This week we welcome guest blogger Doug Paulley, who was recognised as the Sheila McKechnie campaigner of the year for his work on disability rights. Follow Doug on Twitter @kingqueen3065.
––
The current political climate is not good for disabled people, or any other people experiencing disadvantage. These are very dark times.
The Equality Act
The Equality Act gives people with a “protected characteristic” (e.g. disability, gender reassignment, old/young age) legal protection from discrimination. It also gives service providers obligations to make reasonable adjustments to their premises and to their “provisions, criteria and practices” so that disabled people can use them.
This all sounds great, but is it enforceable?
In fact the only way the Equality Act can be enforced is by the person who has been discriminated against taking the service provider (usually a corporate body) to Court. But people experiencing discrimination are also likely to experience significant other barriers to the Court system – most seriously, funding. (That’s why there have been so few cases under the Act.)
Funding Equality Act cases
Legal Aid is so rarely awarded it is best to discount it entirely. A very few solicitors are able to take on such specialised work on a conditional fee basis (“no-win no-fee”, to use the dreaded terminology) but what happens if the case is lost? The defendants can claim their full legal costs (including employing a solicitor, etc.) from the disabled person – often to the tune of tens of thousands of pounds. A disproportionate number of disabled people are skint and don’t have this sort of money. (I don’t.)
How did it used to be done?
It used to be possible for claimants to sue for discrimination despite being skint. With “After the Event” insurance, a specialist insurance company would agree to insure the claimant against these costs, if they lost – for a premium. If the claimant won, the insurance premium was paid by the defendants.
The Government didn’t like this; they thought it unfair that defendants were expected to pay both the costs and the (often very high) insurance premium. This system was abolished: After the Event insurance premiums cannot now be billed to defendants if they lose a case.
What’s the situation now?
The Government was mindful that abolishing this system (for equality cases as well as personal injury cases) might prevent legitimate cases. In other words, claimants might no longer be able to afford to take the risk of losing and having to pay the defendant’s costs.
So it introduced a rule that as long a claimant’s case wasn’t vexatious, defendants would always have to pay their own costs. This is called “Qualified One-Way Cost Shifting” (QOCS).
The Government dropped the ball, though. They abolished the insurance premium in both equality cases AND personal injury cases, but ONLY introduced QOCS in personal injury cases – not equality cases.
The result is that it is now virtually impossible to bring cases under the Equality Act. Even if a law firm agrees to take the case on a “no-win-no-fee” basis, the claimant cannot risk being made to pay tens of thousands of pounds in costs should they lose the case. Nor can they afford to pay the insurance premium; the premiums are generally about ten times as big as any damages awarded under the Equality Act – so even if a claimant wins, they would lose money and end up in huge debt to the insurance company.
I brought a case against Firstbus (intended to establish that bus companies must do more to ensure priority for wheelchair users in the wheelchair space) in 2013.I could not bring that case today. No disabled person would risk bankruptcy – and no law firm could advise them to.
I have also brought other cases whilst representing myself without legal advice. This is not an easy thing to do. It makes the possibility of losing the case much more likely. I won’t take on any cases unless they are open and shut. Many disabled people would not be able to go to court without representation. (The Court Service itself is renowned for failing to make itself accessible.)
To me, this funding situation makes a mockery of the Equality Act. This legislation, long fought for by disabled people (under its previous incarnation as the Disability Discrimination Act), no longer has any teeth because disabled people simply cannot afford to enforce their rights. The Equality Act might just as well have been taken off the statute books. (Maybe if it had, there would be more outcry…)
In conclusion…
This is just one area where people are prevented from accessing justice due to failure of society’s systems. There are so many others. I believe it is essential that all citizens have the means to access the justice system. Citizens must be able to bring precedent setting cases, enforcing citizens’ rights and correcting wrongs.
That is why I support the Equal Justice Campaign. I also fully support CrowdJustice – this forward-thinking organisation may well be providing the only way some people can access justice. This is incredibly important for all of us – and I urge you to support them.
Have a legal case that could benefit from crowdfunding?