Discriminatory practice being challenged in court
LEGAL rights are meaningless unless you know about them. You then need to be able to access your rights and enforce them before a court or tribunal if they are ignored or refuted.
Public bodies – whether governments, local councils or organisations exercising public functions – have a significant impact on our day-to-day lives. But how well do they implement their legal duties?
I want to focus on one relatively small but important area of the law: the 2010 Equality Act (2010 Act). Its purpose is to secure equal treatment and address the social evil of discrimination.
It does this in relation to nine protected characteristics – age, disability, gender reassignment, marriage/civil partnership, pregnancy/maternity, race, religion/belief, sex, and sexual orientation.
There are additional duties in relation to disabilities. I’ll look at disability discrimination because of some recent Scottish case law developments.
In October this year, the UK Supreme Court will consider whether the Second Division of the Court of Session was wrong in law in its interpretation of the 2010 Act. Did it incorrectly read down the Equality Act?
I’m instructed in this appeal and it concerns the charging policy of Glasgow City Council (GCC) for community care services and how it treats “disability-related expenditure” (DRE).
It costs more to live as a disabled person and in England, DRE is taken into account by local authorities, resulting in less weekly charges for community care services than a person without such disabilities.
In Scotland, the Second Division held that DRE can only arise in relation to care needs as assessed by the council under social work legislation. The appellant’s assessed needs resulted in community care services from 9am to 3pm, Monday to Friday – 30 hours each week.
his disability costs were full-time and occurred over 168 hours each week.
This UK Supreme
Court appeal will be important to many disabled Scots. The latest NHS statistics confirmed there were 74,867 disabled persons receiving community care services across Scotland. Unlawful discrimination can be direct – treating someone differently because of a protected ground. For example, a hotel reserving double rooms for “heterosexual married couples” only.
It can also be indirect – where a policy has a disproportionately adverse effect on a protected group or places them at a disadvantage. For example, a scheme for housing allocation which prioritised those in work.
For these types of discrimination, it is necessary to identify a pool for comparison – a group of people who do not share the protected characteristic to test the alleged discrimination.
This is not required for disability discrimination under section 15 of the 2010 Act, where you only have to establish a disabled person is treated unfavourably because of something arising in consequence of his or her disability.
Where a public authority’s practice puts a disabled person at a substantial disadvantage in comparison to an abled body person, it has to take such steps as it is reasonable to avoid that
disadvantage.
In the recent Court of Session decision in X v. GCC, the council claimed it could not provide larger temporary homeless accommodation to a family with a disabled child because it only used housing associations and they had nothing else available.
Was the council required to make a reasonable adjustment to its practice in order to provide suitable accommodation other than from housing associations?
The court held GCC had to make a reasonable adjustment to its practice: “The respondent has a wide range of statutory powers under which it can provide accommodation to homeless disabled persons, whether directly or through landlords in the social rented sector or private rented sector. It can source temporary homeless accommodation privately or commercially. It is not restricted as a matter of law to sourcing only through registered social landlords”.
Public bodies are also required to proactively look at how they can eliminate discrimination in terms of their policies and practices from their “public sector equality duty” (PSED) under the 2010 Act.
From my experience as a law centre lawyer, I see many things being done by public authorities without considering whether they indirectly discriminate against those with protected characteristics. I’m unpersuaded that the PSED is adequately considered in the review of policy and practice.
The courts have repeatedly ruled that the PSED isn’t a tick box exercise in a formulaic equality impact assessment document. In the case of Hotak, the UK Supreme Court held the PSED: “is not a duty to achieve a result, but a duty to have regard to the need to achieve the statutory goals ... The duty must be exercised ‘in substance, with rigour and with an open mind’”.
The duty must be applied to existing practice. There may well be considerable scope to challenge many public authority practices in Scotland.