When a deaf or disabled person takes legal action (sues someone) over accessibility issues this is usually a last resort.
While I recognise many Deaf people do not consider themselves disabled, under the Equality Act, this is their protected characteristic and the legal way to complain. So I shall use the term disabled in this post.
A disabled person has the legal right to access goods and services from service providers the same as someone without that disability (where possible). Service providers can be public or private sector and are everything from shops, cafes, pubs, museums, galleries, music venues/events, utilities providers, the NHS, government agencies like the Jobcentre and more.
The most detailed guidance about disability rights for providers is the Services, Public functions and Associations: Statutory Code of Practice. There are slightly different legalities for education, transport and employment providers.
Myths and negative comments
Each heading below reflects a type of negative comment that is made about disabled people taking legal action to enforce our legal rights.
- “Who is responsible for providing access or adjustments?”
- “The disabled person should have asked nicely instead of suing.”
- “Why didn’t the disabled person complain via the proper authorities?”
- “The disabled person is only suing for the money.”
It is the Service Provider’s responsibility to provide access and make reasonable adjustments under the Equality Act 2010 (Formerly know as the Disability Discrimination Act, DDA, before 2010).
- the DDA coming into force in the mid 1990s (over 22 years ago),
- the duty to make reasonable adjustments being anticipatory (meaning access, needs should be considered in advance of someone making a request),
- many access issues being cheap and easy to resolve,
- the availability of free guidance and
- abundance of Disability Equality Trainers,
many service providers have not made their services accessible and do not have proper policies and practices for dealing with requests.
Access and adjustments have to be ‘reasonable‘ such as cost, disruption and other factors for determining reasonableness. If an access request is ‘reasonable‘ then it is not lawful to ask the disabled person to pay for, provide or pay extra to cover the cost of the adjustment‘.
This is why statements such as:
- “The deaf person should provide their own interpreter.”
- “The blind person should ask a family member to help them read letters.”
- “The wheelchair user should provide their own ramps to get into places.”
are legally wrong..
More detailed exploration of reasonableness for service providers is available on pages 97 to 108 of the Code of Practice. This also explains why deaf and deafblind people can lawfully request Communication Support from a service provider, but why a service provider usually does not have to provide assistance with toileting or other personal care support.
Before we can take legal action, disabled people have to prove we have contacted the service provider and asked nicely for an adjustment or raised the complaint about discrimination many many times. There are limited resources explaining how to make a proper complaint and take legal action. Disabled people have often provided “free awareness training” about our specific issue, linked to relevant publications or got an expert to support us. We have to go through internal complaints processes, issue at least one pre-legal letter before filing a court claim within 6 months of the last date of discrimination.
Service providers react in a number of ways to disabled people asking for adjustments or complaining about discrimination. They rarely provide a proper justification for refusal showing that they have considered reasonableness. Sometimes they will claim the law does not apply to them, or they do not understand it. Other tactics include sending long verbose, legally-threatening, bureaucratic and sometimes hurtful letters which do not address the relevant issues properly, or are intended to scare the disabled person off. In some cases service providers will not reply at all or delay replying until it is too late for an adjustment to be provided, or for the disabled person to follow the legal process.
Many people seem to think there is an organisation like the Food Standards Agency (FSA), which allow an individual to report accessibility or discrimination issues. There is no organisation like this. Only disabled people who have experienced discrimination can make complaints and take legal cases. We’d love a third-party agency to deal with access and discrimination issues, it would save us a lot of time, stress and abuse.
The EHRC mostly focus on hosting publications about the Equality Act, they only support a handful of cases a year if there are significant legal principles at stake and often only once a case has got to the appeal stage. The advice from the Equality Advisory and Support Service is limited and generic. The disabled person still has to handle the complaint themselves and translate available advice to their circumstances and deal with the service provider and maybe even their lawyers.
When a disabled person makes a legal claim, they have to say what “remedy” they want. The main legal remedy is financial compensation for actual losses and injury to feelings which is how humiliation, distress and other detriment caused my discrimination are described. Before 2013 disabled people could claim their legal costs from the other side if they were successful but then something called Qualified One Way Costs Shifting was introduced which has reduced disabled people’s ability to take discrimination cases because it is so financially risky. Most of the legal profession wants this reversed.
Most disabled people don’t want money, they want an apology, changes to the system so discrimination won’t happen again to them or other people. But if the discrimination is never acknowledged, or keeps happening, then disabled people have to take legal action to enforce their rights and make caselaw via an imperfect legal system.