Rights of disabled persons to accessible

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Rights of disabled persons to
accessible information, goods and
services
1
What are the basic private law
rights?
Equality Act 2010 contains prohibitions against:
 Direct Discrimination (s.13)
 Discrimination Arising from Disability (s.15)
 Indirect Discrimination (s.19)
 Breach of Duty to Make Reasonable Adjustments (s.21)
 Harassment (s.26)
 Victimisation (s.27)
2
Relevant Codes/Guidance
EHRC Code: “Equality Act 2010 Code
of Practice: Services, Public Functions
and Associations, Statutory Code of
Practice ( “The Services Code”)
3
Definition of Disability
 “physical or mental impairment” with
“substantial and long-term adverse effect on
P’s ability to carry out normal day to day
activities” (s.6 EA 2010)
 Includes sensory impairments such as sight and
hearing or mental impairments such as
Aspergers, autism, dyslexia and other forms of
mental illness. NB, mental illness not required to
be clinically recognised.
 .
4
Definition of Disability (contd)
 Meeting criteria for admission to hospital under
the Mental Health Act 1983 does not guarantee
“disability” under EA 2010: McDougall [2007]
ICR 1567; nor does qualification for disability
benefit: Hill v Clacton Family Trust [2005] EWCA
Civ 1456
5
Direct Discrimination
 Less favourable treatment because of a
protected characteristic ( disability)
 Proof requires actual/hypothetical “like for like”
comparator; i.e. “there must be no material
difference between the circumstances relating
to each case.” (s.23(1))
 In the case of direct disability discrimination, the
claimant must compare herself to a nondisabled person with the same abilities (s.23(2)).
6
Direct Discrimination ( contd)
 NB, abilities will not be only relevant
circumstance in disability cases: High Quality
Lifestyles Ltd v Watts [2006] IRLR 850 EAT
 S.13 provides asymmetrical protection for
disabled persons: Where B is not disabled, “A
does not discriminate against B only because A
treats…disabled persons more favourably than
A treats B” (s.13(3)
 S.13 protects against discrimination by dint of
perception/association.
7
Discrimination Arising from
Disability
 Unfavourable treatment because of
“something arising in consequence of B’s
disability” (s.15)
 No comparison with a non-disabled
person is required. Test is satisfied once
unfavourable treatment/detriment
established.
 It is a defence for the service provider to
show that s/he did not know and could
not reasonably be expected to know of
disability ( s.15(2)
8
Discrimination Arising from
Disability
 Services Code indicates that unfavourable
treatment means being “put at a
disadvantage”, “denied a service, or given a
poorer service”.
 Must be direct causal link between disability
and unfavourable treatment – the thing which
arises in consequence of the disability must be
the reason for the treatment.
9
Discrimination Arising from
Disability
Distinctions between s.15 and s.13:
 S.15 does not require a comparator.
 Unfavourable treatment contrary to s.15 can be
objectively justified where it is a proportionate
means of achieving a legitimate aim.
10
Discrimination Arising from
Disability
Examples from Services Code (6.7)
A disabled person is refused service at a bar because
they are slurring their words, as a result of having had a
stroke. In these circumstances, the disabled person has
been treated unfavourably because of something arising
as a consequence of their disability. It is irrelevant
whether other potential customers would be refused
service if they slurred their words. It is not necessary to
compare the treatment of the disabled customer with
that of any comparator. This will amount to discrimination
arising from disability, unless it can be justified or the bar
manager did not know or could not reasonably be
expected to know the person was disabled.
11
Examples of potential unlawful treatment from the Services
Code:
Jobcentre Plus staff member’s failure to interview a
Tourette’s sufferer because he was swearing.
Pub employee ordering customer to leave premises for
lying prone on bench without accepting explanation that
she suffered Chronic Fatigue Syndrome.
12
Indirect Discrimination
 Application of an apparently neutral
provision, criterion or practice ( PCP) which
puts or would put persons sharing a
protected characteristic at a particular
disadvantage.
 The claimant must establish “particular
disadvantage”.
 The PCP can be justified as proportionate
means of achieving a legitimate aim
13
Indirect Discrimination
 No requirement, in contrast to s.15, to show
causal connection with disability, only
requirement to show that PCP puts/would put
disabled persons at particular disadvantage.
 NB – overlap with s.15 but sometimes
evidentially easier to pursue s.15 since no
requirement to show “group” disadvantage re
s.15.
14
Reasonable Adjustments
Duty comprises three elements (s.20):
 Where PCP puts disabled person at substantial
disadvantage in comparison with non-disabled
persons, the service provider must take reasonable
steps to avoid the disadvantage.
 Where a physical feature puts a disabled person at
substantial disadvantage as compared with nondisabled persons, reasonable steps must be taken
to avoid the disadvantage.
 Reasonable steps must be take to provide auxilliary
aids where a disabled person would otherwise be
at a disadvantage.
15
Reasonable Adjustments
 Comparative exercise is required ( substantial
disadvantage in comparison with persons
who are not disabled).
 The required comparison is aimed at
demonstrating that the disability has caused
the disadvantage. There is no specific
requirement for identifying a comparator
whose material circumstances are the
same/analogous.
16
Reasonable Adjustments
 Duty is prospective and anticipatory:
“In relation to all three areas of activity (services, public
functions and associations) the duty is anticipatory in the
sense that it requires consideration of, and action in
relation to, barriers that impede people with one or more
kinds of disability prior to an individual disabled person
seeking to use the service, avail themselves of a function
or participate in the activities of an association.”
(Services Code, para. 7.21)
17
Reasonable Adjustments
Example in Services Code ( para. 7.21)
A person with a visual impairment regularly receives
printed letters regarding his social security benefits,
despite the fact that on previous occasions he has
indicated his need for Braille and this has been provided.
He finds this repeated need to telephone to ask for Braille
frustrating and inconvenient, but is told that the software,
which generates communications, does not enable a
record to be kept of customers’ needs for alternative
formats. This may constitute a failure to make reasonable
adjustments if it is judged to have left the disabled person
at a substantial disadvantage and there was a
reasonable adjustment that could have been made.
18
Reasonable Adjustments
 Duty does not require knowledge of
disability in order to be triggered but note
that provider cannot be expected to
anticipate all needs ( Services Code, 7.24)
 The duty is a continuing duty.
19
Reasonable Adjustments
Factors to be taken account of in assessment of whether
duty has been discharged:
 whether taking any particular steps would be
effective in overcoming the substantial disadvantage
that disabled people face in accessing the services in
question;
 the extent to which it is practicable for the service
provider to take the steps;
 the financial and other costs of making the
adjustment;
20
Reasonable Adjustments
Factors (contd)
the extent of any disruption which taking the steps would
cause;
the extent of the service provider’s financial and other
resources;
the amount of any resources already spent on making
adjustments; and
the availability of financial or other assistance.
21
Accessible Information
 S.20(6) EA 2010 expressly states that in relation to the
provision of information, reasonable steps will include
provision “in an accessible format”.
 Examples:
 Museum changing print size and appearance of literature.
NB provision of auxillliary aids may also be RA depending on
size and resources.
 Cinema franchise ensuring that subtitled performances
available in all branches with timing of such performances
prominently advertised.
22
Physical Features
Examples of (un) reasonable adjustments:
Requiring female wheelchair users of gym to change in
gym itself because changing facilities only accessible by
stairs.
Failure to provide wheelchair users with facilities for “face
to face” banking at a local bank branch: Allen [ 2009]
EWCA Civ 1213.
23
Private Law Remedies
S.119(2) EA 2010:
“The county court has the power to grant any remedy
which could be granted by the High Court –
(a)in proceedings in tort;
(b)on a claim for judicial review…
(4) An award of damages may include compensation for
injury to feelings (whether or not it includes compensation
on any other basis”
NB: Private law claims can be brought against public
authorities and service providers
24
Public Law Remedies
 Challenges by way of judicial review in respect of:
 Breach of duty pursuant to s.149 to have “due regard” to
equality considerations;
 Breaches of HRA 1998 ( e.g Article 8 ECHR)
25
Injury to Feelings Awards
 Da’Bell v National Society for Prevention of Cruetly to
Children [ 2010] IRLR 19 EAT:
 Lower band – up to £6000: discrimination is one off or
isolated event.
 Middle band - £6-18,000: serious cases that do not merit
an award in the highest band.
 Top band - £18-30,000: the most serious cases, e.g.
lengthy campaign of harassment.
26
Time Limits
 Part III (services and functions) proceedings may not
usually be brought after the end of the period of 6
months starting with the date of the act to which the
claim relates (s.118(1)) (ordinary time limit)
 Claim must be issued within six months less one day of
alleged unlawful act taking place unless extended by
the court pursuant to s.118(1)(b) or where the
discrimination is continuing (s.118(6).
27
Time Limits
 Most cases in which a challenge to the discharge of the
PSED is mounted will need to be brought within the JR
time limits, “promptly and in any event not later than
three months after the grounds to make the claim first
arose” (CPR 54.5).
 Equality/discrimination based challenges under the HRA
1998 will need to be brought before the end of a period
of one year beginning with the date on which the act
complained of took place or such longer period as the
court/tribunal considers equitable (ss.7(5) HRA)
28
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