The price of justice
Towards effective enforcement of the DisabilityDiscrimination Act
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The price of justice
Towards effective enforcement of the DisabilityDiscrimination Act
Contents
Introduction 1
DDA enforcement 3
Cost of bringing a claim 3
The summons 4
The defendant 4
The allocation questionnaire 5
Withdrawing before the hearing 6
Directions 7
The hearing 7
Settlement 8
IES Report 9
Options for reform 10
Recommendations 12
Further information 13
References 14
Bibliography 15
RNIB 2000
Registered charity no226227
ISBN 1 85878 396 8
The price of justice
Towards effective enforcement of the DisabilityDiscrimination Act
Introduction
There are 1.7 millionpeople in Britain who are blind or have significant sight loss. They facediscrimination on a daily basis, be it at work, in trying to find work, or ingoing into a cafe, supermarket or hospital. The Disability Discrimination Act(DDA), when implemented in December 1996, was a long awaited piece oflegislation that was designed to address the discrimination faced by disabledpeople and to give them new rights against those who were discriminating. Itprohibits discrimination in the areas of employment and goods, facilities,services and premises. The main provisions were brought into effectimmediately, with the remaining provisions implemented in October 1999 (theduty to make reasonable adjustments so that a service is accessible to adisabled person) and to be implemented in 2004 (the duty to remove, alter orfind a way around a physical barrier).
Employment casesunder the DDA are brought in the Employment Tribunals, and goods, facilities,services and premises cases are brought in the county courts.
At the time of theDDAs implementation, there were many concerns about its inadequacies, andabout the way in which it would work - some of which have proven justified,others not so. However little thought was given at the time to the issue ofenforcement: how disabled people were to ensure that they could enforce theirrights to non-discriminatory treatment in the courts. The Sex Discrimination Act1975 and the Race Relations Act 1976 both provided for employment cases to betaken in the employment tribunal, and for goods, facilities, services andpremises cases to be taken in the county court. These same enforcementprocedures were adopted for the DDA, although the effectiveness of bringing anyof these cases in the county court has never been demonstrated.
In 1998, theInstitute of Employment Studies (IES) carried out a major survey looking at howthe DDA was working and its effectiveness. This report entitled Monitoring theDisability Discrimination Act 1995 (1) was published in 1999 and revealedthat, between 2 December 1996 and 9 July 1998, only 9 DDA goods, facilities,services and premises cases were lodged in the county court. This was comparedto 2,456 cases which had been lodged in employment tribunals.
The Disability RightsTaskforce, which had a remit to look at all areas of civil rights for disabledpeople, acknowledged in its report From Exclusion to Inclusion (2) that therewere issues around the enforcement provisions for goods, facilities, servicesand premises and that it had been suggested that the provisions should beenforced through employment tribunals. Disappointingly, they did not make anyrecommendations, but they did state that they felt this issue merited furtherconsideration.
By autumn 2000, over5000 cases had already been taken to the employment tribunal claimingdisability discrimination in employment, yet as far as we know only 25 goods,facilities, services and premises cases have been taken to the county court.RNIBs own reports, such as Get the message, and those of other disabilityorganisations, such as Scopes Left Out report make clear that this is notdue to lack of discrimination in these areas. So, why is it that so few caseshave been brought?
This report looks atthe present methods for enforcing goods, facilities, services and premisescases, at some of those who have taken or attempted to take cases through thisroute, and at the difficulties encountered by them.
We conclude that, inreality, it seems that disabled people have rights that are virtuallyunenforceable and that, in order for the DDA to be effective, its enforcementmechanism for goods, facilities, services and premises cases must be changed.
DDA enforcement
Whilst employmentcases under the DDA are dealt with in the employment tribunal where it costsnothing to bring a claim and the risks of having costs awarded against anapplicant are negligible (3) - by virtue of section 25 of the DDA, all goods,facilities, services and premises cases have to be brought in the county court.
The county court isthe main civil court where things such as housing, consumer and certain maritaland childcare issues are dealt with. Unlike employment tribunals which dealsolely with employment issues, county courts deal with a wide range of legaldisputes.
Cost of bringing a claim
The first and perhapsmost obvious hurdle for disabled people in bringing their claim in the countycourt is the cost. In order to issue a summons - the procedure for bringing aclaim a claimant must pay an amount depending upon how much and what is beingclaimed. If claiming a declaration - a statement from the court that anindividual has been discriminated against - then a fee of 120 must be paid. Ifsomeone is on income support or in severe hardship, they do not have to paythis, but people are often not aware of this:
I had to pay a total of 180 and discovered onlyafterwards, when someone else told me, that I didnt have to pay. I had realproblems in getting the money back from the court, and as Im on benefit, thisleft me in some hardship.
This quote is fromMichael Gurney, who brought a case against BT when they cancelled his requestto transfer his telephone service to another service provider on the groundsthat that service provider did not produce braille bills. Mr Gurney, who wasrepresented at court by RNIB, won his case. (4)
The summons
In order to bring aclaim, claimants have to complete a summons issue form giving details of theirclaim, who the defendant is and so on. Unlike the employment tribunals, whichdont have strict rules of evidence but which can govern their own procedure,the county courts and the civil justice system is generally much morestructured and rigid. It is important that people put everything into thesummons that they want to claim because if they need to change it, they willhave to ask the court for permission, and may even have to attend a hearing atthe court to get such permission.
The defendant
Where a claimant isbringing a claim against both a company and an individual - where, for example,a shop manager has verbally abused the claimant - the summons has to be servednot only on the company but also on the individual at their home address. Wherethe home address is unknown, the claimant will have to ask the court forpermission to serve the summons at the work address. This will obviouslyinvolve considerable correspondence and can be difficult for claimants actingalone.
The allocation questionnaire
Once the defendanthas been sent a copy of the summons and has responded, both parties have tocomplete what is called the allocation questionnaire.
Prior to the Woolfreforms in April 1999, any claims for less than 3000 would automatically besent to the small claims court. This was relatively informal and was intendedto deal with small disputes that could be resolved without the need
for the formality ofthe main county court. Initially, the Government intended DDA goods andservices claims to be heard within this arena. (5)
The Woolf reforms,which were intended to streamline court procedure, introduced three tracksinto which claims would go: small claims track, fast track and multi-track. Inthe small claims track, costs should only be awarded against someone who loseswhere they have behaved unreasonably. In the other tracks, however, losers willinvariably have to pay costs which are at a fixed rate in the fast track, butunlimited in the multi-track (subject to the court capping them).
Cases are notautomatically allocated to the tracks, but are allocated following thecompletion of the allocation questionnaire. The questionnaire has to becompleted to indicate which track the parties believe appropriate for the case.Whilst claimants will generally want to keep cases in the small claims track toavoid any costs being awarded against them, and so that the procedure is lessformal, it is open to defendants to argue that the proceedings are bettersuited to either the fast or multi-track:
I had assumed that the defendant, particularly as it was agovernment department, would agree that the claim should be heard in the smallclaims track: it was a fairly standard claim, with the sort of issues that arelikely to be faced by many disabled people bringing a claim. They indicated,though, that because of the issues involved, the case should be heard in themulti-track. I couldnt possibly afford to meet any costs that might have beenincurred if I lost and, of course, because the DDA is so new, its verydifficult to know if you would win. I wasnt eligible for legal aid, although Idont know if I would have got it even if I was on benefit, as the prospects ofsuccess were so uncertain. I had to withdraw the claim, and even then I wasworried about having to pay costs for the time up until I withdrew it.
Quote from JanNesbitt, who took a claim against Margaret Hodge, the Minister for DisabledPeople, when she did not receive a copy of the Disability Rights Task ForceReport in braille. (6)
Not only do claimantshave to try to get the court to keep their claim in the small claims track, butthey also have to pay 80 on returning the questionnaire. This is waived if theclaimant is on benefit or in financial hardship.
Withdrawing before the hearing
If the claim isallocated to a track other than small claims and, because of cost implications,a claimant cannot continue with it, or if a claimant wants to withdraw for anyother reason, they will have to serve a notice of discontinuance on thedefendant and send a copy to the court. In these circumstances, it is normallythe case that the claimant would have to pay any costs that have been incurredup until the time of withdrawal. Thus claimants could be liable to pay costsfor, essentially, nothing. The court does have power to waive the payment ofcosts, but a good case would have to be made for this and we do not yet knowhow this is working in practice.
Directions
Courts will oftengive standard directions for the hearing of a claim, such as the exchange ofwitness statements and exchange of documents. This is a useful tool for theeffective hearing of the case, but it is often something that claimants willneed assistance with. With few advice agencies or law centres taking onconsumer cases, it is often difficult for claimants to prepare thesethemselves.
The hearing
Very few county courtjudges have ever dealt with a discrimination case. They receive no training indisability awareness, and this may be the first time that they have ever comeinto contact with a disabled person. The case of Rose v Bouchet, a disabilitydiscrimination case involving a visually impaired guide dog owner who tried tobook accommodation for the Edinburgh festival, unfortunately confirmed many ofthe fears of disabled people about judges dealing with these issues when theSheriff hearing the
case stated:
I did not form a favourable impression of the pursuer(Damon Rose) whom I did not regard as reliable in his evidence. He struck me asalways anxious to advance an anti-discrimination agenda. (7)
In the IES report,Monitoring the Disability Discrimination Act 1995, it states: In all of thecase study cases that were heard in court, the case in question was the judgesfirst DDA case. Some of these judges themselves pointed out to the parties thatthere was very little case law and admitted that the DDA was new to them. Inseveral of these cases, it was necessary for an adviser or representative toprovide the judge with copies of the Act and/or codes of practice and guidancebecause they did not have copies themselves.
The report alsoemphasised the fact that, on the whole, there is very little experience ofdisability in the court system.
Settlement
There is oftenconsiderable pressure on claimants to settle cases prior to hearing. In RNIBsexperience, the reasons for taking cases under the DDA is not to securefinancial compensation, but to have an acknowledgement of the discriminationthat has occurred, an apology or a retraction of any comments made by theclaimant about the plaintiff. This isagain supported by the IES report which indicates that justice was the mainmotive for those taking cases under goods, facilities, services and premisescases, with people wanting the service providers to know that what they haddone was wrong and illegal and therefore to apologise. (8) The financialaspect of any claim is, in any event, likely to be relatively small, withcompensation for injury to feelings running presently at between 900 to 3000.
Where a defendantmakes an offer of settlement and the claimant refuses the offer, the defendantcan bring this matter to the attention of the court and ask them to make acosts award against the claimant. This will considerably increase the pressureon the claimant to settle without having had an apology or a retraction ofanything that they have said. Whilst this can be argued against in court on thebasis that a declaration has been requested and that no amount of money canequal this, the fact that costs can be awarded against a plaintiff in thesecircumstances, and that there is no guarantee that this will not happen, is apowerful disincentive for people to continue with a claim.
The case of Hitchin vBass Taverns graphically illustrates this. Mr Hitchin said that he had beenverbally abused in a public house by the manager and he issued proceedings
against Bass Taverns,the owners of the pub.
In their defence,Bass Taverns alleged that Mr Hitchins guide dog jumped up at some food,something that Mr Hitchin and his sighted companion vigorously denied. A fewdays before the hearing, Bass offered 3000 (the maximum compensation availablein the small claims court) to settle the claim, along with an apology but noretraction of the comments about the guide dog. When Mr Hitchin refused thisoffer, Bass solicitors faxed a letter to his representatives (RNIB) detailingthe costs that they had incurred in defending the case so far, and stating thatthese costs would be claimed at the hearing on the basis that Mr Hitchin hadrefused the offer. The amount of costs ran to several thousand pounds. As MrHitchin said:
My representative had to call me to tell me that that iswhat Bass were claiming. She reassured me that she would argue against this, onthe basis that we were claiming a declaration, and she also assured me that thecosts would be met by RNIB if they were awarded against me. I was reallyworried about doing something that would cost this much money though. If Ihadnt been represented, there is no way that I would have gone on with thecase Id have settled there and then, and felt very unhappy about it.
The case actuallysettled on the day of the hearing, with payment of 1500 as well as an apology,and a statement retracting the allegations about Mr Hitchins dog, the mostimportant things to Mr Hitchin. (9)
IES report
The IES report onmonitoring the DDA also found that claimants had difficulty in pursuing casesunder the Act. The factors influencing the rate at which goods, facilities,services and premises cases are taken included the complexity of the courtsystem and the cost of taking a case.
It further stated:
It is clear that, in comparison with litigation in theemployment tribunal for Part II cases, litigation procedure in the courts isless accessible and more daunting.
Options for reform
Below are a number ofdifferent options that could be taken up in relation to the enforcement of DDAclaims:
1. Keep claims in the county court. It isRNIBs view that this is not acceptable,
andthat claims will not be brought underDDA, nor progress made in the law,
whilst the enforcement provisionsremain as they are.
2. Give employment tribunals jurisdiction todeal with goods, facilities, services
and premises cases, whatever the subjectmatter or circumstances. Whilst RNIB does agree with moving cases to theemployment tribunal, we
recognise that certain cases, suchas those involving claims against the police
whichare normally dealt with by means of a jury in the county court, may involve a
discrimination claim which would bemore appropriately
dealt with in the county court(particularly as legal aid may be available for such a
casebut would not be in the employment tribunal). For this reason, we do not
believethat there should be no power at all to move cases from the employment
tribunal.
3. Giveemployment tribunals jurisdiction to deal with goods, facilities, services
and premises cases with the powerto transfer cases in exceptional circumstances to the county court. It is this option that RNIB would wish to see taken up bythe Government and put into effect. To this effect, we would endorse therecommendations in the recentlypublished report Equality: a New Framework. Report on the Independent Reviewof the Enforcement of UK
Anti-Discrimination Legislation, (10) which were:
all discriminationcases should be commenced in the employment tribunals
where the matter doesnot relate to employment, the tribunal should be designated an equalitytribunal
the lay membersshould be called to hear cases, while taking into account their knowledge andexperience of the relevant field. If necessary, additional members should beappointed with relevant knowledge in respect of education and consumer affairs.
the president oftribunals or a regional chairman should have the power to transfer a matter tothe county court, either on application by a party or of his or her own motion
equivalent provisionsshould be made for the transfer of cases to the sheriff court in Scotland
the criteria fortransfer should include:
whether it would bemore convenient or fair for the hearing to be held in that court, having regardto the facts, legal issues, remedies and procedure
the availability of ajudge specialising in this type of claim
the facilitiesavailable at the tribunal and at the court where the claim is to be dealt withand whether they may be inadequate because of the disabilities of a party or apotential witness
the financial valueof the claim and the importance of the claim to the public in general.
Many of the issues tobe determined in DDA goods, facilities, services and premises cases willinvolve the same or similar issues to those arising in DDA employment cases,meaning that employment tribunals would be ideally placed to deal with these.The Equality: a New Framework report stated that there is usually more incommon between employment and non-employment discrimination cases than betweenthese cases and the other county and sheriff courts jurisdictions since theytend to involve similar questions of fact and law.
Recommendations
RNIB would urge theGovernment to implement the changes necessary to ensure that disabled peoplenot only have rights but that they can enforce those rights without having toencounter the stressful and deterring barriers currently faced by them inpursuing cases through the county court.
We would urge thatall disability discrimination cases be commenced in the employment tribunal.Whilst employment tribunals are not without their flaws, we believe that manyof these can be addressed with greater training in disability issues.
We would also urgethat those cases which are, in rare circumstances, transferred to the countycourt be given priority by the Legal Services Commission for the receipt oflegal aid.
We further recognisethat individuals will continue to have difficulty in pursuing claims whether itbe in the employment tribunal or in the county court, due to a lack of legalrepresentation. Whilst the Disability Rights Commission will obviously be ableto provide some assistance with this, it will not be the solution as itsresources are limited. We would propose that there be a duty adviser schemeat the tribunal (or county court whilst cases remain there) who would be ableto advise in relation to the hearing particularly at the directions stage. Thiscould operate in the same way as the county court housing rotas, operating forhousing cases, and the free representation scheme operating in the EmploymentAppeal Tribunal.
Further information
Code of Practice, Rights of Access, Goods, Facilities,Services and Premises, DfEE,published by the Stationery Office.
RNIB DDA Factsheets- available from RNIB Helpline on 0845-766 9999.
DDA self advocacy pack for visually impaired people who wishto complain about a service providers failure to comply with the DDA - available from RNIB Helpline on 0845-766 9999.
Court Service Disability Helpline: 0800-358 3506.
References
1. Meager et al Monitoringthe Disability Discrimination Act 1995, Research Report RR119, 1999, DfEE.
2. From Exclusion toInclusion A Report of the Disability Rights Taskforce on Civil Rights forDisabled People, 1999, DfEE.
3. Employment Tribunal(Constitution) etc. Regulations 1993 Sch.1 12. Costs can only be awarded wherea party has acted frivolously, vexatiously, abusively, disruptively orotherwise unreasonably.
4. Gurney v BritishTelecommunications PLC, Milton Keynes County Court, case number MK907665.
5. See HL Deb vol. 565,cols. 734 - 735.
6. Nesbitt v Hodge/theDepartment for Education and Employment, Central London County Court, casenumber CL050519.
7. Rose v Bouchet [1999]Industrial Law Reports 463.
8. Meager et al,para.7.4.4.
9. Hitchin v BassTaverns Ltd. and Raymond Banks, Preston County Court, case number PR808374.
10. Hepple et alEquality a New Framework. Report on the Independent Review of the Enforcementof UK Anti-Discrimination Legislation, 2000, Hart Publishing.
Bibliography
Hepple et alEquality: a New Framework. Report on the Independent Review of the Enforcementof UK Anti-Discrimination Legislation, 2000, Hart Publishing.
Meager et alMonitoring the Disability Discrimination Act 1995, 1999, DfEE.
RNIB Get themessage: making information accessible for blind and partially sighted people,1999, RNIB.
SCOPE, Left Out,2000, SCOPE.