ‘Stephen Ray’, who feels he has been unfairly treated as a result of a flawed assessment by Atos. This response will argue that while the title of the assignment suggests a direct claim against Atos, the primary and most effective legal remedy for an individual in this position is not a private law action in tort or a public law challenge via judicial review, but rather the statutory appeals process established by Parliament.
The Statutory Appeal Process: The Intended Remedy
The principal route for challenging a DWP decision on benefits is the statutory appeals process. This is the mechanism specifically designed by Parliament to address disagreements over entitlement. The process is governed primarily by the Social Security Act 1998. When a claimant like Stephen Ray receives a decision from the DWP denying or reducing his benefits based on an Atos report, he cannot immediately go to court. The first step is to request a ‘Mandatory Reconsideration’ (MR) from the DWP itself (Social Security Act 1998, s 9). During the MR, a different DWP decision-maker will review the original decision, the Atos assessment report, and any new evidence the claimant provides.
If the decision remains unchanged after the MR, the claimant then has the right to appeal to an independent tribunal, the First-tier Tribunal (Social Security and Child Support). This is a crucial stage. The tribunal is an independent judicial body and is not bound by the original DWP decision or the Atos report. It hears the case afresh, looking at all the evidence to decide whether the claimant satisfies the legal criteria for the benefit in question on the day the decision was made. The claimant can provide their own medical evidence and give oral testimony about how their condition affects them.
It is important to note that the legal challenge is against the DWP’s decision, not directly against Atos or its report. However, the flawed nature of the Atos report is central to the appeal. The tribunal will scrutinise the report and weigh it against other evidence. The high success rate for claimants at the tribunal stage has often been cited as evidence of poor quality initial assessments. For example, government statistics have consistently shown that a significant majority of PIP and ESA appeals that go to a tribunal hearing are successful (Ministry of Justice, 2023). This suggests that the tribunal system is a vital and effective, if stressful, route for correcting the ‘underscoring’ that claimants experience. Therefore, for Stephen Ray, the statutory appeal provides a direct and accessible way to have his case re-evaluated on its merits.
Judicial Review: An Unsuitable Avenue
A second potential avenue is judicial review. This is a High Court procedure where a judge reviews the lawfulness of a decision or action taken by a public body. A key preliminary question is whether Atos, a private company, can be subject to judicial review. The courts have held that private bodies performing public functions can be considered ‘public bodies’ for the purposes of judicial review (R v Panel on Take-overs and Mergers, ex p Datafin [1987] QB 815). As Atos is contracted by the DWP to carry out a core public function, it is likely that its actions would be reviewable.
However, even if Atos is a reviewable body, a judicial review claim by Stephen Ray would almost certainly fail for two main reasons. First, judicial review is a remedy of last resort. The courts will not normally grant permission for a judicial review claim where an adequate alternative remedy exists (Adler, 2021). As discussed above, the statutory appeal to the First-tier Tribunal is a comprehensive alternative remedy specifically designed for this situation. A court would insist that Stephen Ray exhaust this appeals process before it would even consider a judicial review.
Second, judicial review is concerned with the legality of the decision-making process, not the rights and wrongs (or merits) of the decision itself. A claim for judicial review must be based on grounds such as illegality (the decision-maker acted outside their powers), irrationality (the decision was so unreasonable that no reasonable decision-maker could have reached it), or procedural impropriety. A complaint of being ‘underscored’ is essentially a disagreement with the factual findings and judgements made by the assessor. This is a challenge to the merits of the decision, which is precisely the function of the First-tier Tribunal, not the High Court in a judicial review claim. Therefore, judicial review is not an appropriate vehicle for Stephen Ray’s grievance.
A Direct Claim in Negligence: The Problem of a Duty of Care
The title of the assignment, "Stephen Ray v ATOS", most closely resembles a private law claim in the tort of negligence. To succeed, Stephen would have to prove that Atos owed him a duty of care, that it breached that duty by performing a substandard assessment, and that this breach caused him loss (for instance, financial loss from refused benefits or a recognised psychiatric injury from the stress of the process). The greatest obstacle to such a claim is establishing the first element: the existence of a duty of care.
The courts are very reluctant to impose a common law duty of care on public bodies, or those performing public functions, where their actions take place within a statutory framework that provides its own system of redress (Conaghan and Mansell, 2020). The leading modern authority from the Supreme Court, Poole Borough Council v GN [2019] UKSC 25, affirmed that public authorities do not generally owe a duty of care at common law simply by exercising their statutory functions. While this case concerned a local authority’s child protection duties, the principles are applicable here.
Imposing a duty of care on Atos towards benefit claimants would be seen by the courts as inconsistent with the statutory scheme created by Parliament. Parliament created the DWP, the assessment process, and the tribunal appeal system as a complete code for determining and challenging benefit entitlement. To allow a parallel common law claim in negligence would risk undermining this structure. The courts would likely reason that it would not be ‘fair, just and reasonable’ (the third limb of the duty of care test from Caparo Industries plc v Dickman [1990] 2 AC 605) to impose such a duty. Policy concerns would also be significant. The courts would be wary of a ‘floodgates’ situation, where every disappointed benefit claimant could sue the assessment provider, leading to a large volume of litigation. There would also be a risk of assessors engaging in ‘defensive practices’, becoming overly cautious to avoid being sued, which could distort the assessment process in other ways. For these reasons, a direct claim in negligence against Atos for causing financial loss due to a poor assessment is highly unlikely to succeed, as the court would find no duty of care is owed.
Conclusion
In conclusion, while a claimant like Stephen Ray may feel that his grievance is with the "3rd party interloper" Atos, the English legal system does not provide a straightforward path to sue the assessment provider directly. A claim in the tort of negligence would likely fail at the initial stage, as the courts would not recognise that Atos owes a duty of care to claimants, pointing instead to the specific statutory regime intended by Parliament. Similarly, a public law challenge through judicial review would be barred by the existence of the statutory appeal route, which is considered the appropriate forum for challenging the merits of a benefit decision. The only viable and proper legal recourse for a claimant who has been ‘underscored’ is to engage with the statutory process: request a Mandatory Reconsideration and, if necessary, appeal to the First-tier Tribunal. Although this process can be long and stressful for vulnerable individuals, the high rate of successful appeals demonstrates that it is the correct and effective mechanism for correcting the very injustices that claimants like Stephen Ray experience.
References
Adler, M. (2021) A Very Short, Fairly Interesting and Reasonably Cheap Book about Administrative Justice. SAGE Publications.
Caparo Industries plc v Dickman [1990] 2 AC 605.
Conaghan, J. and Mansell, W. (2020) The Wrongs of Tort. 2nd edn. Pluto Press.
Ministry of Justice (2023) Tribunal Statistics Quarterly: April to June 2023. [Online] Available at: https://www.gov.uk/government/statistics/tribunal-statistics-quarterly-april-to-june-2023 (Accessed: [Date of access]).
Poole Borough Council v GN [2019] UKSC 25.
R v Panel on Take-overs and Mergers, ex p Datafin [1987] QB 815.
Social Security Act 1998 (c. 14).
