Memorandum submitted by Douglas Johnson
1. I am the Equality Rights Worker at Sheffield Law Centre and I advise and represent clients affected by discrimination in the field of goods, facilities & services (GFS).
2. I am therefore restricting this response to issues around Equality in GFS although my comments on the case against the DWP may well be relevant to the Committee's examination of the public sector equality duty.
3. The aim of my post is to promote the rights of people affected by discrimination in GFS. By assisting people to take action, we aim to raise awareness of the rights and remedies of people facing discrimination. In practice, most of my work is around disability discrimination.
4. 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. 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.
6. 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 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. The following are examples of real cases I have brought but they demonstrate points that, I feel, are of general relevance. Where individuals are named, they have agreed to publicity of their cases.
Angela Sharrock v DWP
9. Sheffield Law Centre's press release is
available at: http://www.slc.org.uk/userfiles/file/press%20release_%20DWP%20discriminates%20against%20blind%20woman.pdf
10. Angela Sharrock is blind and complained of a number of aspects of her treatment, including the continuing failure to send her correspondence in a format she could read.
11. The DWP has put in place an extensive Disability Equality Scheme and action plans, as befits the sponsor Department of the DDA. Jobcentreplus has done the same. Nevertheless, when it came to the crunch - Ms Sharrock wanted her letters sent in an alternative format - Jobcentreplus failed completely.
12. The key feature of this case was the Jobcentre's / DWP's failure to address the real issue at any stage right up until the final hearing. Instead, it simply denied discrimination and continued to deny it for over 12 months that it took to litigate the court process. The reaction to our initial complaint was to deny and delay.
13. It is understandable - and indeed very positive in so many ways - that there is a stigma attached to an admission that discrimination has occurred in an organisation. However, it can also block any attempts to address the real issues.
14. This stance tends to be typical of many larger organisations, which rely on large-scale improvements but fail to pay attention to individual needs that are not accommodated by the general scheme. In my view, there needs to be greater scrutiny of how service providers work in practice. One method of scrutiny is for a body such as the Equality and Human Rights Commission (EHRC) to carry out sample checks or audits on organisations; another is to make the court process work more effectively and efficiently so that individuals have an effective avenue for their complaints.
Allen v Royal Bank of
15. A press article is available at http://www.thestar.co.uk/action/Bank-in-court-over-access.3663786.jp
16. The story of David Allen's battle against discrimination is simple: he uses a wheelchair and cannot mount the steps that are the only entrance to his bank.
17. When challenged, the bank was prepared to accept the factual truth of the total lack of access but to deny any responsibility for discrimination. Amongst a number of potential reasons why access had not been provided, the bank relied on a major scheme of building works. They were unable - or refused - to accept that their scheme had failed.
18. The key issue in this case is the practical difficulty of enforcing the complaint in the county court. The claim was for less than £5000 so would normally be dealt with in the "small claims" track. This track is relatively quick and allows access to the court for relatively small amounts of money without the risk of enormous costs if the case is lost: it is a sensible approach to keep costs proportionate to the amount in dispute. In fact, in this case, the court accepted the bank's argument that it merited a more formal and expensive procedure and allocated the claim to the multi-track. This meant the individual was exposed to a potential risk of very substantial costs - there is always a risk in any litigation. Costs in this case were estimated at up to £50,000 (or more if appealed). This was not a risk that any individual householder could sensibly take - whereas a bank can. The client would have had to withdraw the case if it were not for the exceptional backing of the Equality and Human Rights Commission.
19. Judgment has been given and is expected to be formally handed down shortly.
20. Neither legal aid nor a conditional fee arrangement (no-win no-fee) would be available in this case because awards for injury to feelings in discrimination cases are fairly low, even when they are made at all. A case like this shows why they are so rare.
21. Compare this situation with an employment tribunal where the risk of costs does not exclude claimants and matters can be examined on their merits. There would be some benefit to a "discrimination tribunal" where panel members with experience of discrimination law and the confidence to manage cases appropriately could examine complaints promptly and effectively.
"I get depressed when my cricket team loses"
22. The poorly-reasoned and largely incomprehensible decision of the House of Lords in Lewisham v Malcolm has set back the effective rights of disabled people not to be discriminated against by 20 years and is in clear contrast to the scholarly and logical reasoning of the Court of Appeal's judgement or that of Baroness Hale. I have described the Lords' judgment as five dissenting opinions and it is notable that the law reports seem to reach quite different conclusions as to the main thrust of the judgment. My experience is that courts are confused and inconsistent as to the current interpretation of the law.
23. I assisted a client who was a tenant of a large social landlord. He had both physical and mental disabilities, of which the main symptoms were isolation and reclusiveness. Because he could not manage to pursue his entitlement to social security and housing benefits, his landlord decided to evict him. The landlord accepted he was depressed but realised the financial incentive was to take possession action. He was thus brought to court rather than choosing to pursue a complaint. We assisted him to use the Disability Discrimination Act in his defence. The case was then stayed pending the House of Lords' decision in Lewisham v Malcolm.
24. Unfortunately, his disability was so severe that he was effectively unable to understand or comply with the court procedures or give evidence. There was a real question about his mental capacity to manage the court proceedings but the judge would not accept he was disabled, let alone lacking in capacity, without medical evidence. Unfortunately, the client was so unclear and reclusive that he only gave me even the name of his GP too late to get this evidence.
25. The judge did not seem to accept that depression was an acceptable form of disability and commented, "I get depressed when my cricket team loses." He also seemed to understand that Lewisham v Malcolm meant that no account could be taken of any disability unless the defendant could prove malicious motivation by the landlord.
26. It was not possible to appeal because the client was unable to give instructions.
27. The key issues in this case were:
27.1. The social housing provider's commercial decision to go ahead with eviction action, rather than address the client's needs, and without expecting any effective challenge in court
27.2. The client's lack of ability to take an effective part in the court proceedings and
27.3. The demonstrated need for judicial training.
28. From my experience in my previous post as a housing adviser, I am fully aware that the tenants who are actually most likely to lose their homes are those with mental health problems. They lose their homes, not because they do not have good grounds for a defence but because they cannot cope with the requirements of court procedures and the amount of preparation that is needed to prove their case.
29. As regards judicial training, it is clear that judges cannot be expected to have a good understanding of the principles and practice of discrimination law unless they see a reasonable number of cases in practice. Employment tribunal judges now have this experience. Judges of the court generally do not. I am not saying that all judges make bad decisions, merely that decisions are unpredictable because there are so few cases before the courts and judges do not have a measure of them.
A Parish Council discriminated against a wheelchair user.
30. Sheffield Law Centre's press release is available at: http://www.slc.org.uk/userfiles/file/Press%20release%20-%20Parish%20Council%20discriminated%20against%20wheelchair%20user.pdf
31. Mr and Mrs Upton had a complaint of discrimination against their local Parish Council. Mrs Upton is severely disabled; Mr Upton is her main carer. Mrs Upton was eventually successful in the county court after a long and protracted battle. Mr Upton, who had also suffered in practice, had no claim because he was the carer.
32. Mr Upton suffered discrimination because of his association with his wife. To outlaw discrimination further, it would be appropriate to give Mr Upton an equivalent right to raise his complaint and to take action on discriminatory behaviour.
33. The DDA was a significant step forwards for disabled people after many years of lobbying on the need to tackle the discrimination. It is clear that rights given by the DDA are useless if they cannot be enforced in practice.
34. From my experience of actual casework, I have seen that the principal obstacles to people enforcing their rights in the GFS field are:
34.1. Lack of awareness of their rights
34.2. Difficulties related to disability in carrying through the level of preparation and stress in taking on a court case.
34.3. Actual costs in county court litigation compared to tribunals, where parties bear their own costs
34.4. The risk of overwhelming costs from court litigation, wholly outside the scale of money experienced in practice by individuals.
34.5. The perception of the court - which many people still think of as a place of punishment
34.6. Variability and unpredictability of the likely approach of judges who are not experienced in discrimination cases.
34.7. The fact that individuals are often reacting (e.g. to a dismissal) in employment cases, whereas generally GFS cases require positive action.
34.8. Awards are so low that neither legal aid nor conditional fee arrangements are generally available for GFS cases.
34.9. Very few solicitors are experienced in, or willing to take, GFS cases.
35. With a view to clarifying the law on disability discrimination and making it fit for the purpose of achieving real rights for disabled people and, in the light of my own observations, I would make the following recommendations.
35.1. There is some benefit to exploring the creation of a discrimination tribunal for GFS cases. This could have powers to refer cases to the county court where appropriate, for instance as does the Leasehold Valuation Tribunal at present.
35.2. There is the need to test the operation of equality duties in practice for public bodies, and possibly other large organisations. Audits or spot checks on how a sample of individuals have been treated in practice may give a better understanding than mere confirmation that an overarching policy or scheme is in place. This might be a role for the EHRC, given appropriate resources.
35.3. Judicial training is to be encouraged.
35.4. Service providers need to accept that discrimination does happen and be prepared to investigate it rather than deny it. The DWP could start by looking in-house at the effectiveness of its procedures. There would be benefit in having guidance available to help organisations respond to complaints against them.
35.5. People who suffer discrimination because they are associated with a disabled person need to be included in the protection of the DDA. There need to be consistency across the strands of discrimination.
35.6. Legislative clarification of the uncertain position after the House of Lords decision in Malcolm v Lewisham. In my view, there needs to be effective protection against any unfavourable treatment where it relates to a disability, without having to identify a notional other person who had not suffered poor treatment.
35.7. Service providers who have acted in good faith, have taken the material circumstances into account, who have a substantial and rational reason for coming to their decision and have explained their decision, should be protected through the justification provisions.
35.8. The duty of reasonable adjustments is not affected.
35.9. It does not seem to me that indirect discrimination will address what is needed to guarantee the real rights disabled people because of the very wide range of different needs of people with different disabilities. Instead, the legislation should ensure a focus on individual needs.
35.10. Streamlining the DDA and making it consistent across all fields - employment, GFS and education - will improve understanding of the law. This should be with regard to the types of discrimination (direct, disability-related, etc) and justification.