Evidence submitted by the Disability Rights
Commission
INTRODUCTION
The Disability Rights Commission ("the
DRC") is a statutory body established by the Disability Rights
Commission Act 1999 and its duties are outlined in section 2(1)
of that Act, as follows:
The Commission shall have the following duties:
(a) to work towards the elimination of discrimination
against disabled persons;
(b) to promote the equalisation of opportunities
for disabled persons;
(c) to take such steps as it considers appropriate
with a view to encouraging good practice in the treatment of disabled
persons; and
(d) to keep under review the working of the
Disability Discrimination Act 1995 and this Act.
The DRC provides advice and assistance, as well
as representation, to disabled people in respect of cases brought
under the Disability Discrimination Act.
Whilst the DRC provides information and advice
to thousands of people every year, it's legal funding is obviously
limited and so our legal strategy is specifically aimed at pursuing
certain strategic cases—we have the resources to take on
only approximately 70 legal cases per year. This results in many
people having to find representation from other sources. We refer
people to citizens advice bureaux, law centres and local solicitors.
ADVICE DESERTS
The Commission is concerned with ensuring that
disabled people can have access to advice and information regarding
their rights, as well as being able to fully exercise those rights—thereby
making positive inroads towards the Commission's vision of creating
a society in which all disabled people can participate fully as
equal citizens. Included in these rights is the right to effective
and accessible justice. Disabled people need to be aware of their
legal rights and should have equal access to professional advice
if they are to have the confidence to assert those rights. At
present though, disabled people only have access to a handful
of legal service and advice providers up and down the country
who are experienced in disability discrimination law and in many
areas there are none at all. Moreover, if those who are vulnerable
such as disabled people do not know where to turn for advice or
are faced with physical barriers to such advice, daily life inevitably
becomes more uncertain for them. As one problem leads invariably
to the emergence of others, such a downward spiral leads only
to social exclusion, bringing with it huge cost and misery both
for individuals and society.
It is of great concern that in the Law Society
Gazette of 29 January 2003, there is report about a recent
survey indicating that three quarters of firms with legal aid
franchises are regularly turning clients away, and some practices
are ceasing to so this kind of work altogether. Twenty per cent
of firms dropped contract work in the last year, with 15% dropping
employment and consumer and general contract—precisely the
areas into which Disability Discrimination Act claims would fall.
There are particular concerns regarding Wales:
the report "Snakes and Ladders: Advice and Support for Employment
Discrimination cases in Wales", the report of research commissioned
by the three equality commissions in Wales as well as the Legal
Services Commission [and a copy of which is attached], identified
a number of issues that militate against a seamless and effective
system of complainant aid in Wales. The main issues are (a) a
lack of information about rights and sources of advice; (b) weak
infrastructure for delivering advice, support and representation;
(c) lack of training and quality accreditation amongst major advice
providers; (d) poor system of referral and co-ordination between
agencies, including a failure to transfer expertise between agencies.
In particular, we understand that there is only one law centre
in Wales, based in Cardiff and seeing only people who live or
work in Cardiff, and the Legal Services Commission has awarded
only three contracts in employment law to firms in Wales. Problems
in such rural areas are exacerbated for disabled people as a result
of what is often inaccessible transport and the inability to travel
long distances to seek advice.
LEGAL AID
AND THE
EMPLOYMENT TRIBUNAL
Legal aid is not currently available for representation
in employment tribunals in England and Wales—thus leaving
disabled people reliant upon either citizens advice bureaux or
law centres (the latter being relatively few in number), or alternatively
upon solicitors operating conditional fee agreements. Whilst the
latter may be available for cases involving dismissals from employment,
where compensation may be considerable, those cases involving
the crucial matter of a claim for reasonable adjustments whilst
someone remains in the workplace will attract hardly any compensation
at all (merely damages for injury to feelings and for any injury
which has been caused by the failure). As a result, it is difficult
for disabled people to find solicitors who are willing to take
on such cases on a conditional fee basis.
This can leave a disabled applicant in considerable
difficulty: s/he may not be able to represent him/herself because
s/he is unable to understand the process because of a learning
difficulty or s/he is simply unable to get in the building because
s/he uses a wheelchair. Others may be disadvantaged by the absence
of information in accessible formats, such as in Braille or audio,
or by the lack of suitably qualified sign language interpreters
or other aids to communication.
In addition, the majority of disabled people
in employment are in low paid work and if they experience disability
discrimination they may not have the resources to take their case
to a Tribunal in any event.
LEGAL AID
AND THE
COUNTY COURT
Legal aid is rarely available for cases relating
to goods facilities or services provisions, which are brought
in the county court. These cases usually involve damages of less
than £5,000 and are thus heard in the small claims track;
yet they will involve crucial civil rights issues for disabled
people. The claims process is all too often inaccessible for disabled
people, both in terms of the physical barriers they face eg inaccessible
Court buildings and court forms not being in accessible formats
and in terms of the complicated legal process which they will
have to navigate.
This poor access to the legal system for disabled
people is well illustrated by the paucity of claims being brought
in the County Court under Part III. Where disabled people are
confronted with such barriers to their rights they are often dissuaded
from trying to exercise them and whilst the barriers remain, the
discrimination by service providers will also remain because they
are not deterred from their behavior by or subjected to the rigors
of the law. Obviously there are two strands to the access to justice
debate—changes and improvements need to come from within
the Courts and the legal system itself but there is also room
for change and improvement from outside the system as well eg
training in disability and disability awareness matters for providers
of legal and advice services. CLS partners ought to be equipped
to advise disabled people on applications to the County Court
including physical access, provide forms in accessible formats
and where necessary, provide advice and information on the DDA.
This is of course, not withstanding the Commission's desire to
see Part III claims heard within the more accessible setting of
the Employment Tribunal (as set out in our review of the legislation,
"Disability Equality: Making it Happen").
LEGAL AID
GENERALLY
Even where legal aid is available, the low income
which a person must be in receipt of in order to qualify for same
means that there will be those who have too much income to qualify
for legal aid; but too little to afford to pay a solicitor to
take what are often expensive cases (disability discrimination
cases often involve the use of expert witnesses—be it in
relation to the definition of disability; reasonable adjustment
duty; or level of compensation).
The Commission would welcome a salaried service
or increased provision of law centres. We would also wish to ensure
that these services are physically and procedurally accessible
to disabled people as well as having the expertise to advice in
the area of disability discrimination.
ALTERNATIVES TO
LEGAL AID
The Commission has established a conciliation
service, under the powers contained in s. 28 of the DDA (as amended).
Whilst this provides a useful and successful alternative to court
proceedings, expert advice is nevertheless required in order for
disabled people to benefit fully from the conciliation. Any "alternatives"
to legal aid should be properly funded and still provide expert
advice on individual rights.
COSTS
Any increase in legal aid should not, in the
Commission's view, lead to an increased capacity to award costs
against applicants in employment tribunals. Costs are likely,
as outlined above, to be a disincentive to disabled people in
bringing a claim under the Disability Discrimination Act, and
the Commission is aware of at least one case where costs were
awarded against an applicant for pursuing a claim of disability
discrimination where she had Multiple Sclerosis (MS). Costs were
awarded against her because her MS was held not to meet the definition
of disability within the Act (see Brady v Hair Cutter Ltd and
Rutherford, Case no. 2408792/01); yet the issue of definition
is the area which is most contentious under the Act, and often
most difficult to predict.
WORKING TOGETHER
The Commission is pleased to note the positive
benefits which CLS Partnerships can afford to disabled people—bringing
together organisations offering legal and advice services eg solicitors
in private practice, user led discrimination organisations, Citizens'
Advice Bureaux, Law Centres, representatives of the Legal Services
Commission and Local Authority in-house services. To ensure that
these services are fully accessible, it would be of immense benefit
to disabled people if all partners in a CLS partnership were trained
in disability access, awareness and etiquette and where appropriate,
had a working, generic knowledge and practical experience of the
Disability Discrimination Act 1995 (DDA).
DRC SCOTLAND
The Legal Aid system in Scotland has just started
a major review, not unlike this enquiry and with which our Scottish
office is involved. We have not therefore addressed any Scottish
specific issues in this response, although there will obviously
be common themes throughout the countries.
Catherine Casserley
Senior Legislation Adviser
Disability Rights Commission
January 2003
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