One of those Career Milestones

25 years since the Disability Discrimination Act and 10 years since the Equality Act, a team of disabled campaigners, organisations which represent them, and a pan-jurisdictional group of lawyers have joined forces to persuade the Court that the Ministry of Justice (MoJ) has taken steps which deny them their rights to access the Courts to enforce their rights.
In a High Court action commenced by Esther Leighton against the Secretary of State for Justice, the excellent Karon Monaghan QC, instructed by the formidable public law Solicitor Louise Whitfield and supported by the Equality & Human Rights Commission, The Honourable Mr Justice Cavanagh today (28/01/20) heard arguments that by failing to provide disabled people claiming for discrimination with the same financial protection as personal injury cases, the Secretary of State has itself discriminated against the very people for whom the Equality Act was introduced to protect.
It’s 7 years since the Government introduced reforms to the way in which civil rights are managed (The Legal Aid Sentencing and Punishment of Offenders Act 2012 [LASPO]), evidence has shown that many important cases are abandoned, or in the alternative disabled people have been forced into litigating these complex and socially important cases in person, without legal representation in the Small Claims Track.
I have personally raised these issues consistently at the highest Parliamentary level, and my recommendations have been accepted and advanced by Select Committees in the House of Lords, and the House of Commons. I have been to the Ministry of Justice to discuss the importance of making these changes, and I appeared to have received a sympathetic and respectful audience there. Indeed, the meeting was written up and attached to witness evidence by Robert Wright, Head of Civil Litigation and Funding at the MoJ. The Equal Justice Report I wrote and circulated, together with Fry Law’s consultation responses are in evidence.
Disappointingly, when publishing its review of LASPO last year, a decision was taken not to extend costs protection to disabled people when enforcing their rights to reasonable adjustments. This triggered the Judicial Review, which asks the Court to find that the decision was irrational, discriminatory and should be quashed; essentially that it should be taken again with due regard to the impact on disabled people.
The MoJ argues that it is has not taken the decision not to apply costs protection, and that it is still actively considering the issue. It even considered a pilot scheme between Fry Law and the EHRC although that was not pursued (or communicated to us), much to our disappointment. The MoJ says that the problem is that whilst we provided case studies demonstrating problems with the system that there is a lack of data showing the number of cases not brought. It is of course very difficult to prove a negative!
Today we were in Court with Inclusion London, their member organisations and members on a pro bono basis, with the wonderful Catherine Casserley, expert Barrister at Cloisters Chambers and in full support of Esther’s Judicial Review.
Inclusion London is a charity run by and for Deaf and Disabled people promoting equality and inclusion by supporting Deaf and Disabled People’s Organisations (“DDPOs”) and by campaigning for rights for Deaf and Disabled people in the UK. It supports over 70 DDPOs and, through them, over 76,000 Disabled people. Over the last 3 years they have run the Disability Justice Project which among other things supported Disabled people to protect and enforce their rights under goods and services provisions of the Equality Act 2010. Over the last year they have supported 48 meritorious discrimination cases. Out of those cases more than 50% abandoned their cases because of the financial penalties that would apply to them if they lost their cases.
It is plain that there is a problem where only 27 cases were taken through Inclusion London last year, out of 76,000 disabled people, each of whom will have had daily challenges, probably capable of individual action.
It is my profound hope that the Court allows the Judicial Review, and that the MoJ engages with those of us involved in helping to restore access to justice to all those with protected characteristics in the Equality Act. This could be one of the most empowering and important decisions in the lengthy and hard fought battle for disability rights in this Country.
Judgment will be reserved and provided at an unknown, but hopefully not too distant date in the future.

About the Author

Chris Fry

Chris is the founder of Fry Law.