Sheffield Citizens Advice and Law Centre – Written Evidence (EQD0102)

Sheffield Citizens Advice and Law Centre – Written Evidence (EQD0102)

1. I am the Equality Rights Supervisor at Sheffield Law Centre (now Sheffield Citizens Advice and Law Centre)[1]. I advise and represent clients affected by discrimination in the field of goods, facilities & services (GFS).
2. This response therefore focuses on Question 10 – whether the current enforcement mechanisms available to private individuals are accessible and effective for people with disabilities, employers and providers of goods, facilities and services.
3. Sheffield Law Centre was part of the original project, funded by the Disability Rights Commission (DRC), to promote awareness of rights under the Act and to assist with the consequent casework.
4. In evidence to the Select Committee considering the proposed Equality Bill in 2008[2], I stated,

“This post was formerly funded by the Disability Rights Commission in partnership with the Law Centres Federation, purely to focus on GFS disability discrimination cases.  It was clear that people were finding their way to enforce their rights in the employment context (albeit with difficulty) but only minimally in the GFS field.  Very few cases ever reached the courts and those in the higher courts are in single figures.”

5. I identified the principal obstacles to people enforcing their rights in the GFS field as:

1)      Lack of awareness of their rights

2)      Difficulties related to disability in carrying through the level of preparation and stress in taking on a court case.

3)      Actual costs in county court litigation compared to tribunals, where parties bear their own costs

4)      The risk of overwhelming costs from court litigation, wholly outside the scale of money experienced in practice by individuals.

5)      The perception of the court - which many people still think of as a place of punishment

6)      Variability and unpredictability of the likely approach of judges who are not experienced in discrimination cases.

7)      The fact that individuals are often reacting (e.g. to a dismissal) in employment cases, whereas generally GFS cases require positive action.

8)      Awards are so low that neither legal aid [certificates] nor conditional fee arrangements are generally available for GFS cases.

9)      Very few solicitors are experienced in, or willing to take, GFS cases.

6. I also stated that:

“The consequent lack of experience of the DDA amongst solicitors, advisers, organisations of disabled people and the courts means that few cases are reported in the media.  In turn, members the public have little understanding of what is and what is not required by the DDA, despite a generally high level of awareness of its existence.

In this respect, awareness of discrimination law (especially the DDA) reflects awareness of the Human Rights Act: understanding of the actual framework of rights is still far lower than the level of misconceptions.  This does damage to the validity of the legislation - to the extent that popular stories of people claiming “discrimination” and “human rights” are seen as something that doesn’t apply to “ordinary people”.  Given the large proportion of the population who are protected by the DDA (an estimated 20%), further work clearly needs to be done to bring home the reality of everyday rights to those who feel they are unprotected.”

7. I concluded:

“I believe the public benefits from seeing actual cases reported in the media.  There need to be more cases brought before the courts and positive stories told in the media.  These need not be ground-breaking legal battles, just ordinary peoples’ stories of individual needs.”

8. To a large extent, this remains true. Whilst numbers in the employment tribunals held up - at least until the reduction in legal aid and introduction of tribunal fees – the number of cases in the county court remains low.  The barriers to enforcing unlawful discrimination remain very high.  A generalised awareness of equality law exists but there is still little understanding by service providers of what they have to do in practice.  Few solicitors in private practice are prepared to run discrimination cases.
9. Since then, my work at the Law Centre continued under the Equality Act 2010.  The EHRC continued grant funding initiated by the DRC, albeit with some administrative difficulty.
10. In addition, we won legal aid contracts in the newly defined “disability discrimination” sub-category. This meant we could advise and assist eligible members of the public and could obtain legal aid certificates for representation where the merits of the case justified it.
11. In 2012, the Government removed the EHRC’s power to fund voluntary sector organisations like ours.  We also lost our legal aid funding in April 2013 after LASPO, when the vestiges of legal aid for discrimination cases were reserved to the mandatory telephone gateway and the three national firms that could tender to provide this advice.  As a local law centre, we were too small an organisation to take on a national contract.
12. Following the loss of these key sources of funding, we were fortunate to retain some funding from Sheffield City Council specifically for discrimination advice. In addition we ran a few cases on low-budget conditional fee agreements.
13. Throughout, our aim was to run “strategic cases” – i.e. to consider how best to bring out wider benefits for society and not just for the individual concerned.  The following are some examples of cases I have worked on at the Law Centre and are intended to illustrate our approach in advancing the law:

Royal Bank of Scotland installs wheelchair access after legal action

14. In Royal Bank of Scotland Group v Allen, we represented a teenager who used a wheelchair.  The main branch of the Royal Bank of Scotland was inaccessible as both entrances were up steps. We helped the client bring a claim in the county court and this escalated when the bank resisted.  The court ordered an expert surveyors’ report, which the bank was required to pay for.  The bank indicated it would not improve its access even if the court found against it, so the court ordered an injunction requiring it to carry out the necessary works identified by the expert report. This case was ultimately funded by the EHRC.
15. The bank appealed unsuccessfully to the Court of Appeal.[3]
16. This was the first time a court had ordered an injunction requiring changes to physical features.  The Court of Appeal set out the steps that courts must take when considering a reasonable adjustment case. The Court also confirmed that the test of what comprises a reasonable adjustment is to be decided objectively by the court and is not just a review of the subjective decision of the service provider.
17. The case gained considerable publicity and the consequent reporting of it assisted the negotiation of many other access improvements by Law centres and other activists all over the country.

The anticipatory duty and provision of evidence

18. The case of Finnigan v Northumbria Police[4] arose from a police drugs raid on a profoundly deaf man whose first language was BSL. The police involved knew him personally and knew him to be deaf but did not engage interpreters.
19. I worked on this case with colleagues at Newcastle Law Centre, something which was assisted by links that LCN had fostered throughout the network. Although the case ultimately failed for the individual client, the Court of Appeal set out an important judgement on the anticipatory duty to make reasonable adjustments and on the correct application of the burden of proof.
20. This was a case where the transcript of proceedings revealed the difficulties faced by the court, individuals and representatives when grappling with provisions of the DDA and EA.  The trial judge went wrong by losing sight of the anticipatory nature of the duty. 
21. The Court of Appeal’s judgement clarified that the court must first identify the policy, practice or procedure (PPP under the DDA, or provision, criterion or practice (PCP) under the EA) before determining what adjustments were reasonable.  The duty was on the public body to provide the court with evidence of the PCP and of the adjustments made to it. Arguably, the same will apply to any service provider.
22. On the burden of proof, the Court of Appeal made clear that “once a potential reasonable adjustment has been identified by the claimant, the burden of proving that such an adjustment was not a reasonable one to make shifts to the defendants”
23. The court also held, for the first time, that BSL is a separate language in its own right.
24. This case was funded by legal aid.

Court interpreters

25. In a related case, the client’s appeal was heard soon after the court of Appeal’s decision in Finnigan. Embarrassingly, the court service failed to book BSL interpreters for the client’s appeal hearing, due to the difficulties with the outsourced interpreting contract. The court service agreed to pay £500 to the client plus the wasted legal costs.
26. In the wake of both of these cases, the police force agreed to review its procedures for engaging BSL interpreters.

Thomas Cook and package holidays

27. We assisted Mrs Campbell in two cases[5]. In both, Thomas Cook failed to make very simple adjustments. In one case, staff required her to stand for a long period in a queue when they could have found her somewhere to sit. In the second, staff failed to arrange accessible transport.
28. Mrs Campbell pointed out that these package holidays provide a basic and popular holiday for thousands of older or disabled people every year, so the need to make such adjustments affects very many people. 
29. However, Thomas Cook raised a number of legal issues about the territorial extent of the Equality Act 2010 outside the geographical limits of England and Wales, the interplay with the EU Mobility Regulation[6] and the Montreal Convention, which may prevent a discriminating service provider from having to pay damages in some air travel cases. These were issues where there was no existing authority.
30. The holiday company was ultimately unsuccessful in both appeals and Mrs Campbell received the damages she was owed in both cases.  In addition, she has taken her custom elsewhere.
31. These two cases were run with the benefit of legal aid.  Mrs Campbell had a third holiday case after LASPO came into force, when we could no longer obtain legal aid. This led to particular difficulties getting advice and the claimant never got formal advice on this third case.
32. First, the mandatory telephone gateway was inaccessible to the claimant, who does not use a telephone for disability-related reasons.  On a threat of judicial review[7], the operators relented and agreed to pass her case to the advice providers.  However, the remote advice provider required her to provide detailed written statements of case before offering any advice. In the end, Mrs Campbell did not hear anything more from the advice provider and gave up at that point.

Concessionary travel and mobility passes

33. In this PSED case, we represented two disabled clients in a challenge to a decision of South Yorkshire Integrated Transport Authority to cut the discretionary element of concessionary travel[8]. This meant a reduction of early morning (before 0930) travel for disabled people on buses trams and trains across South Yorkshire.
34. The PSED was the sole ground of challenge. The complainants argued that the elected members of the Authority had not been briefed on – and had therefore not taken into account – the legal duties in the PSED in the same way that they had been briefed on their other legal duties.  This made the decision defective, notwithstanding that all the elected members had a generalised understanding of equality and a general appreciation of the difficulties affecting their own disabled constituents.
35. Underlying this failure was a sense that the Equality Act was merely a statement of good practice and easily complied with as long as officers and members did their job honestly and fairly.
36. This case came about because Sheffield Law Centre had good contacts with community organisations and was able to react promptly to the decision.  We put a detailed letter before action to the Authority so that the case settled by agreement shortly after the claim was formally issued in the High Court.  The settlement benefited all 34,893 disability pass holders across South Yorkshire as well as a further 230,385 older people’s pass holders.
37. Most significantly, the nature of the challenge meant that the Authority and its officers became much more alert to the need to comply with the PSED and practical steps as to how it was to be done.  Since then, advice on the compliance with the Equality Act has become a standard part of reports to the Authority, with the same status as advice on other legal requirements.

Other cases

38. In other cases, we have been able to promote positive change for the wide public as a result of litigation action.

ESA sanctions

39. In a case involving ESA sanctions, the DWP amended its practice by issuing improved guidance[9] to decision-makers, requiring them to take better account of the ways disability affects ESA claimant

Post office account statements

40. In a case involving payment of social security into post office accounts for claimants with no bank account, the Post Office accepted the need to provide statements at more frequent intervals for some people with mental health problems.

Sheffield City Hall

41. A case on physical access for wheelchair users led to a range of work improving access at Sheffield City Hall and some positive publicity was arranged in conjunction with the manager.[10]

Discrimination in the Scouts

42. A case against the Scout Association gained publicity in the national press[11] after an autistic boy was excluded from his local scout group.  Following the case, we invited the County Commissioner to consider how the good practice that existed in other local scout groups could be shared so as to avoid such cases in the future.

Douglas Johnson

Equality Rights Supervisor

Sheffield Law Centre

4 September 2015