Tribunal win could plug legal gap for disabled agency workers

A disabled woman sacked by a council from her temporary post after taking time off with depression has won an employment tribunal case – after a three-year legal battle – that should help other agency workers fight discrimination.

Camden council in north London had tried to argue that Corrie Pegg had no right to protection from disability discrimination laws because of the way she had been signed up through a recruitment agency as a contract worker.

But with the backing of the Equality and Human Rights Commission (EHRC), Pegg won an appeal that should clarify the law for other agency workers.

An employment appeal tribunal ruled in April that the council did owe her legal duties under the Disability Discrimination Act, which was still in force at the time she was sacked from her job as a school travel planning officer.

Following that appeal win she finally had her case heard by an employment tribunal last month.

Pegg had had depression since 2003 and had managed her condition well, but she became unwell after a series of bereavements.

After seeking treatment in her own time, she spent a week in a mental health respite centre in June 2009.

Two months later, she was admitted to hospital, and then received visits at home from the community mental health team.

She was told 12 days later over the telephone that she had been sacked because of poor attendance and punctuality.

She later obtained information from the council, under the Data Protection Act, that revealed her health had been discussed in emails with staff members who had no need to know about it. She also suspected that her mental health had become the subject of office gossip.

Last month, an employment tribunal concluded that the council had failed to make the necessary reasonable adjustments for her mental health condition, and that she had been subject to harassment through internal emails discussing her mental health.

The level of compensation will be set at a hearing in February.

An EHRC spokeswoman said: “This case could start to plug the current and worrying gap in the law in respect of agency workers’ rights.

“There was an urgent need to be able to clarify the legal position of agency workers with regard to discrimination claims as so many people are affected and this case has now gone some way towards achieving that.”

A Camden council spokesman said: “All parties involved in this case are currently awaiting the written reasons for this ruling. The council will be in a position to respond… once these reasons are received.”

9 October 2012

News provided by John Pring at www.disabilitynewsservice.com

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Cuts court challenge fails

Two disabled people have lost their high court challenge over a council’s decision to slash spending on social care services.

They had sought a judicial review of Manchester City Council’s plans to cut spending on adult social care by a total of £39.5 million over two years through increased charges, with about 75 per cent of disabled people likely to pay more for their care.

They had argued at the high court in Manchester that the council failed to consult properly over the cuts and breached its equality duties under the Disability Discrimination Act.

Although Mr Justice Ryder dismissed the judicial review, he has yet to publish his reasons for finding in favour of the council.

A solicitor for the two disabled people, Mathieu Culverhouse, from Irwin Mitchell, said: “My clients are naturally disappointed with the result and will await the full judgment of the court before deciding what steps to take next.”

But he said the case had forced the council to clarify its proposals and to confirm that it would continue to meet disabled people’s eligible needs.

Liz Bruce, the council’s director of adult services, said: “We’ve carried out detailed consultations, and have looked at every option to try our very best to mitigate the impact of the cuts – and ensure that our policies are the fairest we could draw up in these difficult times.

“We are really pleased that this has been recognised by this judicial review and we are now focussed on delivering the savings, whilst at the same time doing everything we can to safeguard the most vulnerable in our city.”

Meanwhile, two disabled men challenging cuts by another local authority are waiting to hear the outcome of their judicial review.

The case, which was heard over two days at the high court in London this week, involved the decision by Isle of Wight Council to tighten eligibility for support and increase charges, which could see 2,000 disabled people on the island lose some or all of their support.

Lawyers for the two men argued that there were failures in the council’s consultation process and a lack of clarity over exactly how the changes would affect disabled people.

Campaigners say the council’s policy has left many people “confused and worried” over whether they will be eligible for support.

The judge is expected to deliver his ruling in the next fortnight.

The two cases are just the latest in a series of high-profile judicial reviews of decisions by public bodies to slash services and spending in the wake of the government’s deficit reduction plan.

News provided by John Pring at www.disabilitynewsservice.com

The Equality Act – What’s it all about? DisabledGo answers your questions!

The Equality Act came into force in October 2010. At DisabledGo we often get asked for more information about the Act and the protection it provides disabled people from discrimination. Here are some of the most common questions and our answers.

Has the Equality Act replaced the Disability Discrimination Act?Yes.

The new Act has generally incorporated and strengthened previous legislation, which means in the majority of cases your rights as a disabled person have remained the same or have increased from those outlined in the Disability Discrimination Act.

Why is it the Equality Act not a new Disability Discrimination Act?

The Equality Act brings together a range of previous laws about different areas e.g. Age, Sex, Race, Disability. The idea is to make the law around equality issues consistent, clear and easy to follow. As well as covering disability the Act outlines the rights people have on the grounds of –

  • Age

    DisabledGo

  • Gender reassignment
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Race
  • Religion and belief
  • Sex
  • Sexual orientation

These 9 areas are referred to as Protected Characteristics.

Who does the Equality Act apply to?

The Act applies to –

  • Government departments
  • Service providers
  • Employers
  • Education providers (Schools, FHE colleges and Universities)
  • Providers of public functions
  • Associations and membership bodies
  • Transport providers

 What rights do I have as a disabled person under the Act?

The Equality Act has introduced a number of positive changes regarding the protection and rights of disabled people. Our next column will cover this in more detail. However, here is a brief introduction.

  • The Act provides protection for anyone who has, or has had, a disability.
  • It protects people from being discriminated against who are mistakenly perceived to be disabled and it protects a person from being treated less favourably because they are linked or associated with a disabled person.
  • The Act provides protection for people who are discriminated against because of something connected with their disability and introduces protection from indirect discrimination and disability related harassment in accessing services.
  • The law has changed slightly in relation to an organisation’s responsibility to make reasonable adjustments to premises and to policies, practices and procedures. Previously they had to be made by service providers only where it would otherwise be ‘impossible or unreasonably difficult’ for a disabled person to use the service. Now, adjustments must be made where disabled people experience a ‘substantial disadvantage’.
  • Lastly, there is now no need for a person believing they have been victimised to show that they have been treated less favourably than someone who has not made or supported a complaint under the Act. They only need to show that they have been treated badly.

Does the new law protect me as a carer?

Yes. If you’re looking after a disabled person, the law will protect you against direct discrimination or harassment because of your caring responsibilities. This is because you’re counted as being ‘associated’ with someone who is protected by the law because of their disability. If you are a carer you would have previously been protected from discrimination and harassment if they happened at work, but the Equality Act has now extended protection to not only cover work but –

  • when you shop for goods
  • when you ask for services
  • when you get services
  • when you use facilities like public transport.

Where can I go for advice about my rights?

The Equality and Human Rights Commission provides advice to individuals and organisations around the Equality Act and cases of discrimination. The commission also has powers that enable them to enforce the law. These powers include helping individual people with their legal cases; and taking legal action against organisations that appear to have broken the law.

If you have a question or topic you would like to see featured in this column in future please contact anna.borthwick@disabledgo.com

Court setback just spurs campaigners on in fight against care cuts

Disabled campaigners have vowed to fight on, despite losing a High Court challenge to a council’s plans to make sweeping cuts to adult social care and support.

A judge at the High Court in Manchester ruled that Lancashire County Council did not breach the Disability Discrimination Act (DDA) by failing to pay “due regard” to the impact of the cuts on disabled people.

The case was taken by two disabled older women – JG and MB – but much of the evidence was compiled by a disabled people’s organisation, Disability Equality North West (DENW), which backed their legal action.

The two women argued that the council had decided to make the cuts before the necessary consultation process had even started, with the budget agreed on 17 February, despite the consultation not being due to finish until 11 days later.

But Mr Justice Kenneth Parker said in his ruling that he believed the council had just taken “a preliminary decision” on its budget, while being “fully aware” that the cuts would be likely to have an impact on disabled people, and that it had not committed itself to implementing the cuts until it carried out “a full and detailed assessment of the likely impact”.

He rejected the claim that the consultation had been just “a cosmetic exercise”, in which the council was “no more than going through the motions of setting out the consequences of a pre-determined course”.

Melanie Close, DENW’s chief executive, said she believed the two women would seek leave to appeal against the court’s decision.

She said DENW had been flooded with messages from its members thanking the organisation for taking on the case.

She said: “One of the positives is that the tide has now turned. Organisations and individuals now realise that actually as disabled people we do not always have to accept [these] decisions.”

The council – which has to make nearly £180 million in savings across all its spending over three years –wants to raise the eligibility threshold for support from “moderate” to “substantial”, saving £2.5 million a year for the next two years; cut spending on personal budgets and home care by £12 million over three years; and increase revenue from charging by more than £5.5 million over four years.

In the first four months of this year, said Close, DENW was hearing from disabled people whose support packages were being cut.

In the last three months, disabled people have started to contact DENW to report increased council charges of between £30 and £70 a week for their support.

Close warned that there would be further rises in charges next year. She said DENW would continue to gather information about the impact of the council’s policies, and would encourage disabled people to use the council’s complaints procedure.

DENW is organising an event on 23 September that will explain community care law and disabled people’s human rights, including their rights to challenge decisions made about their support, with 50 disabled people already signed up to attend.

At the event, DENW will hand out copies of a guide on rights, prepared with the help of disability organisations Disability LIB and DIAL UK, and copies of the council’s complaints procedure.

Close also intends to send a dossier of all the case studies compiled during preparation for the court case to the county council, in the hope that it will overturn individual decisions to cut support.

Lancashire county councillor Mike Calvert, cabinet member for adult and community services, welcomed the court judgement, which he said “supports our view that we have complied with disability discrimination legislation and that these decisions were entirely within the law”.

He said: “The changes we have made were very carefully thought through and will help to ensure that we can continue to protect our most vulnerable citizens.”

News provided by John Pring at www.disabilitynewsservice.com

Disabled activist wins right to challenge council cuts

A disabled activist with one of the country’s leading self-advocacy organisations has won the right to challenge in the high court a council’s decision to remove its funding.

Georgina Barrett has secured the right to a full judicial review hearing of Lambeth council’s decision not to renew annual contracts worth £118,000 with People First Lambeth (PFL).

The funding made up 94 per cent of PFL’s annual revenue, and Barrett and other people with learning difficulties from Lambeth are now fighting for the survival of their organisation, which was set up in 1985.

Her lawyers will claim the council failed in its public sector equality duty – under the Disability Discrimination Act – to pay due regard to the impact of the cuts on disabled people and the need to promote disability equality, and to consult or engage with PFL members, before making the decision.

Earlier this year, the council refused to provide Disability News Service with a copy of the equality impact assessment it claims it carried out on its proposed cuts to adult social care services, which were agreed on 23 February.

But Barrett’s lawyers will also be challenging the council’s continuing efforts to decide on future services. They will use the new Equality Act to argue that removing PFL’s funding has made it impossible for members to secure the support they need to take part in the new consultation process.

Christina Watkins, a PFL member who attended the court hearing, told Disability News Service afterwards: “People First Lambeth had all their funding stopped by the council. They never even told us, they just done it. It’s disgusting what they have done.

“It has very badly affected everybody here. This is a lovely organisation. We have got nowhere else to go. You have got to stand up for your rights.”

Wenda Gordon, another member who attended the hearing, said: “They have cut away our support. We can’t take part in decisions and they took our voice away and we are not happy with it.

“I am angry and upset. We sit at home and do nothing. It’s not right. We try to keep People First open so people with learning difficulties can come here. I think it’s right that we do that.”

Jennifer Taylor, who also attended the court hearing, added: “I am pleased because we have got somewhere. We are people with learning difficulties and we have a right to advocacy and support. All they want is money, money, money. It’s disgusting what they have done.”

She called on other self-advocacy organisations to take similar action. She said: “They should stand up and fight for their court case like we did.”

The case is likely to be heard in the high court in London this autumn. It is the latest in a series of high-profile judicial reviews of decisions by public bodies to slash services and spending following huge cuts by the coalition government.

But this will be one of the first cases to challenge a council using the Equality Act’s new single equality duty, which came into force on 5 April.

It will also be one of the first to suggest that a public body has failed to have due regard through its decisions to the need to encourage disabled people to participate in public life.

Louise Whitfield, a judicial review expert with Pierce Glynn solicitors, the firm representing Barrett, said: “The whole point of having the services at PFL was so people with learning difficulties could engage in decision-making. But the council has now taken that away without consulting anyone.”

In order to secure its survival, PFL is relying on volunteers, just one paid, part-time support worker, and temporary office space secured at a peppercorn rent.

Lambeth council said it could not comment on the judicial review itself, but a spokesman said it was “facing some extremely difficult and painful choices” due to the “unprecedented £37 million of government cuts to Lambeth’s funding this year”.

He said the council “will still be spending more than £30 million next year on vital services for people with learning disabilities, including supporting a range of independent organisations that work across Lambeth, but for a number of reasons we had to take the decision not to renew our contracts with People First Lambeth”.

He said the council was beginning a consultation on “alternative services, to which all users of People First services are invited”, with the process supported by an independent “user involvement worker”.

News provided by John Pring at www.disabilitynewsservice.com

Disabled women ask court to force council to think again over cuts

Two older disabled women have this week taken their fight against council cuts to care and support to the high court.

Lawyers for the two women have argued that Lancashire County Council breached the Disability Discrimination Act by failing to take into account the impact of proposed cuts to its social services budget on disabled people.

Both women rely on council funding to pay for the support they need to live in their own homes.

The judicial review hearing at the high court in Manchester ended today, but the judge will not deliver a judgment for at least a month.

Lawyers for the two women want the council to be forced to look again at its plans to cut its social care budget, tighten eligibility for support, and increase care charges.

They argued that the council had a choice as to whether to cut adult social care services and – if it was forced to make cuts – how much those reductions would be, and could have found savings elsewhere in its budget.

They also want the judge to make it clear that the council’s decision to adopt a policy of only providing support to meet personal care needs – which the local authority has now accepted was illegal – was indeed unlawful.

The county council wants to raise the eligibility threshold for support from “moderate” to “substantial”, saving £2.5 million a year for the next two years; cut spending on personal budgets and home care by £12 million over three years; and increase revenue from charging by more than £5.5 million over four years.

The two women are being backed in their legal action by the disabled people’s organisation Disability Equality NW (DENW).

In her witness statement, Melanie Close, DENW’s chief executive, said the council decided to reduce disabled people’s support packages before a consultation on proposed cuts had even started.

And she said the council had agreed its new budget on 17 February, despite its consultation not being due to finish until 11 days later.

After the case, Close said: “It is really difficult to know which way the judgment will go. The judge was knowledgeable and both sides made really good arguments.”

But she welcomed the council’s decision to accept that only providing support for personal care was unlawful.

Mike Calvert, the council’s cabinet member for adult and community services, said in a statement: “We recognise that this is a complicated issue. However, our view remains that we have complied with disability discrimination legislation and the decisions taken in February were entirely within the law.”

The court case was the latest in a series of legal challenges over decisions by public bodies to slash services and spending following huge cuts to government funding.

News provided by John Pring at www.disabilitynewsservice.com

Government’s equality plans ‘are pathetic’

The government is set to resist fierce opposition and force through proposals that will weaken the steps public bodies must take to help them promote equality.

Campaigners, opposition MPs and the equality watchdog have all warned that the decision will lead to a rise in court cases taken by disabled people and other disadvantaged groups over the decisions of local authorities and other public bodies.

But the government says it wants to avoid “burdening public authorities with unnecessary bureaucratic processes” by removing some of the “specific duties” they have to meet to comply with the Equality Act’s single equality duty.

The equality duty says that public bodies – ranging from primary schools to government departments – must have “due regard” to eliminating discrimination faced by disabled people and other groups, as well as advancing equality of opportunity, and promoting good relations.

But those in England will now have just two “specific duties”: to set a minimum of one equality objective every four years – across disability and the other five equality strands – and to publish information every year on how they are complying with the equality duty.

Inclusion London criticised the “minimalist nature” of the specific duties, and compared them to previous duties under the Disability Discrimination Act which were “precise tools to drive change and help authorities to understand how they may be discriminating and how proactively to employ people, deliver services and do work in ways that were likely to produce more equal outcomes”.

The specific duties are contained in new regulations finally approved by MPs this week – already more than three months after the single equality duty came into force – but will not now be debated in the Lords until after the summer recess.

In a debate on the regulations, Labour’s shadow equalities minister Fiona Mactaggart said the requirement for a public body to publish just one equality objective every four years was “pretty pathetic” and would mean a “miracle worker” would be needed to fulfil the equality duty.

She said: “We have ended up with a muddle. Local authorities and public bodies are not sure what is necessary and what makes a difference.”

She added: “The government are doing the least that they believe they can get away with, and they should be ashamed of themselves.”

But Lynne Featherstone, the Liberal Democrat equalities minister, said the regulations achieve “an appropriate balance between greater flexibility and reduced bureaucracy and will make public bodies accountable to the public who use their services rather than to Whitehall”.

Anne Kane, policy manager for Inclusion London, said after the debate that the specific duties should have been designed to help councils and other public bodies avoid legal action, but the regulations would instead see more court cases and public bodies taking fewer “proactive” steps towards equality.

But Kane insisted that disabled people would still be able to use the equality duty to hold public bodies to account and uphold their “rights and equality”.

The Government Equalities Office (GEO) had intended the regulations to come into force before the summer recess. A GEO spokeswoman was unable to explain the reason for the delay.

Kane said the delays around key elements of the Equality Act showed “a complete lack of leadership from this government on equality and shows that it just isn’t a priority”.

The Equality and Human Rights Commission declined to comment on any of the issues around the specific duties.

News provided by John Pring at www.disabilitynewsservice.com