Disability Discrimination Newsletter

by Andrew Hogan1
Ropewalk Chambers, Nottingham

1
Barrister at law, Ropewalk Chambers, 24 The Ropewalk, Nottingham, NG1 5EF andrewhogan@ropewalk.co.uk (0115) 947 2581

 
 This is the first of an occasional series of newsletters on litigation on disability
discrimination, brought in the civil courts either by way of judicial review in the High Court, or in the
County Court for damages under parts III and IV of the Disability Discrimination Act 1995. The
focus of this newsletter is on the new Equality Act 2010, which should come into force in October.

Any questions, should in the first instance, be addressed to Andrew Hogan.

Claims for disability discrimination are on the increase. Ropewalk Chambers has acted in
claims for judicial review for failure to comply with public equality duties (see the report by the BBC
at http://news.bbc.co.uk/1/hi/england/lincolnshire/8555545.stm) and claims for damages under
part IV of the Disability Discrimination Act 1995 (see the report in The Guardian at
http://www.guardian.co.uk/education/2010/may/25/diabled-student-drop-out-university-increase)

Disability Discrimination under the Equality Act 2010

The Equality Act 2010 marks an ambitious attempt by the government to both rationalise
and expand equality laws within the United Kingdom. The Act gained Royal Assent on 8th April
2010, with its commencement to be dictated by the relevant Secretary for State.2

According to the Government Equalities Office (GEO), it is envisaged that the main
provision of the Act will be brought into force by October 2010, with the wider public sector equality
duty beginning in April 2010.3

This article will consider to what extent the Act will change, fundamentally or at all, the
existing law on disability discrimination.

Disability

The logical place to begin is to consider who will be categorised as disabled, for the
purposes of the Act. The definition of ‘disability’ is provided for by section 6 and schedule 1 of the
Act. As with previous disability discrimination provision under the Disability Discrimination Act
1995 (DDA), the starting point is that a person has a physical or mental impairment that has a
substantial and long-term adverse effect upon their ability to carry out day-to-day functions.

Long-term is classed as being lasting or likely to last for 12 months or the rest of the
person’s life. If an impairment ceases to have a substantial effect upon a person’s life, it is
nonetheless treated as a continuing impairment if it is likely to reoccur.

Again, the effect of medication in controlling a condition is to be disregarded. However the

list of particular capacities specified by the DDA has been removed with the aim of allowing a
greater number of conditions to come within the definition of disability.

2
Sections 186 and 203-218 (General Provisions) came into force with the passing of the Act.
3
The socio-economic duty and dual discrimination protection are also timetabled for commencement in April 2010, with the ban on age
discrimination at some undefined point in 2012. The Act also contains the power to require companies to publish pay data relating to male and
female staff; it is hoped that these powers will not be needed but if they are then they will likely be exercised in 2013.
 There are also specific provisions relating to cases of severe disfigurement which is now to
be treated as necessarily having a substantial adverse effect, as well as provisions covering
progressive conditions and particular forms of disease or infection. Most interestingly, regulations
are able to specify when people are deemed to be disabled and also to determine whether a
particular effect of a condition is to be treated as having a substantial adverse effect.

As a final point it is worth noting that disability is classed as a protected characteristic for
the purposes of the Act. This terminology is equally used in connection with race, gender etc so
that the specific provisions of the Act can simply refer to protected characteristics rather than
having to specify each different type of protection separately.

Discrimination

This brings us to the classification of discrimination, which is an issue of particular

importance following the decision of the House of Lords in London Borough of Lewisham v
Malcolm [2008] UKHL 43. In Malcolm, the Lords effectively neutered the provisions of the DDA
governing discrimination relating to disability on the grounds that it required an absurd comparator.

Although the decision was heavily criticised by disability rights groups, the government was
also mindful of the flaws in the approach adopted by the Court of Appeal in Clark v Novacold Ltd
(1999) 2 All ER 977. As such it was decided that a new approach needed to be adopted, with a
wider classification of discrimination dispensing with the need for a theoretical comparator. 4

Under the Act, there are three different types of disability discrimination. Direct
discrimination (section 13), discrimination arising from disability (section 15) and indirect
discrimination (section 19). The first of these is the most straightforward and remains completely
unchanged from the relevant provisions of the DDA.

Discrimination arising from disability is the main alteration introduced by the Act, with the
Explanatory Notes explaining that that it has been adopted to provide the level of protection
intended by the DDA. It is defined as being unfavourable treatment arising in consequence of a
person’s disability, where the discriminator cannot show that the treatment is a proportionate
means of achieving a legitimate aim.

This is subject to the defence that the discriminator did not know, and could not reasonably
have been expected to know, that the person was disabled. The Explanatory Notes explain that
this is intended to “concretise” the non-comparator that resulted from Clark v Novacold. Now the
court will assess whether treatment is unfavourable in absolute terms, rather than conducting a
comparison with a hypothetical individual.

Indirect discrimination is entirely new in the context of disability discrimination, and is

another consequence of the government seeking to overturn the problems created by Malcolm.
That said, the concept itself is relatively straightforward, being applied in relation to disability in the

4
For more details on the exact proposals considered by the government, see the Equality Act: Impact Assessment, published by the GEO.
same way as it has historically been to other protected characteristics. Simply put, indirect
discrimination is the application of any provision, criterion or practice which would put a person
with certain characteristics at a particular disadvantage compared to people who do not share that
characteristic.

As with disability related discrimination it is subject to the defence that it is a proportionate

means of achieving a legitimate aim. The concept is phrased in very broad terms and is
potentially wide ranging in its application given that it can apply to any provision, criterion or
practice.

Duty to make reasonable adjustments

As such, we turn to the duty to make reasonable adjustments. Again this provision is not of
itself new but it has been substantially modified by the Act. The reason for this is twofold.

Firstly it is hoped that the new provisions will apply to a broader range of circumstances and
will thus provide a greater degree of protection. Secondly, it is also intended that the statutory
defence should be easier to access, but harder to prove.

Section 20 of the Act breaks down the requirement to make reasonable adjustments into
three separate requirements. These requirements are, however, closely related, each only being
engaged if the disabled person would otherwise be put at a “substantial disadvantage.” Simply put,
reasonable adjustments are required in connection with any provision, criterion or practice; any
physical features; and the provision of auxiliary aids. In all cases the person on whom the duty
falls is unable to pass the cost of complying with the duty onto the disabled person.

The requirements of section 20 are complimented by numerous schedules to the Act, which
individually deal with reasonable adjustments in relation to services, premises, work, education
and associations. To a large extent the schedules are self explanatory and do little to place a
gloss upon the statutory framework.

That said, schedule 2 is of interest as it contains special provisions relating to the duty
owed in respect of means of transport. The schedule also explains the interplay between the
requirements of the Act and services which seek to confer a benefit, stating that the substantial
disadvantage is to be assessed in terms of the benefit that it sought to be conveyed.

In addition to section 20 and the related schedules, further protection is provided by section
22 which allows for regulations governing the duty owed under the three requirements. These
regulations may prescribe what matters are to be taken into account when considering whether a
step is reasonable and what exactly are provisions, physical features or auxiliary aids for the
purposes of section 20. To date, no such regulations have been made. It must be said, however,
that should regulations be made they may make the lawyer’s job easier in assessing whether the
somewhat woolly term of “reasonable adjustments” has indeed been fulfilled.

It is also worth noting that ‘substantial’ is taken to mean more than minor or trivial.
 Finally it should be noted that the protections provided by section 20 are an additional level
of protection to that provided in respect of direct, indirect and related discrimination.

A local authority may be found to have discriminated by not making reasonable

adjustments, notwithstanding that they have not committed any other form of discrimination under
the Act. In practical terms, however, instances of disability discrimination are likely to fall under
multiple heads given the manner in which the duties and requirements under the Act are defined.

Provision of Services and Public Functions

In addition to the general prohibitions provided by the Act, section 29 deals specifically with
the provision of services. Under section 29, a service provider must not refuse to provide a
service to a person with a protected characteristic and must also not discriminate in the terms on
which the service is provided, by terminating the service, or by subjecting the service user to any
other detriment. It is clear though that this is wide enough to cover the quality of the service
provided. Section 29 also makes it clear that the duty to make reasonable adjustments applies to
service providers. This is described by the Explanatory Notes as an extension, though the
wording of section 20 would appear wide enough to cover service providers. In any event,
schedule 2 is once again of relevance when considering reasonable adjustments required under
section 29.

The most interesting part of section 29 however is its application to the exercise of public
functions. This applies both in cases where the public function is the provision of a service and
merely the exercise of a public function per se. Clearly this is likely to have wide ranging
implications as the protection provided by the Act is not simply limited to cases where there is
direct contact between the service user and the public authority. The Act adopts the definition of
the term ‘public function’ as a function of a public nature for the purposes of the Human Rights Act
1998.

Rental Property

A further area where local authorities (or more likely housing associations) are likely to
come into contact with the Act is to do with the rental and management of property, which is
governed by Part 4 of the Act.

Most significant of the new provisions are those relating to the communal areas of rental
properties, with section 36 of the Act imposing a duty upon the controller of the premises to make
reasonable alterations to the premises if disabled residents are placed at a substantial
disadvantage.

Unlike the other provisions relating to reasonable adjustments, the cost of such measures
may be passed onto the disabled person. Despite this it is hoped that the provisions will allow
more people to remain in private accommodation rather than requiring residential care.
 Further requirements are placed upon controllers of premises by schedule 4, which deals
with specific application of the duty to make reasonable adjustments. Two points from the
schedule are of particular importance.

Firstly, a detriment can be suffered as to either the use or the enjoyment of the premises.
Secondly, the duty to make reasonable adjustments includes a requirement that where a lease
contains a term prohibiting the tenant from making alterations to the premises, that term has no
effect where it is necessary for the tenant to make alterations to avoid a disadvantage. The
requirements of schedule 4 are however qualified by paragraph 2(8), which states that it is never
reasonable to require the removal or alteration of a physical feature.

Remedies for Breach of Statutory Duty

Enforcement of the foregoing provisions is governed by Part 9 of the Act, which sets out a
mandatory framework for dealing with claims under the Act. That said, section 113 explicitly
states that this does not prevent a claim for Judicial Review.

As such, any alleged case of discrimination can either be dealt with using the provisions of
Part 9, or, to the extent that it relates to a public law decision, through the medium of Judicial
Review. Indeed, on the face of section 113 there is no reason why both causes of action cannot
be pursued and discriminatory decisions challenged on two fronts.

Section 114 states that jurisdiction for proceedings brought under the Act lies with the
County Court, which, under section 119, has the ability to grant any remedy that the High Court
could grant in proceedings in tort, or a claim in Judicial Review.

In real terms this means an award of damages (which can solely be damages for injured
feelings as per section 119(4)), a declaration and/or an injunction. The one exception to this is in
cases where the grant of an injunction would be likely to prejudice criminal proceedings.

Normally, therefore, a local authority would be challenged by an action for breach of

statutory duty in the County Court. This is essentially the same remedy as before, though it
applies to a widened definition of both disability and discrimination.

Equally important as the remedies available under the Act are the time limits on action
imposed by section 118. Simply put, any County Court claim must be brought within 6 months of
the Act complained of, subject to the court’s discretion to extend the period when it is considered
“just and equitable” to do so.

The section also makes it clear that where the complaint relates to conduct occurring over a
period of time, the time limit will run from the end of the period. Finally, section 118(7) states that
in the absence of evidence to the contrary, a failure to do something is adjudged to have occurred
when the alleged discriminator either does an act inconsistent with the requirement, or on the end
of the period when they might reasonably have been expected to act. Clearly this is sufficient to
cover a variety of different circumstances and whilst those bringing claims are expected to act
swiftly, the court does have significant room for manoeuvre.
 Finally, section 136 is of note as it contains specific provisions relating to the burden of
proof in proceedings brought under the Act. If a claimant to proceedings establishes a prima facie
case of discrimination, the burden then falls upon the defendant to disprove that such
discrimination occurred. This shifting of the burden of proof is not new to discrimination law but is
now of far wider application. Indeed, its application to non-work related disability discrimination
claims is entirely new and is aimed at providing a greater degree of protection. In marginal cases,
those discriminated against will find themselves in a stronger position that before.

Public Sector Equality Duty

Having considered the basic statutory duties and remedies contained within the initial
provisions of the Act, we can turn to address what is, for our purposes, the most significant feature
of the Act: the Public Sector Equality Duty.

This is contained within Part 11 of the Act and imposes a duty in respect of the operation of
any of a public authority’s functions. Simply put, public authorities are under a duty to have regard
to the need to eliminate discrimination, advance equality of opportunity and foster good relations
between different groups.

These requirements are further defined as including the need to remove or minimise
disadvantages, taking steps to meet the needs of people with protected characteristics and the
need to encourage people to engage in public life. Indeed, section 149(4) specifically states that
the needs of disabled people are different to the non disabled and that steps taken must take this
in account. This duty applies to not just public authorities themselves but to any body exercising a
public function.

It is important to note, however, that these provisions are not entirely new but is rather a
reworking and simplification of some of the provisions of the DDA.

Moreover, the requirement imposed by section 149 is limited to ‘having due regard in the
exercise of functions,’ ie a factor to be considered rather than a legislative requirement to act.
This is a particularly important distinction as it significantly narrows the application of these
provisions.

Accompanying the duty imposed by section 149 are sections 150 and 151 which deal with
the definition of the relevant terms. As per section 150, public authorities are specified in schedule
19 and include ministers, local authorities (ranging from local government to port authorities), the
police, the NHS and a range of educational authorities.

Section 151 allows the relevant minister to make amendments to schedule 19 to either add
or remove public authorities for the purposes of the Act, though this is subject to a requirement of
prior consultation under section 152. Clearly this is likely to pose a source of dispute if the
government seek to widen the coverage of the Act to individuals or companies who do not want to
be so encumbered.
 The most significant aspect of Part 11 is, however, section 156 which states that a breach
of the provisions does not give rise to a cause of action at private law. As such, the Explanatory
Notes explain that these provisions are to be enforced by means of Judicial Review on a decision
by decision basis. Indeed, this ties up with the nature of the duty to consider that stated factors
when making decisions.

In practical terms the requirements of Part 11 should make it easier to establish that a
public authority has failed to take all material considerations into account, or that they have acted
in an irrational manner. Although there is no duty to take steps, authorities will have to show that
they have given sufficient consideration to the needs of the disabled community. This includes
considering how to increase opportunities available to them and to meet particular needs that they
need to overcome.

Clearly the practice of disclosure will be particularly important in future cases given that
there will need to be evidence of whether and how the equality duty has been complied with.
Indeed, applications for pre-issue disclosure should be able to provide most of the evidence
needed to support a claim.

Remedies in Cases of Discriminatory Decisions

As is clear from the foregoing discussion, the Equality Act seeks to simultaneously
consolidate and develop existing disability discrimination legislation. In doing so, it can clearly be
seen to widen the number of ways in which the discriminatory decision of a local authority may be
challenged.

In seeking to challenge a decision, the first development of the Act is to widen the definition
of discrimination to cover direct, indirect and discrimination arising from disability. As such, if a
decision can be said to fall within any of these three heads, it will fall foul of the statutory
prohibition on discrimination under Part 2 of the Act.

In particular, indirect discrimination which applies to any “provision, criterion or practice” is

likely to prove a fertile ground for attacking decisions. Once discrimination has been affixed under
any of these heads, then an action for breach of statutory duty can be brought in the County Court
where there are a full range of remedies available. In particular, potential claimants will be able to
obtain a declaration that a decision or practice is discriminatory and an injunction seeking its
removal or amendment.

Secondly, the Act has widened the provision relating to reasonable adjustments, meaning
that it is sufficient to show that a disabled person is put at a substantial (ie not minor or trivial)
disadvantage in accessing a service or benefit sought to be provided. Indeed, the Act now also
covers decisions that do not themselves relate to the provision of services but are merely the
exercise of public functions.

Further, as damages may be awarded simply for injury to feelings, it is not necessary to
show a loss in these situations. As such, any discriminatory exercise of a public function may be
challenged in the County Court.
 With both of these cases it is important to add that the remedies provided for in the Act are
without prejudice to the ability of an individual to judicially review a decision, a further weapon that
may be deployed. Indeed, given the wider definition of discrimination, it will now be easier within
the context of judicial review proceedings to show that a local authority has acted illegally (and
therefore also irrationally).

Thirdly, and potentially more significantly, the Act has a wide ranging equality duty that
must form part of any exercise of a local authority’s discretion. Indeed, this includes not just
meeting the needs of disabled people but how they can be helped to take a more active role in life,
opening up opportunities to them.

Local authorities must ask not just ‘will this have an effect upon disabled people’ but must
also think whether any decision could be used to proactively help disabled people. A failure to do
so is subject to Judicial Review, albeit once again with a wider means of attack given the clear
requirements of what must be considered in reaching any decision.

Andrew Hogan
July 2010

For further information on Ropewalk Chambers generally please contact the Senior Clerk, Tony Hill, on (0115) 983 8000.

Disclaimer:

This article is intended as a general overview and discussion of the subjects raised herein. It is not intended, and should not be used, as a
substitute for taking legal advice in any specific situation. Neither Ropewalk Chambers nor the author accept any responsibility for any actions
taken or not taken on the basis of this article.