What legal advice has the department received on the implications of the Malcolm and Coleman cases?



Legal advisers within the Department provided advice on the implications of the Malcolm judgment on the operation of the disability-related discrimination provisions in the Disability Discrimination Act 1995. They advised on the impact of the judgment for disabled people: that it is now more difficult for a disabled person to demonstrate a case of less favourable treatment which arises from the person's disability. They also provided advice on the options for disabled people to pursue a claim of discrimination under other provisions of the Act: the direct discrimination and reasonable adjustment provisions.


They have also advised on the options for legislating to ensure that protection from disability-related discrimination meets the policy objective that existed prior to Malcolm. That objective is to provide an appropriate balance between enabling a disabled person to demonstrate relatively easily, that they have experienced less favourable treatment for a reason related to their disability and the opportunity for the duty holder to justify that treatment.


In preparing options for legislation, the Department sought legal advice from external Counsel, who is experienced in discrimination law, on the operation of indirect discrimination and the potential implications if it were applied to disability. The advice informed the proposal, which the Government consulted on recently, to adopt the concept of indirect discrimination for disability in the Equality Bill.




Departmental legal advisers and Treasury Solicitors provided advice on the circumstances of the case of Coleman v Attridge Law and on the Government's evidence to the European Court of Justice (ECJ). Treasury Solicitors with the assistance of the Department instructed external Counsel to provide advice to the Government on its evidence.


Departmental legal advisers provided advice on the Advocate General's Opinion and on the implications of the ECJ's judgment for domestic disability discrimination legislation. In particular, they advised that the judgment means that the UK disability discrimination legislation does not now meet the requirements of the EU Framework Employment Directive in respect of providing protection, in employment and vocational training, from direct discrimination or harassment that arises from a person's association with a disabled person. They also provided advice on the fact that the Court's judgment would have direct effect in respect of associative direct disability discrimination against, or associative disability-related harassment of, an employee of a public entity. Further advice was provided on the "Marleasing" principle, under which domestic tribunals and courts could read their own interpretation of the ECJ judgment into domestic law; the issue of claims for Francovich damages; and the possible actions of the Employment Tribunal in Ms Coleman's case.


What criteria is used to decide what to pay for in Access to Work claims; and what is the financial cap, if any?


Access to Work (AtW) is available to fund the additional costs that someone may have at work as a consequence of their disability.


The first step with any claim to Access to Work is to identify exactly what support an individual needs to be able to do particular job. In some cases this can be done by the AtW adviser in discussion with the customer and where appropriate their employer, for example deciding if someone needs travel to work help.


Where support cannot be easily identified in this way the AtW adviser will arrange for an assessment of the support needs by an appropriate external expert. The assessment report produced includes details of the actual type of equipment or other support that would be most beneficial.


In all cases AtW will fund the most cost effective solution that will provide the minimum level of support. This does not mean that AtW will only fund the cheapest support but equally it would not be a cost effective use of the limited AtW budget to fund the most expensive support if something less costly would be adequate and allow the individual to effectively do their job. There is no financial cap on any support - AtW will fund what is required within these guidelines.


Once funding has been agreed with the customer the actual support is purchased by either the customer or their employer. If a customer (or employer) would like to buy more expensive support they are free to do that but would have to pay the additional costs themselves. In some areas AtW or the employer themselves may have a call-off contract for certain types of support. In those cases AtW would usually fund up to the normal contract price. The individual is not bound to use the contractor but would have to fund any additional costs themselves if they chose a more expensive supplier.


In the case of BSL interpreters Jobcentre Plus has provided AtW advisers with guidance about appropriate levels of interpreter skill and numbers of interpreters required depending on the situation. So for example someone working in a sensitive job where accuracy of interpretation is crucial (for example someone dealing with members of the public in potentially difficult situations ) would usually require an interpreter with the highest level of qualifcation. Similarly AtW will fund 2 interpreters when that is appropriate due to the length or complexity of meetings etc. AtW never advocate the use of untrained interpreters. The level of interpretation is something that the AtW adviser will decide in discussion with the customer and employer.


In the following circumstances the employer or the customer is expected to contribute towards the costs:


- if the individual has been with the same employer for more than 6 weeks and the funding is for equipment or adaptations to premises we expect the employer to pay all costs below 300 and 20% of the costs between 300 and 10,000. AtW pays 100 per cent of the costs over 10,000 and all of the costs for a support worker or travel to work


- if the employer would gain a more general business benefit from the support, for example a piece of equipment that could be used by all employees, we would negotiate a contribution from the employer


- if the customer would be able to use the support outside work, for example an electric wheelchair that they could use at home, we would negotiate a contribution from the customer.


AtW is not intended to remove the employer's responsibilities under the Disability Discrimination Act or Health and Safety legislation, nor is it intended to fund support at home as this is the responsibility of the Local Authorities.


AtW cannot be used to fund medical aids as these are the responsibility of the NHS. There are a couple of exceptions: in - ear hearing aids (the NHS only fund out of ear hearing aids which are not suitable for all types of work) and some more specialist electric wheelchairs which again are not normally available through the NHS.