Rights of disabled persons to accessible information, goods and services

1. Rights of disabled persons to accessible information, goods and services PLP/Inclusion London Ulele Burnham Doughty Street Chambers

2. 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)

3. Relevant Codes/Guidance • EHRC Code: “Equality Act 2010 Code of Practice: Services, Public Functions and Associations, Statutory Code of Practice ( “The Services Code”)

4. 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. • .

5. 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

6. 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 non-disabled person with the same abilities (s.23(2)).

7. 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.

8. 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)

9. 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.

10. 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.

11. 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.

12. Discrimination Arising from Disability 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.

13. 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

14. 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.

15. 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 non-disabled 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.

16. 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.

17. 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)

18. 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.

19. 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.

20. 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;

21. 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.

22. 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.

23. 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.

24. 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 – • in proceedings in tort; • 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

25. 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)

26. 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.

27. 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).

28. 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)