Author: Natalya Dell

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At the High Court – Rapid Judgment in QOCS case!

Following Esther Leighton’s High Court hearing into QOCS (costs protections for people taking discrimination claims) on 28th January; we are delighted to be able to announce an extremely rapid delivery judgment delivery date of Wednesday 19th February at 10am.

Esther and some supporters will be at the Royal Courts of Justice in person and more supporters are always welcome. We know the hearing is at the Royal Courts of Justice, but not which court room it’ll be in until the day before. We are reasonably confident it will be in a wheelchair accessible court room, maybe even a working loop system!

We will announce the location here and on our social media as soon as we know the details.

Fingers crossed for a favourable judgment!

For more information about this case see:

  • Why Esther Leighton is challenging the government over costs protections issues in discrimination claims (QOCS)

  • 8 wheelchair users in a court room – makes the government think twice about their anti-costs protections arguments.
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    At the High Court – Costs in Discrimination Cases

    Last week after permission was granted a large number of disabled people and allies supported one of our co-founders Esther Leighton at the High Court hearing to challenge the government over lack of costs protection for people taking discrimination claims.

    Photograph of Esther and 9 of her supporters (6 using wheelchairs, one with a symbol cane and two wearing coloured lenses) outside the courtroom.
    Esther and 9 of her supporters, 6 who are wheelchair users outside the court room. (We had more people arrive later)

    Supporters travelled from as far as South Wales and North Yorkshire on a sunny weekday January morning. Being part of this large group turned the abled-gaze back upon itself as we proudly and quietly took up space in the court room and corridors and made our presence felt.

    One of the government’s proposed legal arguments was that Esther was only taking the claim because she is excessively litigious. After seeing over 8 different wheelchair users (at various times – hence not all pictured above), people with other visible impairments and non-disabled allies in court; this argument was never even raised. I think our point was made – through solidarity.

    While Esther is the named claimant in this case; this case matters to anyone who might need access to justice to challenge discrimination. On the subject of access to justice, despite requesting and being promised a loop system in advance; it was broken on the day. There were also other access failings which we will be raising with the court in due course.

    The outcome was as expected a ‘reserved judgment’ which means the judge will take some time to consider all the issues and draft his judgement carefully. We expect this to take between 3 and 6 months. We will post as soon as we can share the outcome.

    We would like to thank Esther’s excellent legal team Karon Monaghan QC from Matrix Chambers, Louise Whitfield and colleagues from Deighton Pierce Glynn, Inclusion London with Catherine Casserley from Cloisters Chambers and Chris Fry from Fry law as well as the Equality and Human Rights Commission (EHRC) who are funding this case.

    More information and writeups about the hearing and legalities can be found at:

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    Steps on a disability civil rights journey – Haben Girma

    Intro

    I recently read an excellent autobiography “Haben: The Deafblind woman who conquered Harvard Law” (available in various formats including audio read by Haben herself).

    I was struck by Haben Girma’s journey of experiencing and challenging an instance of ongoing discrimination in chapter 18 which felt directly relevant to Reasonable Access’s aim of supporting and empowering disabled people to assert and enforce disability access rights.

    If you plan to read the book, you may wish to delay reading further to avoid spoilers.
    Continue reading “Steps on a disability civil rights journey – Haben Girma”

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    Challenging the government – cost rules in discrimination cases

    We are delighted to announce that one of our members, Esther Leighton has been given permission for a full Judicial Review hearing to challenge costs rules in discrimination cases.

    Esther is being represented by a star team of Louise Whitfield at Deighton Pierce Glyn solicitors and barrister Karon Monaghan of Matrix Chambers. This case has been funded by the EHRC as having strategic importance for application of the the Equality Act as the outcome will affect people with all 9 protected characteristics.

    Why this case matters

    If you experience discrimination on the grounds of a ‘Protected Characteristic‘ such as disability, sex or race, you are technically protected by the Equality Act 2010.

    In practice, usually only an individual can enforce the law – there isn’t a specialised body to complain to. Informal complaints often don’t work, and 24 years after disability discrimination law came into force, poor access and discrimination is still widespread. Taking a legal case became harder after 2013 (when the government changed the law) because there is a high risk you can be made to pay the other side’s costs (sometimes even if you technically win your discrimination claim).

    As enforcing the Equality Act is so difficult and risky, organisations know that the risk of being sued for even blatant discrimination and poor access is very low. Society loses out, because accessibility and treating people fairly regardless of their protected characteristics are not seen as a priority.

    As Esther herself said in court papers:

    “These cases are important because they are about my daily experience. Getting into a cafe or a shop may not sound significant to a lot of people, but it is discrimination like this that excludes me from experiences that non-disabled people have every day without thinking about it.”

    The court hearing is on 28th January 2020 at the Royal Courts of Justice on the Strand in London. Several of us will be there to support Esther and her team – we will provide updates when we have them.

    We have adapted Judge Edis’s orders to make them accessible. A copy of the original orders in PDF can be found linked from Deighton Pierce Glyn’s press release

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    Equality Act Enforcement Inquiry

     

    The Women and Equalities Committee have produced a report into “Enforcing the Equality Act: the law and the role of the EHRC”.

    Disability evidence

    Two Reasonable Access trustees, Doug Paulley and Esther Leighton, gave oral evidence to the Committee. Both are cited regularly throughout the report.

    (A more accessible version made utilising the disability exemptions of the Copyright Act 2014) 

    Our view

    Overall, we think this is a very positive report.

    We welcome the robust conclusions that individualised enforcement of the Equality Act places an intolerable burden on individuals, that this fundamentally undermines compliance with the Act and that this must change.

    We agree that the Equality and Human Rights Commission (EHRC) should make more use of its unique powers, and that other Regulatory, Investigative and Ombudsman bodies should be more proactive in monitoring and compelling compliance with the Act.

    We also welcome the recommended change to legal aid, and the introduction of Qualified One-Way Costs Shifting – a critical issue on which Reasonable Access trustees actively campaign.

    We are delighted that the Committee firmly rejected the Ministry of Justice and Government Equality Office responses, which had accepted current model of individual enforcement as unavoidable and “the nature of adversarial systems”. It is also great to expose the disparity between the financial and other remedies available, and the financial costs of enforcement.

    We would disagree that the PSED and gender-pay gap reporting requirements are the only proactive duties in the Equality Act.  Service providers are under an anticipatory duty to make reasonable adjustments for disabled people. (Employers should also be subject to a similar obligation.) Organisations are required to take reasonable actions to ensure accessibility before a disabled person attempts to access their services. It is a shame the Committee did not make recommendations that the EHRC enforce Action or Improvement plans as part of driving gradual systemic change.

    While undertaking this enquiry, the committee was separately investigating the use of Non-Disclosure Agreements (NDAs) in settlements. The cross-over is apposite. The Committee recognised the negative impacts of NDAs and the risk of adverse costs on individuals complaining about discrimination. The report quotes Reasonable Access trustee Esther, who recommended unambiguous legal guidance stating that refusing an NDA should not be considered an unreasonable failure to settle. We are delighted that the committee has adopted this recommendation.

    We were astonished to discover the EHRC’s range of powers, and how poorly and infrequently these have been used. The frequency and severity of reports – e.g. 50,000 yearly instances of one (easily recordable) type of discrimination for one protected characteristic in one geographical area – makes clear that the EHRC needs to be far more assertive.

    Several regulatory, investigatory and ombudsman bodies made clear to the Committee that they had not heard of the Public Sector Equality Duty. We discovered that regulators, including the Financial Ombudsman Service, can make binding requirements forcing the organisations it regulates to make changes to policies and practices. The committee was clear that these bodies should not just rely on reports from individuals, but should proactively monitor, and compel, compliance with the Equality Act.

    We were sad to note that the evidence in other witness submissions made clear that a range of protected characteristics experience similar burdens of enforcement, with which we are so familiar. While some aspects are unique to disability, such as “proof of legal disability”, we noted that organisations find other ways to exploit intrusive personal information when defending legal claims made on other protected characteristics.

    What’s next?

    We are reticent to be hopeful for meaningful change, given the Government’s insulting reply to the (excellent) 2016 Lords committee report on the Equality Act 2010 and Disability.

    We expect the Government’s response in three months or so; though it may be delayed by the summer recess and by the focus on Brexit.

    In an ideal world, the excellent recommendations in this report would make Reasonable Access redundant; however, we expect to continue in our work to support disabled people to challenge the discrimination they experience.

    Background information

    The Women and Equalities Select Committee report:

    Absence of Disability from the Summary

    We should note that the committee did not intend to shun ‘disability’ as a protected characteristic in the first sentence. They have reassured us that this was to reflect that while in other protected characteristics the Equality Act mandates equal treatment (formative equality), it mandates different treatment in disability as this is required to achieve something approaching equality of outcome (substantive or transformative equality). Despite this apparent “omission”, we feel that the overall report is an accurate representation of disability-related issues.

    Reasonable Access

    Reasonable Access is a small organisation led by disabled people. We want to empower other disabled people in the UK to assert and enforce their right to access through peer assistance and information provision.

    In practice, this covers a range of activities including:

    • Asking about disability access.
    • Challenging disability access problems.
    • Pushing back against access refusals.
    • Making informal complaints about access failings.
    • Dealing with poor responses to access problems and complaints.
    • Escalating complaints to more formal and serious modes.
    • Taking legal cases with and without lawyer representation and support.
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    Access is good for business and people – Esther, Konditor and Disability Justice Project

    We at Reasonable Access are delighted to see one of our members Esther Leighton achieving such a positive and constructive outcome to raising an accessibility concern with a small business Konditor Cakes in London. Konditor has made an honest and public apology, fixed the access issues, and are now educating other business owners about how easy access can be as well as fundraising for the Disability Justice Project for the next six months.

    We would like to see more businesses react so constructively and positively when disabled people point access barriers out to them – it’s cheaper, happier and more useful than any other response.

    More information is shared on #SpreadJoyThroughCake

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