No access to legal advice, means no access to goods and services
Douglas Johnson and Louise Whitfield explain why, despite protections in law, many disabled people are still denied their rights – and what lawyers can do about it
The Equality Act (EA) 2010 is intended to give disabled people extensive rights of access to goods and services. Disability is a protected characteristic (s6) and the act prohibits certain discriminatory conduct in the context of both service provision and the exercise of public functions (Part 3). Direct discrimination (s13), indirect discrimination (s19), the duty to make reasonable adjustments (ss20 and 21) and discrimination arising from disability (s15), harassment (s26) and victimisation (s27) are all forms of prohibited discrimination.
Remedies
The act provides redress, by way of an action in the county court. Remedies include compensation for ‘injury to feelings’. This covers ‘subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress, depression and so on’ (Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871, 20 December 2002 at para 5). Often, this is the only remedy. Typically, awards range from £2,500 to £8,000.
However, the county court can also make any order which could be granted by the High Court (EA 2010 s119). This includes a declaration that the service provider is in breach of the act (important where a point of principle is at stake) and sometimes an injunction. Injunctions can be particularly effective at changing behaviour in the way an award of damages would not (see Box 1).
The goal of the legislation was to ensure disabled people had access to services and had a legal remedy if they experienced discrimination. The reality has proved to be different. A recent survey carried out by DisabledGo in December 2014 found extensive barriers to disabled people: a fifth of shops had no wheelchair access; three-quarters of restaurants did not cater for visually-impaired people; only a third of department stores had accessible changing rooms; only 15 per cent of retailers had hearing loops; a third of department stores and 40 per cent of restaurants did not have an accessible toilet.
However, very few discrimination cases are brought in the county court, in comparison with the employment tribunal. Despite claimants having to pay fees, employment tribunals still receive thousands of discrimination claims every year. By contrast, the total of county court claims was less than 100 in the eight years 1996–2004.
Injunction forces RBS to act
In Royal Bank of Scotland v Allen [2009] EWCA Civ 1213, 20 November, a wheelchair user’s bank did not have wheelchair access at the branch where his account was held. Sheffield Law Centre helped him claim for damages of up to £5,000, as well as an injunction. The injunction was important as the bank indicated it would not carry out the works needed, which could cost £200,000, even if it was ordered to pay compensation. The claimant obtained an injunction, which was the first to require building works, and compensation of £6,500, increased to £9,500 at the Court of Appeal.
Disabled people are put off by issue fees (until recently, the employment tribunal was free), a formal procedure and, above all, the risk of paying the opponent’s costs. Add to this the fact that many disabled people already have plenty on their plates, the difficulty of getting legal aid, the shortage of lawyers with experience of county court discrimination claims and the limited experience of courts and judges, due to the low numbers of claims they have the opportunity to handle. These are all formidable barriers to access to justice.
Funding options
How can you get funding for discrimination cases in the county court? Possible funding options include legal aid, the Equality and Human Rights Commission (EHRC), private client funding or conditional fee agreements (CFAs). The problems below illustrate why so few cases are being brought and why there is little, if any, access to justice for disabled people seeking fair access to goods and services.
Legal aid
Legal aid for discrimination is still available but access is limited to a mandatory telephone advice service through the Civil Legal Advice gateway, provided by just three firms nationwide. Some 6,872 requests for advice in 2013–14 resulted in just 2,384 legal help matter starts, and only four legal aid certificates in the whole of England and Wales. In only five cases, was any face-to-face advice permitted.
This suggests that, for whatever reason, the gateway and lack of face-to-face provision is hindering people accessing legal aid on disability discrimination matters. The low level of legal aid certificates is particularly concerning as this is what provides essential costs protection in county court proceedings.
EHRC
The EHRC’s programme of funding caseworkers, many in law centres, ended in 2012. While the EHRC has power to fund litigation arising from breaches of the Equality Act 2010, its approach has always been limited. It has recently consulted on its new litigation strategy but, to date, it hasn’t focused on access to services for disabled people, other than access to retail banking. The EHRC’s current approach is usually to intervene as a third party in a case rather than fund a claimant directly. More significantly, however, the commission’s approach to ‘strategic’ litigation is usually limited to appeal cases in the higher courts. The difficulty here is that very few cases reach the higher courts when there is no funding or expertise to bring them in the first place. Without funding at first instance, cases are often not pleaded well and may not be the best ones to test particular points at appeal. Representatives picking up a case at the appeal stage are often significantly disadvantaged by how the case was first brought, even if they are now able to secure funding for an appeal.
Paying privately
A disabled person would need to have a significant sum in savings or a high income to pay a solicitor privately assuming they could find one – and to take the real risk of losing and being liable for the defendant’s legal fees. Household legal expenses policies rarely, if ever, seem to cover county court discrimination claims. In practice, this is rarely a feasible option.
CFAs are commonly used to bring personal injury (PI) cases for individuals, against large corporations or large insurers. In practice, an injured person with a viable personal injury claim can usually find a solicitor without too much difficulty. As a result, the courts are used to handling PI claims.
Prior to April 2013, PI cases would typically be funded by a CFA with a ‘success fee’ and after-the-event (ATE) insurance. If the claim was won or successfully settled (as most are), the defendant (or their insurer) would pay the claimant’s solicitor’s basic costs, the success fee and the cost of the ATE insurance premium. The premium was often very high. If the case was lost, the insurance policy would pay the defendant’s costs and the cost of the insurance premium itself. The claimant’s solicitor would get nothing but the claimant would not be hit with a huge legal bill.
Jackson reforms
From April 2013, the Jackson reforms of court costs significantly changed the arrangements for CFA funding. The aims were to reduce the overall costs of litigation but to protect access to justice for injured persons.
Claimants (and their solicitors) can no longer recover success fees or insurance premiums. This effectively makes ATE insurance unaffordable. However, to compensate, claimants in personal injury cases are protected from adverse costs risks by the new rules on Qualified One-Way Costs Shifting (QOCS) in Part 44 of the Civil Procedure Rules (CPR 44.13– CPR 44.17) .
Essentially, the QOCS rules displace the normal principles on costs. The QOCS rules limit the amount of costs that an unsuccessful claimant can be ordered to pay in a personal injury claim. Costs are limited to the amount of any compensation payable. So, if a claimant loses at trial, they will not normally be ordered to pay any costs. If they are partly successful and win, say, £1,500 compensation, they cannot be ordered to pay more than £1,500 in costs.
The system is not without faults but the effect is still to provide access to justice for individual victims of personal injury against well-resourced opponents. Overall, the insurers also gain by the much lower costs of litigation generally. Defendants are protected by rules allowing costs exceptions for fraudulent or improper claims but a claimant with a genuine case need not fear the risk of losing.
Application to discrimination claims
Prior to the Jackson reforms, a very few solicitors began to run unlawful discrimination claims under CFAs. It is fair to say this did not have widespread impact. One of the difficulties in particular was the availability and cost of ATE insurance premiums for discrimination cases. These were higher because of the higher risk attaching to unfamiliar claims.
Is it now possible to apply the QOCS regime to discrimination cases? Arguably it is. The civil procedure rules state explicitly that QOCS applies ‘to proceedings which include a claim for damages for personal injuries’. Clearly, a discrimination claim for both injured feelings and psychiatric damage will be covered. One tactic is, therefore, to claim both psychiatric injury as well as injury to feelings, even if the evidence of psychiatric injury appears weak. The QOCS rules apply to the nature of the claim, not the final remedy. However, our view is that this slightly artificial approach is not necessary in the ordinary case where the only real remedy sought is compensation for injured feelings, without bodily or psychiatric loss.
The key question is, is injury to feelings a personal injury? For discrimination cases, surely, the answer is yes. Parliament chose to use the word ‘injured’ in EA 2010 s119. An injury to feelings is by definition an injury. Such an injury to feelings is necessarily personal. A corporate body cannot suffer injury to feelings.
Is this too simple? Traditionally, injury to feelings cannot be claimed in most personal injury claims. Lord Hoffman, in the Hunter case [1997] AC 655 at 707, 24 April, stated that ‘the law of negligence gives no remedy for discomfort or distress which does not result in bodily or psychiatric illness. But this is a matter of general policy …’.
However, negligence is a common law tort. Discrimination cases are different because, under EA 2010 s119, parliament has specifically provided for compensation for injured feelings, reversing the common law rule.
Implications
Treating discrimination cases as personal injury has some practical implications, particularly with allocation to track and the pre-action protocol.
The question whether a discrimination claim is a type of personal injury claim may arise at the allocation stage. Allocation is a two-stage process. First, a court officer will provisionally decide the track which appears to be most suitable for the claim and will serve a notice of proposed allocation on each party. After the return of directions questionnaires, a final allocation decision will be made by a judge.
The normal track for a non-PI claim of less than £10,000 is the small claims track, which is designed to deal with cases without legal representation. However, a ‘claim for personal injuries’ for more than £1,000 but less than £10,000 will normally be allocated to the fast track, which anticipates parties can be represented and can recover their legal costs.
In the actual example, below, the court treated the discrimination claim as a personal injury. It follows that QOCS protection would apply.
Protocol
Defendants may argue that claimants are required to follow the steps set out in the pre-action protocol for personal injury claims, which requires the claimant to allow a period of three months to respond to the letter of claim. This presents obvious difficulty with the six-month limitation period for discrimination claims.
This is answered by remembering that protocols are not rules and do not require slavish adherence. In any event, the pre-action protocol is largely geared towards obtaining and comparing medical evidence, which will not be appropriate in cases where the only head of claim is for injury to feelings. A discrimination claim may be seen as personal injury without either bodily or psychiatric injury.
Discrimination as personal injury
A client of Sheffield Law Centre issued a claim for unlawful disability discrimination at the County Court Money Claims Centre. The claim was solely for injury to feelings up to £10,000. Under normal allocation rules, this would go to the small claims track, unless it was considered to be a claim for personal injuries.
The court issued a notice of proposed allocation to the fast track (form N149B). On the claimant’s query, the response of the court was that:
It has been confirmed that our allocation of this claim to Fast Track is correct and that a claim for ‘Injury to Feelings’ as stated on the proceedings should have been classified as Personal Injury.
The parties did not agree on the suitable track but a judge allocated it to the fast track without a hearing, indicating the fast track was clearly appropriate.
The case subsequently settled before trial.
Conclusions
If someone is lucky enough to get legal aid or EHRC funding, that at least provides costs protection, as well as funding for disbursements. However, if you are a disabled person who cannot access services and you battle through the LAA’s telephone gateway, your chances of getting full legal aid to pursue your claim are shown to be negligible. Likewise with the EHRC, the chances of your county court claim being supported are very slim.
By making use of the QOCS regime, running a case of unlawful discrimination in the county court may, for some people, become a more realistic prospect than has been thought to date. Solicitors wishing to take on such cases will be able to recover their costs if successful, although the relatively low level of damages will usually make a success fee inappropriate. It is of limited commercial appeal as representatives would risk claims with unprofitable outcomes against well-resourced opponents. And, unlike legal aid, the cost of disbursements, would have to be met by either the claimant or the solicitor.
So what could and should be done?
The figures show the LAA needs to take a long, hard look at the mandatory telephone gateway. Something is going badly wrong if so few people are, in fact, able to use the rights under the Equality Act. Whether by accident or design, it is clearly inadequate and unacceptable, and failing to meet the government’s stated aims that ‘addressing societal prejudice and ensuring equality of opportunity’ are important issues where clients ‘may face difficulties’ in self-representation.
Secondly, the EHRC needs to re-think its approach to strategic litigation in its current review. The writers agree that a strategy should focus on cases, or groups of cases, which are likely to set a precedent or promote a sea-change in behaviour. However, the latter need not be limited to appeals and ground-breaking legal points. If first instance cases are properly funded and focused on areas of particular concern for disabled people (for example, transport, shops or restaurants), this helps to create a shift in attitude for service providers. Focusing on particular services and reasonable adjustments for specific impairments (for example, announcements on trains for visually-impaired passengers) could enable advisers to bring a series of cases in a cost-effective way.
Both the LAA and the EHRC are public bodies and bound by the public sector equality duty (PSED) in EA 2010 s 149. The duty is ongoing and thus as part of their respective reviews of the telephone gateway and their litigation strategy, they must have due regard to the need to eliminate discrimination and advance equality of opportunity for disabled people. Access to justice is a vital part of eliminating discrimination and advancing equality of opportunity: if you can’t act on your rights, the Equality Act isn’t worth the paper it’s written on.
The positive knock-on effect of litigation
Arriva runs a coach service between central London (from numerous pick-up points) and Luton Airport using accessible coaches with a wheelchair lift. However, it was advertising that only one of the 11 pick-up points could be used by disabled passengers, due to road layout, access at the bus stops themselves and levels of traffic. Deighton Pierce Glynn wrote to Arriva on behalf of a client who wanted to use a wider range of stops in central London. A senior member of Arriva staff responded with an offer to meet our client and local campaigners; he toured the various bus stops with them and reviewed recent risk assessments and the lifts in use. Arriva agreed to a range of changes which has made seven out of the 11 stops accessible. Work is ongoing to make another three accessible. Litigation was avoided and access radically improved, but Arriva’s response was no doubt informed by their recent experience of litigation: they had recently defended a claim about access to buses for wheelchair-users, and so were alive to the issues and keen to get service provision right when it was raised with them. The fact that someone had previously taken them to court clearly influenced how they responded to a fresh threat of litigation.
Finally, costs protection under the QOCS regime may provide some assistance for some claimants, provided they can find an experienced and innovative lawyer.