A1P1 / Article One of the First Protocol
Age discrimination
Article 3 of the European Convention on Human Rights: Freedom from torture and inhuman or degrading treatment
Article 6 of the European Convention on Human Rights: right to a fair trial
Article 8 of the European Convention on Human Rights – right to respect for private and family life
Article 14 of the European Convention on Human Rights – non-discrimination
Burden of proof
Comparator
Compensation and other remedies in discrimination claims in the County Court
Compensation, special payments and the financial redress scheme of the DWP
Making a Complaint to the DWP
County Court – discrimination claims
Decision makers guides for DWP staff
Defences and exceptions for discrimination
Direct discrimination
Disability discrimination
Discrimination
Discrimination because of something arising in consequence of disability
EHRC – Advisers Support Helpline
EHRC – duties and powers
EHRC – resources for advisers
EHRC – Legal Support project
Equal Treatment Bench Book
Equality Act 2006
Equality Act 2010
European Convention on Human Rights
Evidence – proving discrimination
Finding a specialist discrimination adviser
First tier Tribunal and Upper Tribunal – Equality Act 2010 powers
Freedom of Information requests
Fundamental Rights Agency handbook
Gender reassignment
Harassment
Human Rights Act
Indirect discrimination
Injury to feelings
Judicial review
Lawful and unlawful discrimination
Legal Aid
Pregnancy discrimination
Proportionality – the objective justification test
Protected Characteristics in the Equality Act 2010
Provision criterion or practice (PCP)
Public authorities
Public functions
Public law
Public sector equality duty
Race discrimination
Reasonable adjustments
Referring a discrimination case
Religion or belief discrimination
Services and service providers
Sex discrimination
Sexual orientation discrimination
Strategic casework
Time limits
Trans and Transgender discrimination
Victimisation
What does your client want?

A

A1P1 / Article One of the First Protocol

A1P1 stands for Article One of Protocol Number One of the European Convention of Human Rights. It is part of rights contained in the Human Rights Act 1998, at Schedule 1 Part II.  It is also called Article One of the First Protocol.

The Human Rights Act 1998 requires all public bodies (like the Department of Work and Pensions and local authorities, hospitals) and other bodies carrying out public functions to respect and protect your human rights.

A1P1 is about protecting ‘the peaceful enjoyment’ of your possessions. It is not a right to claim benefit.

In the context of welfare benefits, A1P1 is used in arguments about whether your client has been deprived of a possession. In other words, has your client been unlawfully deprived of a benefit?

A court will decide if the benefit in question is a ‘possession’ as defined by A1P1.  Both contributory benefit and non-contributory benefits can be possessions.

The court will look at the conditions of entitlement to that benefit. If your client has stopped meeting the entitlement conditions for that benefit, then the court might say that the benefit is not a ‘possession’ to which they are entitled, and that A1P1 does not apply.

If the court thinks that the benefit is a possession, in the terms of A1P1, they will decide if the government has lawfully interfered with your client’s peaceful enjoyment of that benefit. The government would have to show that the interference was justified.

Rights to the protection of possessions under A1P1 are qualified rights. This means that the government can deprive you of a benefit if it is in the public interest to do so. Public interest reasons could be ‘the cost to the public purse’ or securing social justice.

You can find out more information about A1P1 from the EHRC.

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Age discrimination

The Equality Act 2010 sets out when age discrimination is unlawful.

Age is a protected characteristic under the Equality Act 2010. It is defined in Section 5 of the Equality Act.

The Equality Act 2010 gives a wide definition of age. It includes older people and younger people. You can be discriminated against because of your age, or because you are in a specific age group.

Example: A Work and Health Programme Provider, DullGrey Ltd, only accepts online bookings for its training courses. This could be indirect age discrimination as people in an older age group would be placed at a particular disadvantage by this booking system.

Protection from age discrimination by service providers, when providing services or exercising public functions, applies only to people aged 18 and over.

Direct discrimination and indirect discrimination because of age can be allowed if it is justified. Discrimination is justified if it can be shown to be a proportionate way to achieve a legitimate aim.

There are many exceptions to the principle that age discrimination is unlawful, so it is important to check these if you want to argue age discrimination.

You can find more information on age discrimination from the EHRC.

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Article 3 of the European Convention on Human Rights: Freedom from torture and inhuman or degrading treatment

Article 3 of the European Convention on Human Rights provides protection against torture, and inhuman or degrading treatment. It is an absolute right. This means that the government can never justify breaching Article 3. In some circumstances, a public authority has a positive duty to protect individuals from treatment that would be in breach of Article 3.

The Human Rights Act 1998 requires all public bodies (like the Department of Work and Pensions and local authorities, hospitals) and other bodies carrying out public functions to respect and protect your human rights.

It gives protection against:

• torture (mental or physical)
• inhuman or degrading treatment or punishment, and
• deportation or extradition (being sent to another country to face criminal charges) if there is a real risk you will face torture or inhuman or degrading treatment or punishment there.

Inhuman treatment can include serious physical or psychological abuse in a health or care setting.

Degrading treatment is treatment that is extremely humiliating and undignified. Whether treatment is degrading depends on the length of the treatment, its physical or mental effects and the sex, age, vulnerability and health of the victim.

As with the other Articles, Article 3 can be used in conjunction with Article 14 where the treatment is because of a protected characteristic, or has, for example, greater impact because of a protected characteristic such as disability.

You can find more information on Article 3 from the EHRC.

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Article 6 of the European Convention on Human Rights: right to a fair trial

Article 6 of the European Convention on Human Rights provides a right to a fair trial. It says that you have a right to a fair and public hearing if a public authority is making a decision (or ‘determination’) that has an impact upon your civil rights or obligations.

The Human Rights Act 1998 requires all public bodies (like the Department of Work and Pensions and local authorities, hospitals) and other bodies carrying out public functions to respect and protect your human rights.

Article 6 is engaged in welfare benefits cases where the benefit in question is not a matter of discretion – in other words, it has to be a benefit to which you are entitled if you meet the criteria. In the UK this will capture most welfare benefits, as provided the claim is properly made and you meet the criteria for entitlement, a decision on your claim will be a determination of your civil rights.

A fair and public hearing should

• be held within a reasonable time
• be heard by an independent and impartial decision-maker
• give you all the relevant information
• be open to the public (although the press and public can be excluded for highly sensitive cases)
• allow you representation and an interpreter where appropriate
• be followed by a public decision: you have the right to an explanation of how the court or decision-making authority reached its decision.

Article 6(1) says:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

You can find more information on Article 6 from the EHRC.

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Article 8 of the European Convention on Human Rights – right to respect for private and family life

Article 8 of the European Convention of Human Rights provides rights in four areas of our lives. These are:

• respect for your private life
• respect for your family life
• respect for your home
• correspondence

The Human Rights Act 1998 requires all public bodies (like the Department of Work and Pensions and local authorities, hospitals) and other bodies carrying out public functions to respect and protect your human rights.

Your right to respect for your private life includes your right to respect for your sexual orientation, your right to control your own body, and your right to develop your own personal identity. This right can also include a right to participate in essential economic, social, cultural and leisure activities. Your right to a private life includes a right to respect for your personal and confidential information. This includes how data about you is shared and stored.

Your right to respect for your family life includes the right to enjoy relationships with your family, and to live with or have contact with your family.

Your right to respect for your home means that the government, or another public authority, should not interfere with your right to live in your own home, unless they can give justification for doing so. It is not a right to housing.

Your right to respect for your correspondence is about your right not to have your phone or letters censored or tapped.

There are also positive rights obligations associated with Article 8 such that public bodies may have to take steps to secure those rights.

Article 8 is a qualified right. This means that your rights can be restricted if the government has a very good reason that can justify them doing so. The grounds for restricting your Article 8 rights are set out in Article 8.2. These include reasons like national security or the economic well-being of the country.

You can find more information on Article 8 from the EHRC.

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Article 14 of the European Convention on Human Rights – non-discrimination

Article 14 of the European Convention on Human Rights Act says that it is unlawful if you are denied your other rights under the Convention in a way that is discriminatory.

The Human Rights Act 1998 requires all public bodies (like the Department of Work and Pensions and local authorities, hospitals) and other bodies carrying out public functions to respect and protect your human rights.

Your other rights include things like a right to respect for family life (Article 8), or to peaceful enjoyment of your possessions (A1P1), or to a fair trial (Article 6).  If you think that you are being denied those rights, and that is happening in a discriminatory way, then you can use Article 14 to say that is unlawful discrimination.

Article 14 is not a free-standing right. This means that you cannot use Article 14 to say simply that you have experienced discrimination. Article 14 gives you the right to not to be discriminated against when you want to rely on and enjoy your other human rights.

Article 14 is about differences in treatment. It includes:

• discrimination where you are treated differently
• discrimination where you are affected differently when everyone is treated in the same way
• if you are in a significantly different situation to other people, and you think that you should be treated differently because of your different circumstances or needs (the Thlimmenos principle).

Article 14 includes some examples of the grounds it includes, including sex and race. The protection of Article 14 also covers discrimination because of ‘any ground’. The Article also refers to ‘other status’, and this provides protection against discrimination (in the enjoyment of the other human rights set out in the Act) on the grounds of disability, sexual orientation and age.

More information on Article 14 is available from the EHRC.

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B

Burden of proof

If you wish to bring a claim in a County Court against a public authority or service provider, and your claim is that they have breached the Equality Act 2010, you will need to prove your claim. Determining which party has the ‘burden of proof’ is essentially about establishing which party needs to show evidence as to why they should win.

This is not to be confused with the ‘standard of proof.’  In most civil (i.e. non-criminal) cases in the UK, the standard of proof is on the balance of probabilities: is it more likely than not?

The Equality Act and the County Court judges recognise that discrimination is not always obvious and is often hidden or denied. There are some legal rules that can help you to prove your claim.

Proving that you are entitled to bring a claim

It is your responsibility as a claimant to show that you are entitled to bring a claim under the Equality Act 2010. If you are saying that you have been treated unfairly because you have a protected characteristic, then you must prove that you do have that protected characteristic. This will often not be in dispute, and the defendant will accept that you do have that characteristic, for example they accept that you are a woman, or that you are in a particular age bracket.

If you are bringing a claim for disability discrimination, then the defendant will sometimes dispute that you meet the Equality Act 2010 definition of disability. In those circumstances the burden of proving that you do meet the requirements of the statutory definition is upon you as the claimant.  You should look carefully at the statutory definition. The court may listen to your own oral and written evidence, and evidence from your family and friends, about how your health conditions affect your normal daily activities. You may also want to give to the court, and the defendant, evidence from a doctor or consultant about your health and its impact on you. If the defendant is disputing your disability, then you may wish to seek legal advice to help you to collect the right evidence, so that you can show that you meet the statutory definition.

Proving discrimination

In order to decide if there has been unlawful discrimination, the court will usually want to hear and read evidence from you, your witnesses and the defendant and their witnesses. In discrimination cases, Section 136 of the Equality Act 2010 sets out the way that the burden of proof works in discrimination cases.

The court will consider all the evidence, from the claimant and the defendant, to decide if there was discrimination. If the court thinks that the claimant has shown that what happened could have been discrimination, and there is no other explanation for what happened, then the court will say that the discrimination is proved. If the defendant can show that there was another explanation, then the court will decide which account is most likely, on the balance of probabilities.

The most recent case on the burden of proof in Equality Act claims is an employment case, Ayodele v Citylink and Another [2017] EWCA Civ 1913.

In that case, the Court of Appeal confirmed that the Claimant should first establish a prima facie case. In other words, the Claimant should put forward a factual case that what happened could have been discrimination. Then the Court will look at the explanation for those facts: was there another explanation for what happened, or was that discrimination?

For the purposes of the reasonable adjustment duty: once a claimant puts forward a potential reasonable adjustment, or some indication of what adjustments should have been made, then the burden of proof shifts to the defendant to show that it is not a reasonable adjustment for it to have to make. This can be a contested area in practice, and if there is a dispute about the burden on the Claimant and how specific a request for a reasonable adjustment needs to be, then specialist advice should be sought.  (See: Project Management Institute v Latif [2007] UKEAT 0028 07 1005; Finnigan v Northumbria Police Chief Constable [2013] EWCA Civ 1191; VC, R on the application v SS for Home Department [2018] EWCA Civ 57)

Rules of evidence in the County Court

If a claim is brought in the County Court, the Civil Procedure Rules apply.

If a claim is allocated to the Small Claims track in the County Court (where the value of the claim is less than £10,000), Part 27 of the Civil Procedure Rules apply. These state that the strict rules of evidence do not apply, and “the court may adopt any method of proceeding at a hearing that it considers to be fair”.

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C

Comparator

In some discrimination claims, your client will need to show that they were treated worse or differently, or less favourably. They will need to compare their experience or treatment with the experience or treatment of someone else. The person they compare themselves to is called the comparator. This may be an actual person, or a hypothetical comparator.

Direct discrimination is about worse treatment or a denial of choice. Your client will need to show that someone else treated them less favourably – than they treated other people or would treat other people.

The comparator should be in similar circumstances to your client. Section 23 of the Equality Act says there must be no material difference in circumstances between your client and the comparator.

Particular care needs to be taken about choosing the right comparator in direct disability discrimination claims.

If in any doubt, an adviser should seek advice and guidance from the EHRC Advisers Support Helpline.

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Compensation and other remedies in discrimination claims in the County Court

If your client wins an Equality Act 2010 discrimination claim in the County Court, the Court can order that the defendant should pay compensation. The powers of the County Court are set out in the Section 119 of the Equality Act.

The EHRC have published a guide: ‘How to work out the value of a discrimination claim’.

Financial loss

Discrimination is a statutory tort. This means that the court can order the defendant to pay to your client the losses that will put them back into the position they would have been in, had the discrimination not occurred.

It is important to keep evidence of any financial losses incurred, as the court will expect to see documentary evidence of any losses that your client is seeking. This kind of compensation is sometimes known as special damages.

Injury to feelings

The County Court can make an award under the Section 119 (4) of the Equality Act 2010 that the Defendant pays compensation to the claimant for their injury to feelings.

There are compensation guidelines set out for Employment Tribunals (and an addendum in March 2018) on how much compensation it is appropriate to order a Defendant to pay for injury to feelings. These are known as the Vento guidelines and they can also be used in discrimination claims in the County Court.

The lowest amount that it is appropriate to award for injury to feelings is now £900. There are three ‘bands’ of levels of compensation. The upper band is up to £42,900, with only the most exceptional cases expected to exceed that amount for injury to feelings.

If your client wishes to seek compensation for injury to feelings, then it is important to show the court evidence of how the discrimination has affected them. You may wish to do this by preparing a witness statement for your client, to explain the impact on them. It can also be useful to obtain a witness statement about this from family, friends or a doctor, depending on your client’s situation.

Personal injury

If the discrimination that your client has experienced means that they have a physical or mental personal injury, directly as a result of the discrimination, they may also be able to claim compensation for that personal injury. This is not a common claim, and you should seek specialist advice at the beginning of any claim on whether your client can claim for this, including advice on the evidence that will be needed, and how much compensation it is appropriate to seek. The Law Society personal injury accreditation is the quality mark for lawyers working in personal injury.

Other remedies

The court can also make a declaration that there has been unlawful discrimination.

The court can also make an order for what is known as injunctive relief (an injunction). This is an order that the Defendant do something or stop doing something. This is a very powerful remedy. It is rare because so few cases get to court. If your client wants to seek an injunction you should get specialist advice as soon as possible. An example of this happening is the 2009 case of Royal Bank of Scotland Group plc v Allen [2009] EWCA Civ 1213. The County Court awarded the defendant to pay £6,500 damages (plus an extra £3000 following an unsuccessful appeal to the Court of Appeal) and ordered them to install a stair lift at the bank, so that Mr Allen could access the bank without disadvantage.

Other compensation awards

If the County Court thinks that the Defendant’s behaviour and actions have been ‘highhanded, malicious or oppressive’, the court can order aggravated damages. This is rare. It can arise from the way in which the defendant has conducted the defence.

Exemplary damages are even rarer and are only awarded in specific circumstances including “oppressive, arbitrary, or unconstitutional action by the servants of the government”.

If your client wishes to consider seeking these kinds of damages, you should seek specialist advice first.

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Compensation, special payments and the financial redress scheme of the DWP

The DWP has a special payments scheme.  Payments can be made where there has been maladministration (‘things have gone wrong”) such as wrong advice being given to your client by DWP staff, delays, mistakes or discourtesy.

The document “Financial Redress for Maladministration: A DWP staff guide” (April 2012) sets out the DWP’s internal guidance for this scheme.

There are three kinds of payment:

• ex gratia payments: “sum of money paid voluntarily, without any legal requirement to do so”
• extra statutory payments: “sum of money paid over and above that covered by statute (but within the scope of the legislation’s broad intent)”
• financial redress: “money paid as part of redress. This may include sums to recompense for extra costs incurred and/or sums to recognise the impact of poor service on the customer”.

An ex gratia payment can be:

• for loss of statutory entitlement, caused by maladministration
• for actual financial losses, where extra costs have been incurred because of maladministration
• a ‘consolatory payment’ of between £25 and £500.

The Financial Redress scheme also says that the DWP can offer:

• an apology
• an explanation of what happened
• to put things right (for example to change a procedure).

These are all potentially valuable outcomes.

It is worth remembering that in a discrimination claim a County Court cannot order the DWP to apologise or explain what happened. The County Court can make an injunction order for the DWP to do something, but this will be a long process, can put your client at risk of costs. There is no guarantee that they will win their case or, even if they do, that they will get the court to order an injunction.  It is important to think carefully about what outcome your client wants when you are thinking about taking action about discrimination, and what is the best way of securing that outcome.

It is also important to remember that if your client accepts any settlement through this scheme, they may be “compromising” any discrimination claim which means that they will not then be able to bring a claim in the County Court about the same issue. You may need to take specialist advice about this.

There is more detailed DWP guidance Financial Redress for Injustice Resulting from Maladministration: A Guide for Special Payment Officers (pdf) (December 2013). Annex D of that guide refers to the Parliamentary and Health Service Ombudsman’s Principles for Remedy, which includes “treating people without bias, unlawful discrimination or prejudice”.

The DWP has a guide to using the DWP’s complaint procedure.

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Making a Complaint to the DWP

The DWP has a Customer Charter. It states that

“You can trust us to:

• Do what we say we will do
• Be helpful, polite, and treat you fairly and with respect
• Try to understand your circumstances
• Follow processes correctly.”

If you are dissatisfied with the way that the DWP has treated your client, you can make a complaint. The DWP has a guide to using the DWP’s complaint procedure.

A complaint can be an effective way of raising an issue that is about discrimination.

What should you say in a complaint to the DWP?

In the complaint you should set out clearly:

• what went wrong: if you think that something the DWP did was unfair treatment or discrimination, say so, and explain why
• how the poor treatment or discrimination affected your client
• what your client wants to happen – how the DWP can put it right
• ask for any apology, explanation or compensation you are seeking.

What has gone wrong?

It is important to be clear about what you think has gone wrong, so that you follow the correct procedure and time limits. It is important that you think about the best way to challenge a decision from the welfare benefits perspective, and the grounds for doing so.

Challenging a decision that you can appeal: If you wish to challenge a decision, then you may need to appeal. When the DWP told your client about the decision, they should have also told them how to challenge it. Your client may be able to ask for a revision or to appeal the decision.

Challenging a decision that you cannot appeal: If your client is unhappy about a decision, but it is not a decision that they can appeal, then you may wish to make a complaint. Check the list of non-appealable decisions (pdf). Judicial review can be a remedy of last resort when your client is faced with an unappealable decision.

Complaining about the way your client has been treated by the DWP, or how their claim has been handled: You can make a complaint about:

• Any practices and procedures that are discriminatory or unfair
• Discourtesy or bad behaviour by staff
• Wrong advice or information
• Delays in dealing with your client’s claim that are too long
• Poor administration

Your client can seek compensation, special payments and the financial redress scheme of the DWP.

Case Studies 1-3 include examples of complaint letters.

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County Court – discrimination claims

If a service provider or public authority has discriminated against you, you can bring a claim against them in the County Court.

The County Court can hear claims about:

• Direct discrimination
• Harassment
• Indirect discrimination
• Failure to make a reasonable adjustment
• Discrimination because of something arising in consequence of disability
• Victimisation.

If the claim is about a breach of the public sector equality duty, this is a judicial review claim which will be heard in the High Court (Administrative Court).

The jurisdiction of the County Court to hear and determine claims is set out in Section 114 of the Equality Act 2010.

The remedies that the County Court can award are set out in Section 119 of the Equality Act 2010.

Note: This handbook is intended primarily for generalist and welfare benefits advisers to help them to identify discrimination in the welfare benefits system, and to know how to take action about that discrimination. Taking action about discrimination in the County Court is a complex and difficult area that requires specialist advice. The information given here is not a guide to taking action in the County Court. Some of the main features of the process are mentioned, to help generalist and welfare benefits advisers to make appropriate referrals.

If you are making a referral to a solicitor for help and advice with a County Court discrimination claim, the Solicitors Regulation Authority has general information about what to ask, and what to expect.

If your client wishes to represent themselves in the County Court, in a claim to challenge discrimination, these resources may help them:

• The Civil Justice Council published a guide to bringing and defending a small claim in the County Court (pdf) in April 2013
• The Bar Council published a Guide to Representing Yourself in Court (pdf).
• AdviceNow has published a series of guides on Going to Court.

County Court discrimination claims are not simple claims. It is highly recommended that anyone contemplating making such a claim seeks legal advice about the legal claims, evidence, merits, value, procedure and time limits, even if they then decide to bring the claim themselves. Legal aid is available for discrimination issues.

Procedure

The Civil Procedure Rules (CPR) apply to claims brought in the County Court. Advisers bringing claims in the County Court should be fully familiar with the CPR overriding objective. They should also be familiar with the Civil Procedure Rules, and the costs rules that apply in the different ‘tracks’ for the different kinds of claim (depending on value and complexity). An adviser conducting litigation in the County Court and High Court should have access to the Green Book and White Book.

It is important to be aware of and follow the requirements of the relevant Pre action Protocols.

There is a Practice Direction, which requires that notice must be given to the EHRC of any claim under the Equality Act 2010. This is the Practice Direction on proceedings under enactments relating to equality

The Equal Treatment Bench Book provides useful guidance for judges on how they should deal with the different kinds of people who use the court system.

Costs: The general rules on costs are in Part 44. Reference should also be made to the relevant Practice Directions on costs, including Practice Direction 45 about fixed costs.

Small claims: The Civil Procedure Rules for the small claims track are in Part 27. The costs rules are different for small claims, valued at less than £10,000.

Time limits: There is a time limit of six calendar months (less one day) for Equality Act claims against service providers and public authorities. This is set out in Section 118 of the Equality Act 2010.  The time limit is normally calculated from the date that the discrimination took place. The Act does allow the time limit to run from the date of the last act complained about where there are a series of discriminatory acts, or there is a course of conduct, or a discriminatory “state of affairs”.

Particular care should be taken when dealing with a failure to make reasonable adjustments. The Court of Appeal in an employment case of Matuszowicz v Kingston-Upon-Hull City Council [2009] EWCA Civ 22) confirmed that a failure to make reasonable adjustments is an “omission”, rather than a discriminatory action. Note: this case is from before the Equality Act 2010, though earlier legislation had very similar wording, and it was not about services or public functions where there is a continuing and anticipatory duty to make reasonable adjustments.

The time limit period in a reasonable adjustment case can run from a period which is much earlier than a claimant expects. This could be when it becomes clear that your client will not be provided with information in an accessible format, or when they are told that they have to attend a work-focussed interview in person even though they have asked numerous times not to.

The important point for an adviser to note is that cases can be lost easily on time limits. If a case is lost, your client may incur costs. It is much better to seek expert advice about your client’s claim, and about the time limits that apply in that particular case, as soon as possible.

As an alternative, it is possible to argue that for an extension of the time limit, where it is ‘just and equitable’ for the Court to extend time. That argument can be risky. It is important to show clear grounds for that kind of time limit extension. Again, this is another reason why it is important to get early, specialist advice.

EHRC Legal Support Project: The EHRC is currently running a Legal Support Project for social security discrimination claims.

The Legal Support Project provides advice and funding to help individuals who have experienced discrimination to pursue legal claims. Applications to the EHRC must be from solicitors and specialist advice centres only. Applications must be for social security matters where there is a potential breach of part 3 of the Equality Act 2010.

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D

Decision maker’s guides for DWP staff

The Department for Work and Pensions published its decision makers guidance for DWP staff who make decisions about benefits and pensions.

The DWP also publishes the guidance it provides for decisions about UC, PIP, and contribution-based ESA and JSA. This is known as ‘advice for decision making’.

Not all the documents produced in the DWP guidance fully reflect the duties of the DWP under the Equality Act 2010. It is useful to remember that there may be additional duties upon the DWP, under the Equality Act 2010, which the DWP have not included in their own guidance. Nonetheless, the Equality Act duties are still applicable.

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Defences and exceptions for discrimination

The Equality Act 2010 contains numerous defences and exceptions for unlawful discrimination, including objective justification. This handbook cannot cover all of them and an adviser should check in each case for any possible defence or exception. You should check the Equality Act and the EHRC Code of Practice. If in any doubt, seek specialist advice from the EHRC Advisers Support Helpline.

The main defences and exceptions to note are:

• service providers, who provide services, and public authorities carrying out public functions can lawfully discriminate because of marriage or civil partnership
• it is lawful for service providers, who provide services, and public authorities carrying out public functions to discriminate because of age in relation to people aged under 18 years
• you cannot bring a claim of harassment against a service provider, who provides services or who is exercising a public function, on the grounds of sexual orientation, religion or belief or pregnancy or maternity
• direct discrimination cannot be justified except in the case of age discrimination
• objective justification (‘a proportionate means of achieving a legitimate aim’) can be a defence for: direct age discrimination, all forms of indirect discrimination, and discrimination because of something arising in consequence of disability
• if a service provider or public authority did not know, and could not be expected to know, that the disabled person had a disability, there will be no claim for discrimination because of something arising in consequence of disability.

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Direct discrimination

The Equality Act 2010 says that direct discrimination is treating someone less favourably because of a protected characteristic.

This is in Section 13 of the Equality Act 2010.

Example: A Work and Health Programme Provider, DullGrey Ltd, tells a claimant who is transgender that they cannot use the toilet facilities at a training venue. All the other training participants are able to use the toilet facilities. This is less favourable treatment. It will be unlawful if, as it appears to be, DullGrey’s conduct is because of the protected characteristic of gender reassignment.

More examples can be found in the EHRC Code of Practice, in Chapter 4.

Direct discrimination is about worse treatment or a denial of choice.

You need to show that someone else treated you less favourably than they treat other people or would treat other people. The person you compare yourself to is called the comparator. Your comparator should be in similar circumstances to you. Section 23 of the Equality Act explains that this includes material circumstances. In the example above, the comparators are the other participants of the training course.

The direct discrimination definition says that less favourable treatment must be related to a ‘protected characteristic’. This means that if you are treated less favourably because you are with someone else of a different race, even if you yourself are not, this will amount to discrimination because of a protected characteristic. You are treated worse because of ‘a protected characteristic’ and do not need to have that characteristic yourself. This is called direct discrimination by association. It doesn’t apply to discrimination because of pregnancy or maternity.

It is also direct discrimination if someone treats you less favourably because they think you have a protected characteristic, even though you do not. This kind of direct discrimination is called discrimination on the basis of perception. It is thought that it can apply to direct disability discrimination, but this is not easy to show. It does not apply to discrimination because of pregnancy or maternity.

It is lawful to treat a disabled person more favourably and direct discrimination cannot be justified except in the case of age discrimination.

Direct discrimination claims should be considered where there is no protection against harassment. You cannot bring a claim of harassment against a service provider, who provides services or who is exercising a public function, on the grounds of sexual orientation, or religion or belief. In those circumstances you should consider a claim for direct discrimination and argue that the ‘harassment’ amounted to a detriment (Section 212 (5) of the Equality Act 2010).

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Disability discrimination

The Equality Act 2010 sets out when disability discrimination is unlawful.

Disability is a protected characteristic under the Equality Act 2010. It is defined in Section 6 of the Equality Act.

The Equality Act 2010 gives a detailed definition of disability. It says that a disability means a physical or a mental condition which has a substantial and long-term adverse impact on your ability to do normal day to day activities.

There are several important points to note about this definition:

• it includes physical and mental health conditions
• the phrase ‘substantial’ means more than minor or trivial
• long term means a condition which has lasted 12 months or more, or is expected to last more than 12 months
• the Equality Act definition disregards the beneficial effects of medication or treatment. For example, if someone takes medication that controls their condition, then the question is: whether they would meet the Equality Act definition if they did not take that medication
• it covers recurrent and remitting conditions, as well as progressive ones so long as they have some effect
• some conditions are expressly excluded from the Equality Act definition, eg alcohol or drug addiction, hay fever, a tendency to steal or to set fires.

Some health conditions are automatically deemed to meet this definition of disability. These conditions include cancer, HIV infection and multiple sclerosis.

Example: A Work and Health Programme Provider, DullGrey Ltd, holds all its events and meetings in one location. That location is a fourth-floor office, and there is no lift for the public to use (the lift is reserved for staff.). That is likely to be disability discrimination, as they have failed to make a reasonable adjustment for disabled people.  The physical feature of the steps to the fourth-floor places disabled people attempting to access their events at a substantial disadvantage. They have failed to take reasonable steps to avoid the disadvantage. They have not altered their lift policy to enable disabled members of the public to use the lift which would make the office accessible for disabled people, who have difficulty climbing four flights of stairs.

Annex 1 of the EHRC Code of Practice contains useful information about the definition of disability in the Equality Act 2010 and the Equality Act 2010 (Disability) Regulations 2010

The Office of Disability Issues has issued statutory guidance (pdf) on ‘matters to be taken into account in determining questions relating to the definition of disability’ in the Equality Act 2010. This guidance should be taken into account by a Court or Tribunal which is determining for any purpose of the Equality Act whether a person is a disabled person, where it appears to be relevant.

The different kinds of disability discrimination: In addition to the other kinds of unlawful discrimination, there are two kinds of unlawful discrimination applicable only to disability:

• discrimination because of something arising in consequence of disability
• a duty to make reasonable adjustments for disabled people

The EHRC has more information about disability discrimination.

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Discrimination

There are six kinds of unlawful discrimination:

• direct discrimination
• harassment
• indirect discrimination
• failure to make a reasonable adjustment
• discrimination because of something arising in consequence of disability
• victimisation.

The Equality Act 2010 says that discrimination by service providers, when providing services or exercising public functions, can be unlawful if it is based on

• age
• disability
• gender reassignment (transgender)
• pregnancy
• race
• religion or belief (but not harassment)
• sex
• sexual orientation (but not harassment)

Service providers can lawfully discriminate because of marriage / civil partnership.

Article 14 of the European Convention on Human Rights can provide protection against discrimination on other grounds.

A claim of discrimination against a service provider or public authority is brought in the County Court.

The Equality Act 2010 sets out:

• the different kinds of unlawful discrimination in Sections 13 to 19 (including direct discrimination, indirect discrimination and discrimination because of something arising in consequence of disability)
• the duty to make reasonable adjustments for disabled people, at Section 20
• two other kinds of prohibited conduct, harassment and victimisation, in Sections 26 and 27.

Sometimes guidance on the Equality Act only uses the term discrimination for conduct which is made unlawful by Sections 13 to 19. In this handbook we use the term discrimination more widely, to refer to any conduct prohibited by the Equality Act 2010, and also more generally when we describe unfair treatment.

It is important to remember that not all discrimination is unlawful.

If a public authority is in breach of the public sector equality duty, this is a public law claim for judicial review which will be heard in the High Court (Administrative Court).

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Discrimination because of something arising in consequence of disability

Discrimination ‘because of something arising in consequence of disability’ happens when a disabled person is treated unfavourably, and this treatment is because of something arising in consequence of the disabled person’s disability.

This is set out in Section 15 of the Equality Act.

Discrimination ‘because of something arising in consequence of disability’ has a slightly misleading name, when it is abbreviated to ‘discrimination arising from disability’. It is important to note that this is different to direct discrimination against a disabled person.

• Discrimination arising from disability is about discrimination that happens because (1) of something arising in consequence of (2) a disabled persons disability.
• Direct discrimination is about discrimination (1) because of a protected characteristic e.g. disability.

Example: A Work and Health Programme Provider, DullGrey Ltd, tell a disabled claimant that they cannot attend a training programme because they are epileptic. That would be direct discrimination: there is less favourable treatment because of the protected characteristic of disability. If DullGrey Ltd had told another disabled claimant that they could not attend a training programme because they had an assistance dog, that would be discrimination arising from disability. In that example, the unfavourable treatment is because of something (the assistance dog) arising in consequence of a disability (a visual impairment).

More examples can be found in the EHRC Code of Practice, in Chapter 6.

There are three other important differences between discrimination arising from disability and direct discrimination:

• No comparator is required. It is about unfavourable treatment. Direct discrimination is about less favourable treatment.
• there is a defence to discrimination ‘because of something arising in consequence of disability’ if it can be shown that the unfavourable treatment is a proportionate means of achieving a legitimate aim
• there is no discrimination if it can be shown that the service provider or public body did not know and could not be expected to know that the disabled person had the disability.

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E

Equality Act 2006

The Equality Act 2006 sets out the powers and duties of the Equality and Human Rights Commission.

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Equality Act 2010

The Equality Act 2010 came into force on 1 October 2010. The Equality Act brought together over 116 separate pieces of legislation into one single Act. The Equality Act 2010 is the primary discrimination law which protects individuals from unfair treatment and promotes a fair and more equal society.

There is an EHRC Code of Practice on Services Public Functions and Associations which sets out what service providers and public authorities should do to ensure they comply with the Act. It is admissible as evidence and courts and tribunals must take it into account where relevant (see Section 15 of the Equality Act 2006).

The EHRC has also published Technical Guidance on the Public Sector Equality Duty.

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Equality and Human Rights Commission: Advisers Support Helpline

The Equality and Human Rights Commission (EHRC) provides an EHRC Advisers Support Helpline.

It is for advisers in the advice sector, solicitors, other organisations that support individuals with their problems, trade unions, and ombudsman schemes.

It is staffed by lawyers. The Advisers Support Helpline can provide telephone-based advice on discrimination and human rights issues and cases.

The Advisers Support Helpline is open in core office hours, Monday to Friday. If staff are engaged, there is an option to leave a message and they will call you back.

The telephone numbers are:

England: 0161 829 8190
Wales: 029 2044 7790

Note: the Advisers Support Helpline is not for individual members of the public. Individual members of the public should contact the Equality Advisory and Support Service (EASS).

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Equality and Human Rights Commission: Duties and Powers

The Equality and Human Rights Commission (EHRC) has duties that include reducing inequality, eliminating discrimination and promoting and protecting human rights.

The EHRC is responsible for enforcing the Equality Act 2010.

The EHRC is accredited by the United Nations as an “A status” national human rights institution.

The enforcement powers of the EHRC are contained in the Equality Act 2006. The powers to take formal enforcement action include:

• inquiries
• investigations
• unlawful act notices
• agreements
• assessments
• compliance notices.

More information about the EHRC’s duties.

More information about the EHRC’s enforcement powers.

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Equality and Human Rights Commission: Equality and human rights resources for advisers

The Equality and Human Rights Commission (EHRC) most useful resources for advisers. This section of their website  includes links to

• the Equality Act 2010 and Human Rights Act 1998
• the latest Adviser Handbooks produced by the EHRC (a brief overview of the Equality Act 2010 for advisers and guidance on quantifying discrimination claims)
• Codes of Practice and Technical Guidance.

It also includes links to information by subject area, including services and public functions.

This also contains a link to information about the EHRC Advisers Support Helpline.

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Equality and Human Rights Commission: Legal Support Project for social security discrimination claims

The EHRC is currently running a Legal Support Project for social security discrimination claims.

The Legal Support Project provides advice and funding to help individuals who have experienced discrimination to pursue legal claims. Applications to the EHRC must be from solicitors and specialist advice centres only. Applications must be for social security matters where there is a potential breach of part 3 of the Equality Act 2010.

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Equal Treatment Bench Book

The Equal Treatment Bench Book is produced by the Judicial College. The most recent version was published in February 2018, with online navigation. There is also a pdf version of the Equal Treatment Bench Book.

The overall aim of the Bench Book is to help ensure that everyone is treated fairly and equally in courts and tribunals. Although it is not a statement of the law, judges are ‘encouraged to take its guidance into account wherever applicable’. It is of relevance in all courts and tribunals

It includes guidance on how a court should treat disabled people who are court users, including those with physical or mental health impairments. The Bench Book also has chapters that cover issues that are relevant for people in vulnerable situations, and people representing themselves (litigants in person).

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European Convention on Human Rights

The European Convention on Human Rights (ECHR) is an international treaty that protects basic human rights. It was drafted in 1950. It is arranged into articles, and each article describes the protection that should be provided by a state for the different human rights. For example, the right to a fair trial is Article 6.

It was signed by the 47 countries in the Council of Europe including the UK. The UK has incorporated the ECHR into domestic law through the Human Rights Act 1998.

In the UK, if our human rights are breached we can take action under the Human Rights Act 1998. If that does not provide an effective remedy, a claim can be taken to the European Court of Human Rights, which sits in Strasbourg, France.

The European Convention on Human Rights should not be confused with European Union (EU) law. Similarly, the European Court of Human Rights should not be confused with European Court of Justice (ECJ).

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Evidence: proving discrimination

If your client wishes to bring a claim in a County Court against a public authority or service provider, and the claim is based on an allegation that the Equality Act 2010 has been breached, they will need to prove their claim. The standard of proof is the balance of probabilities: is it more likely than not?

The Equality Act, and the County Court judges, recognises that discrimination is not always obvious and is often hidden or denied. There are some legal rules that can help you to prove a claim.

Proving entitlement to bring a claim

It is the claimant’s responsibility to show that they are entitled to bring a claim under the Equality Act 2010.

If they say that they have been treated unfairly because they have a protected characteristic, then they must prove that they do have that protected characteristic. This will often not be in dispute. A defendant will often accept that they do have that characteristic, for example they accept that your client is a woman, or that they are in a particular age bracket.

If your client is bringing a claim for disability discrimination, then the defendant will sometimes dispute that they meet the Equality Act 2010 definition of disability. In those circumstances the burden of proving that they do meet the requirements of the statutory definition is upon the claimant.  You should look carefully at the statutory definition. The court may listen to your client’s own oral and written evidence, and evidence from their family and friends, about how their health conditions affect their normal daily activities. You may also want to give to the court, and the defendant, evidence from a doctor or consultant about their health and its impact. If the defendant is disputing disability, then you may wish to seek specialist legal advice to help you to collect the right evidence, so that you can show that your client meets the statutory definition in the Equality Act 2010.

Proving discrimination

In order to decide if there has been unlawful discrimination, the court will usually want to hear and read evidence from your client, other relevant witnesses and the defendant and their witnesses. In discrimination cases, the Equality Act 2010, Section 136 sets out the way that the burden of proof works in discrimination cases.

The court will consider all the evidence, from the claimant and the defendant, to decide if there was discrimination. If the court thinks that the claimant has shown that what happened could have been discrimination, and there is no other explanation for what happened, the court will say that the discrimination is proven. If the defendant can show that there was another explanation, then the court will decide which account is most likely, on the balance of probabilities.

Rules of evidence in the County Court

If a claim is brought in the County Court, the Civil Procedure Rules apply. These are the rules that govern civil litigation, and include rules on service, deadlines, documentation, disclosure, and evidence.

If a claim is allocated to the Small Claims track in the County Court (where the value of the claim is less than £10,000), Part 27 of the Civil Procedure Rules apply. These state that the strict rules of evidence do not apply, and “the court may adopt any method of proceeding at a hearing that it considers to be fair”.

Note: This handbook is intended primarily for generalist and welfare benefits advisers to help them to identify discrimination in the welfare benefits system, and to know how to take action about that discrimination. Taking action about discrimination in the County Court is a complex and difficult area, that requires specialist advice. The information given here is not a guide to taking action in the County Court. Some of the main features of the process are mentioned, to help generalist and welfare benefits advisers to advise and make appropriate referrals.

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F

Finding a specialist discrimination adviser

The use of the Equality Act and the Human Rights Act in welfare benefits advice is a developing area of law. This means that it is not always easy to find a discrimination specialist who is also experienced in welfare benefits advice.

Before you make a referral, you may wish to seek help from the EHRC Advisers Support Helpline which can provide advisers with specialist advice, or the EHRC Legal Support Project which can help with funding for a solicitor to take on a social security discrimination case.

If you wish to make a referral to an experienced solicitor or barrister, to start a claim in the County Court or High Court, you should try to find one who is familiar with litigating against the DWP in discrimination, public law and human rights. There is no one place to look for a specialist in this area. You may need to look in more than one place, ask questions and be persistent.

Here are some tips to help you to start your search (some organisations charge a membership fee):

• Join the Discrimination Law Association. Their briefings cover all areas of discrimination law and they hold events for practitioners across England.
• Join NAWRA. Their events often include speakers who are experienced specialists in both welfare rights and discrimination.
• Join rightsnet and search the discussion forums for tips
• Look at case reports of the latest welfare benefits cases which use the Equality Act, public law and the Human Rights Act. The case reports will tell you who the barristers and solicitors who acted for the individual claimants are
• Look at who is involved in projects such as this Everyday Equality project. (Many of our Editorial Board are very experienced specialists)
• Join, or start, a local group like GMWRAG, who have a strategic casework group, and hold events with specialist speakers.

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First tier Tribunal and Upper Tribunal – Equality Act 2010 powers

The First-tier Tribunal and or Upper Tribunal have no jurisdiction to determine claims about a breach of the Equality Act 2010.

The Equality Act 2010 sets out the enforcement route for contraventions of the Act, in Part 9. Section 113 sets out where enforcement proceedings can be brought. It specifically states three things:

• that enforcement proceedings for any contravention of the Equality Act 2010 must be brought in accordance with Part 9
• that is subject to any express provision which gives enforcement jurisdiction to a court or tribunal (for example an Employment Tribunal has jurisdiction about work cases as set out in Section 120)
• this does not prevent a claim for judicial review.

Section 114 of the Equality Act states that a County Court has jurisdiction to determine claims about whether a service provider or public authority has breached Part 3 of the Equality Act 2010.

The recent case of JA-K v Secretary of State for Work and Pensions (DLA): [2017] UKUT 420 (AAC) (pdf) considered the jurisdiction of the Upper Tier Tribunal. The Upper Tribunal held that they did not have jurisdiction to rule on whether the Equality Act had been breached, when carrying out their statutory functions. Although that judgment did not affect any judicial review powers of the Upper Tribunal (there was no judicial review claim in that case).

In other words, where there has been a contravention of the Equality Act 2010 in a social security matter, there are three different and separate enforcement routes to consider:

• the County Court for breach of the Equality Act 2010
• the usual appeal challenge to the Social Security Tribunals for any breach of the relevant social security legislation
• a judicial review claim in the High Court (the Administrative Court).

It is important to seek specialist advice to ensure the most appropriate enforcement route is taken. This will depend on the facts of the case, the legal issues, and the claimants preferred outcome.

It will still be appropriate, and may be even more important to do so, to raise with the DWP or any service provider, where there have been breaches of the Equality Act 2010, and their duties under the Act. Good strong challenges, with a clear explanation of the law, the merits of the case, and the outcome sought, will still remain crucially important in ensuring compliance with the law. Those challenges can be made by verbal or written representations from welfare benefits advisers.

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Freedom of Information act requests

The Information Commissioners Office provides information on how to make a Freedom of Information request to ask for any recorded information held by a public authority, such as a government department, or local council.

The website www.whatdotheyknow.com has a searchable database of Freedom of Information requests, and the responses.

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Fundamental Rights Agency – handbook on European non-discrimination law

The Fundamental Rights Agency has published a new version of its Handbook on European non-discrimination law (March 2018). It is downloadable and free.

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G

Gender reassignment

The Equality Act 2010 sets out when gender reassignment discrimination is unlawful.

Gender reassignment is a protected characteristic under the Equality Act 2010. It is defined in Section 7 of the Equality Act.

In 2016 a Women and Equalities Committee report recommended that the use of the terms ‘gender reassignment’ and ‘transsexual’ in the Equality Act 2010 are outdated and misleading.

The EHRC agreed with this recommendation. They preferred the umbrella term trans. It is still correct to use the term gender reassignment for clarity when referring to specific provisions in the Equality Act 2010.

See our glossary entry for Trans and Transgender discrimination

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H

Harassment

Harassment can be unlawful. In the Equality Act 2010, there are three types of harassment. It is defined in Section 26.

Harassment by service providers (when providing services or exercising public functions) is unlawful if it is related to age (18 and over), disability, gender reassignment (trans), race and sex.

There are three kinds of unlawful harassment of people who require or use a service, by a service provider:

• Harassment related to a protected characteristic.
  • This happens where someone engages in unwanted conduct related to a relevant protected characteristic that has the purpose or effect of violating another’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
  • This kind of unwanted conduct can include spoken or written words or abuse, imagery, graffiti, gestures.
  • Because the harassment only needs to be related to a protected characteristic, it can be unlawful even where the person making the claim does not have that protected characteristic. Perception and association are included.
• Sexual harassment: unwanted conduct of a sexual nature.
• Less favourable treatment because a person submits to or rejects conduct of an unwanted sexual nature or conduct which is related to gender reassignment or sex.

This is defined in Section 26 of the Equality Act 2010.

Example: A staff member at a Work and Health Programme Provider, DullGrey Ltd, puts up posters during a training course. Those posters ‘make fun’ of people from Ireland and their attitude to work. Two women attending the course wish to bring a claim of harassment. One of the women is Irish, the other is not. They can both bring harassment claims, because they can both say that the staff member carried out unwanted conduct that had the purpose of creating a hostile and offensive environment, related to the protected characteristic of race.

More examples can be found in the EHRC Code of Practice, in Chapter 8.

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Human Rights Act 1998

The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. It incorporates the rights set out in the European Convention on Human Rights (ECHR) into domestic British law. The Human Rights Act came into force in the UK in October 2000.

The Human Rights Act requires all public bodies (like the Department of Work and Pensions and local authorities, hospitals) and other bodies carrying out public functions to respect and protect your human rights.

The Human Rights Act enables people to enforce their Convention rights in the UK in three main ways:

• you can rely on your Convention rights in British courts and tribunals
• public bodies, including courts and tribunals, have a duty to act compatibly with Convention rights
• new laws laid before Parliament have to be compatible with Convention rights, and courts and tribunals, so far as possible, have to interpret laws and give effect to them in a way that is compatible with the Convention.

Section 4 of the Human Rights Act says that if a higher court (eg the High Court, Court of Appeal or Supreme Court) considers that part of an Act of Parliament is incompatible with human rights, it can make a declaration of incompatibility. A declaration of incompatibility does not affect the validity, operation or enforcement of the law. It is for Parliament to decide if it wishes to change the law.

The EHRC has more information about the Convention rights that the Human Rights Act 1998 incorporates into British law.

• Also see:

  • A1P1- Article One of the First Protocol – peaceful enjoyment of possessions
  • Article 3 – freedom from torture and inhuman or degrading treatment
  • Article 6 – right to a fair hearing
  • Article 8 – right to respect for private and family life
  • Article 14 -non-discrimination

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I

Indirect Discrimination

Indirect discrimination happens when an apparently neutral policy is widely applied, and it

• puts people sharing a protected characteristic at a particular disadvantage, and;
• puts an individual claimant at that disadvantage.

In simple terms:  is there a blanket or one size fits all policy that causes some people to be disadvantaged?

It is defined in Section 19 of the Equality Act 2010.

Example: A Work and Health Programme Provider, DullGrey Ltd, have a policy of starting all their training courses at 9am and finishing the courses at 5pm. If a participant leaves early, they are marked down as not having completed the course and need to attend on another day to gain a certificate of attendance. The neutral policy is that all courses, for all participants, start and finish at the same time, and there is a requirement to attend the full day. This puts women at a disadvantage, because more women than men have child and family caring responsibilities, which mean a 9am to 5pm course causes them disadvantage. One course participant, Miranda, was unable to attend a full day course, and she was put at a disadvantage because she did not get a certificate of attendance. DullGrey Ltd would not be able to justify this policy as a proportionate means of achieving a legitimate aim. They could offer courses in two sessions or change start and finish times.

More examples can be found in the EHRC Code of Practice, in Chapter 5.

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Injury to feelings

The County Court can make an award under the Equality Act 2010 Section 119 (4) that the Defendant pays compensation to the claimant for their injury to feelings.

There are guidelines set out for Employment Tribunals (and an addendum (pdf) in March 2018) on how much compensation is appropriate to order a Defendant to pay for injury to feelings. These are known as the Vento guidelines. They can also be used in discrimination claims in the County Court.

The lowest amount that it is appropriate to award for injury to feelings is £900. There are three ‘bands’ of levels of compensation. The upper band is up to £42,900, with only the most exceptional cases expected to exceed that amount for injury to feelings.

If your client wishes to seek compensation for injury to feelings, then it is important to show the court evidence of how the discrimination has affected them. You may wish to do this by preparing a witness statement for your client, explaining the impact on them. It can also be useful to obtain a witness statement about this from family, friends or a doctor, depending on your client’s situation.

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J

Judicial Review

Judicial review cases are normally brought in the Administrative Court, which is a specialist court within the Queen’s Bench Division of the High Court. Some, including some welfare benefits cases, are transferred to the Upper Tribunal. Judicial review cases have their own procedures, practice directions, and rules.

A judicial review claim uses public law to challenge the lawfulness of a law or policy, or the lawfulness of a decision by a public body.

When should you consider bringing a judicial review claim?

If your client wishes to bring a claim to challenge the merits of a decision, they should use the appropriate complaints or appeal process. Judicial review is normally seen as a last resort, to be used where there is no other suitable or effective remedy.

A court that hears a judicial review claim is not being asked to say if the decision is wrong. Rather, the court is being asked to examine the way in which a decision was taken, and whether the decision was taken in accordance with the law. The court could be also asked to examine the lawfulness of a policy or, in some cases, the validity of legislation.

If the court decides that the policy or law was not lawfully made, they can make an order. There are only certain kinds of orders that can be made:

• a declaration that the decision or policy was unlawful
• to quash a decision or policy, and sometimes to ask the public body to re make their decision
• a prohibiting order which tells the public body not to act unlawfully (before a decision is made)
• a mandatory order, which requires the public body to carry out a duty
• an injunction which tells the public body they must do something, or that they must not do something (for example not to pass unlawful regulations).

Remedies in judicial review cases are always at the discretion of the court. This means that even if the claimant succeeds, the court may still choose not to grant the remedy sought.

Can you get Legal Aid for judicial review claims?

Legal Aid is available for judicial review claims. There are strict costs and merits tests to obtain legal aid. The Public Law Project has published a short guide to obtaining legal aid for Judicial Review claims.

Grounds for bringing a judicial review claim

The grounds for bringing a judicial review claim include:

• unlawful discrimination: breach of the Public Sector Equality Duty (Section 149 Equality Act 2010)
• breach of the Human Rights Act 1998
• an error of law or a decision taken without the power to do so
• improper exercise of discretion
• irrationality/ Wednesbury unreasonableness
• procedural irregularity or unfairness

Example: A judicial review claim was brought against the Secretary of State for Work and Pensions, for failing to comply with the Public Sector Equality Duty when making the decision to close the Independent Living Fund. The Court of Appeal held that the decision was in breach of the Section 149 Equality Act duty, as it did not pay due regard to the impact on disabled people. The decision to abolish the fund was quashed.

Procedure for judicial review claims

Part 54 of the Civil Procedure Rules sets out the procedure for judicial review claims.

HM Courts & Tribunals Service also publishes an Administrative Court Guide, which contains useful guidance and information on how judicial review cases work in practice.

Time limits for judicial review claims

The time limit for bringing a judicial review claim is “promptly and in any event not later than 3 months after the grounds to make the claim first arose.” (CPR 54.5) It is important to act quickly if you are considering bringing a judicial review, and to view 3 months as a longstop rather than a target. The court may refuse permission if it is considered that the claim has not been brought ‘promptly’, even if the 3-month time limit has not yet finished.

There is a pre-action protocol for judicial review in the Civil Procedure Rules which must be followed before legal proceedings can be started.

Judicial review ‘Letter before Claim’

The pre-action protocol sets out the requirements for a formal letter before claim, at Annex A. The wording of this letter is crucial for a successful case. The letter should say why the decision is wrongly made, ask for full reasons for the decision, give a clear time limit for a response and explain that judicial review will follow if no satisfactory response is given. A well-drafted letter will help both the other side and the court to understand the issues and the basis for the claim and may encourage the issue to be resolved without having to have recourse to the courts. Similarly, a well-drafted response will help you identify the strengths and weaknesses of your client’s case, which will inform any decision-making as the case progresses.

It is strongly recommended that specialist legal advice is sought if you are considering writing a formal letter before claim, prior to a judicial review claim. Legal aid is available for judicial review cases.

Adapting the Letter before Claim to help you solve other problems

Even where you are only intending to make a strong complaint to resolve a problem, the format of the ‘letter before claim’ is a very useful one to bear in mind. By adapting the structure of the letter, you will have a clear well-argued letter that will help you to resolve any claim constructively.

A strong complaint letter should include: (this is not a full, formal list)

• The details of the client – and how they are affected by the decision being made
• The decision that is challenged
• Any additional specific request for a complaint process, review, mandatory reconsideration etc
• Any relevant history of the process of making that decision
• Why the decision is unlawful / unfair
• Any specific errors or problems that you can explain
• Any specific errors in complying with the public authority’s own stated policies or guidance
• Any relevant guidance from the EHRC Code of Practice
• Any breach of the Equality Act 2010 or Human Rights Act 1998
• What action the claimant wants the public authority to take – this might be giving full reasons, changing the decision, making a reasonable adjustment
• Details of any information or documents requested
• Details of action the claimant will take (and when) if no satisfactory response

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L

Lawful and unlawful discrimination

To find out if unfairness or unfair treatment is lawful or unlawful discrimination, an adviser should check:

• Does the Equality Act 2010 say it is unlawful? If there has been unfairness or unfair treatment, but it is not connected to or to do with one of the Equality Act protected characteristics, it will not be unlawful under the Equality Act 2010.
• Discrimination which may be unlawful under the Equality Act 2010 is about unfair treatment because of who we are, or something about us, such as our age, sex, race The Equality Act 2010 calls these nine characteristics the ‘protected’ characteristics. This is not a closed list. For example, age discrimination has only recently been added as a protected characteristic to the Equality Act. The government is looking at adding caste in the future.
• Is there is an Equality Act 2010 exception, defence or justification? If so, it might be lawful discrimination. Discrimination which may be unlawful under the Equality Act 2010 can be lawful if there is an exception or defence. This might be because:
  • the unfair treatment is not because of an unlawful discriminatory reason
  • there is a defence
  • it’s not a type of unlawful discrimination
  • the person being unfair doesn’t have responsibilities under the Equality Act.

• Is the unfairness or unfair treatment by a public authority? Is the reason one of the grounds covered in the Human Rights Act 1998? Has another human right been breached? If another human right has been ‘engaged’, then you may be able to use Article 14 of the European Convention on Human Rights. The Human Rights Act 1998 sets out prohibitions upon public bodies against discrimination because of personal characteristics (called ‘grounds’ in the Act). That list is wider because it allows for the list of grounds to be extended by saying that discrimination because of ‘other status’ could be unlawful.

There are six kinds of unlawful discrimination:

• direct discrimination
• harassment
• indirect discrimination
• failure to make a reasonable adjustment
• discrimination because of something arising as a consequence of disability
• victimisation.

The Equality Act 2010 says that discrimination by service providers, when providing services or exercising public functions, can be unlawful if it is based on:

• age
• disability
• gender identity
• pregnancy
• race
• religion or belief (but not harassment)
• sex / gender
• sexual orientation (but not harassment)

The reason for the unfairness or unfair treatment may still seem to be unfair ‘discrimination’ even though it’s not unlawful. This is lawful discrimination – and it can still be challenged through advocacy and campaigning.

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Legal Aid

Legal Aid is available for help with discrimination, welfare benefits and judicial review. However, the kind of help available varies depending on the kind of issue and the advice your client is seeking.

Legal help for discrimination

Civil Legal Aid is available to provide legal advice on discrimination issues. It is a telephone-based service. Access to the service is through a call centre ‘gateway’.

The CLA Gateway number is
Telephone: 0345 345 4 345
Minicom: 0345 609 6677
Opening hours: Monday to Friday, 9am to 8pm, Saturday, 9am to 12:30pm.
Website: https://www.gov.uk/civil-legal-advice

The service is only available to those who are eligible.

If your client checks their eligibility on the Civil Legal Aid website pages, they will be taken to a page asking ‘where did the discrimination occur’. If the query is about discrimination in welfare benefits, their answer should be ‘while you were using a service’ or ‘someone was carrying out a public function’.

The next page will check financial eligibility. If the financial eligibility check is satisfactory, there is an option for your client to call the CLA Gateway direct, or to ask for them for a call-back (the number is the number given above).

Legal aid for welfare benefits

The Public Law Project have produced a guide to assist welfare rights advisers and legal aid providers with a welfare benefits contract, in determining where it might be appropriate to apply for Exceptional Case Funding (ECF) and to assist advisers in making successful applications for ECF.

ECF is potentially available in a range of welfare benefits cases, at various stages in a claim, where the applicant’s particular circumstances require it. This guide is intended to help to identify those cases where making an ECF application is worthwhile and to maximise the chances of making a successful application.

There is a useful article in Legal Action October 2015, entitled ‘Use it or lose it: welfare benefits’ about the availability of legal aid for welfare benefits. The article covers legal aid for appeals on a point of law, exceptional funding, public law challenges and the Equality Act 2010.

Legal aid for judicial review

Legal Aid is available for judicial review claims. There are strict costs and merits tests to obtain legal aid. The Public Law Project has published a short guide to obtaining legal aid for Judicial Review claims.

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Pregnancy discrimination

In the Equality Act 2010, pregnancy and maternity are included as one of the protected characteristics. Pregnancy discrimination is defined in Section 17 of the Equality Act 2010.

Pregnancy discrimination is about unfavourable treatment. In other words it is when a woman is treated badly or put at a disadvantage because of pregnancy or maternity. There is no need to compare her treatment to the way a man is treated.

It is discrimination to treat a woman unfavourably because

• she is, or has been, pregnant
• she has given birth, and the unfavourable treatment occurs within a period of 26 weeks beginning with the day on which she gave birth (the protected period)
• she is breastfeeding, and the unfavourable treatment occurs within the period of 26 weeks beginning with the day on which she gave birth (the protected period).

The protected period in cases involving service providers and public authorities covers the whole of a woman’s pregnancy as well as 26 weeks following the birth (Section 17). Outside those situations, a woman may argue that she is protected by the sex discrimination provisions. If a woman is treated less favourably because she is breastfeeding a baby who is more than 26 weeks old, that will be direct sex discrimination.

Example: A Work and Health Programme Provider, DullGrey Ltd, tells a pregnant woman that she has been removed from a training course, because she would not want to attend the course when she is pregnant. This is likely to be unfavourable treatment, based on a stereotyped view of pregnancy.

You cannot bring a claim of harassment against a service provider (when providing services or exercising public functions) on the grounds of pregnancy or maternity discrimination. In those circumstances you should consider a claim of harassment related to sex.

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Proportionality – the objective justification test

The test of whether a policy is ‘a proportionate means of achieving a legitimate aim’ applies in indirect discrimination claims, and also in claims about discrimination because of something arising in consequence of disability. This is often known as the ‘objective justification’ test.

In an indirect discrimination claim, the first stage is to identify the relevant provision, criterion or practice. In other words, what is the apparently neutral policy which is causing a problem? What is the one size fits all or blanket policy?

The next stage is to see if it puts, or would put the claimant, and other people who share the same protected characteristic at a greater disadvantage. In other words, does the provision criterion or practice have an adverse impact on that group of people, compared to other people who don’t share that characteristic?

This comparison may be done by using statistics, or the court may say that it is common knowledge that a particular policy affects different groups in a different way, for example a requirement to attend a training course that starts at 9am and finishes at 5pm.

If that adverse impact is shown, then there is indirect discrimination. The next question is whether that is lawful or unlawful.

Thirdly, if the service provider or public authority who is applying the provision, criterion or practice can show that policy is a proportionate means of achieving a legitimate aim, it will not be unlawful indirect discrimination.   It is up to the service provider or public authority to prove that the policy is proportionate, and that it has a legitimate aim.

The court will consider:

• is the aim of the provision, criterion or practice legal and non-discriminatory?
• is the aim a real, objective consideration?
• if the aim is legitimate, is the means of achieving it proportionate?
• is the policy appropriate and necessary in all the circumstances? Does it go too far? Is it more than necessary to fulfil the stated aim?

To decide if a policy is proportionate, a court can evaluate the discriminatory effect of the provision, criterion or practice, and how those effects are balanced against the service provider’s reasons for applying it. The more serious the disadvantage caused by the discriminatory provision, criterion or practice, the more convincing the objective justification should be.

The objective justification test also applies to claims for discrimination arising from disability. However, it is the treatment that must be justified, not the application of a policy – so it is a much more individualised approach.

In claims about disability discrimination, if the service provider has not complied with its duty to make relevant reasonable adjustments, it will be difficult for the service provider to show that the treatment was proportionate.

In claims against public authorities, the extent to which the authority has complied with their public sector equality duties will be a significant factor in determining whether the public authority is able to justify indirect discrimination.

Practical Tip

If your client is challenging a policy of a public authority, then you may wish to consider claims about

• indirect discrimination
• failure to make a reasonable adjustment for disabled people
• breach of public sector equality duty
• breach of public law
• breach of Human Rights Act

If you wish to challenge a policy in a complaint letter, it can be useful to use linked arguments about indirect discrimination, the anticipatory duty to make reasonable adjustments, and the public sector equality duty.

A complaint letter to a service provider about a specific policy could point out

• the need for objective justification
• and if the policy affects disabled people, the positive anticipatory duty on the service provider to make reasonable adjustments.

If a service provider considers in advance whether a policy is justifiable despite its impact on disabled persons, they are likely to find ways in which anticipatory reasonable adjustments can be made. Those anticipatory adjustments would help to avoid minimise any disadvantage and adverse impact.

A complaint letter to a public authority provider about a specific policy could point out

• the need for objective justification
• if the policy affects disabled people, the positive anticipatory duty on the service provider to make reasonable adjustments
• the public sector equality duty to have due regard to the need to eliminate discrimination.

If a public authority has complied with its Section 149 public sector equality duty to have due regard to the need eliminate discrimination, then they should have

• considered if a policy is objectively justifiable (Section 19 (2) (d))
• considered if they can make anticipatory reasonable adjustments to avoid any disadvantage for disabled people generally (Section 20 and Schedule 2 (2) (2))
• thought about whether they can adopt a reasonable alternative method of exercising their public function (Section 20 and Schedule 2 (2) (3)).

This approach can help to remind the public authority of their legal duties in a constructive way, that can also be used as part of a problem-solving strategy to achieve a preferred outcome for the individuals who are affected.

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Protected Characteristics in the Equality Act 2010

If you are treated differently or unfairly because of who you are, that is discrimination. The first step in deciding if the discrimination is unlawful is to find out why the discrimination is happening – what is the reason for the unfair treatment?

The Equality Act 2010 says that unfair treatment is discrimination if it is because of, or something to do with, one of the nine protected characteristics listed in the Act. The protected characteristics are the kinds of characteristics that we all have: our age, our sex or gender, our sexual orientation. These are things that are personal to us, and they can be very important to who we are.

The nine protected characteristics listed in the Equality Act are:

• age
• disability
• gender reassignment (transgender)
• marriage and civil partnership
• pregnancy and maternity
• race
• religion or belief
• sex
• sexual orientation.

The Equality Act 2010 says that discrimination by service providers, when providing services or exercising public functions, can be unlawful if it is based on:

• age
• disability
• gender reassignment (transgender)
• pregnancy
• race
• religion or belief (but not harassment)
• sex
• sexual orientation (but not harassment)

Service providers can lawfully discriminate because of marriage / civil partnership.

Article 14 of the European Convention on Human Rights can provide protection against discrimination on other grounds.

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Provision, criterion or practice (PCP)

The phrase ‘provision, criterion or practice’ is not defined by the Equality Act.  It is used in indirect discrimination (Section 19), and in the duty to make reasonable adjustments (Section 20).

It is meant to have a wide meaning. It can include, for example, any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or provisions. It can include a ‘one-off’ or discretionary decision.

A provision, criterion or practice can also include decisions to do something in the future, for example a policy or criterion that has not yet been applied.

The phrase ‘provision criterion or practice’ is sometimes abbreviated to ‘PCP’.

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Public authorities

For the purposes of the public sector equality duty in Section 149 of the Equality Act, public authorities are those listed in Schedule 19 of the Act.

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Public functions

Part 3 of the Equality Act 2010 sets out the duties on public authorities or other organisations who are exercising a public function.

The Equality Act Section 150 (5) states that a public function is a function that is a function of a public nature for the purposes of the Human Rights Act 1998. A public function could be exercised by a public authority or by another organisation working for the public authority.

Section 29 (6) states that a person must not in the exercise of a public function, do anything that is discrimination (Sections 13 to 19), harassment, or victimisation.

The Act says that only those functions of a public authority which are not services and do not fall within Part 4 (premises), Part 5 (work) and Part 6 (education) of the Act are covered by the public function provisions. Often the public authority will be acting under a statutory power or duty when performing such a function, for example, law enforcement or tax collection.

In most instances when arguing a discrimination claim under the Equality Act, it will not be necessary to say if a public authority is providing services or exercising a public function. It would be relevant if you wish to argue a breach of the public sector equality duty, breach of public law principles, or breach of the Human Rights Act 1998.   In those circumstances you would need to be able to say that the public authority action about which you are bringing a claim, was an exercise of a public function. Note that Schedule 2 (2) (5) of the Equality Act 2010 sets out the slightly different duty to make reasonable adjustments in relation to the exercise of a public function.

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Public law

If you are challenging a decision by a public authority, you should also consider if the actions or decision of the public authority were lawful.

There are well established public law principles developed by case law. Public law principles are about how public authorities should conduct themselves, and about whether they have misused their powers, or failed in their duties.

The basic questions to ask are:

• has the public authority made a decision that is lawful (i.e. in accordance the law, including EU law and the Human Rights Act)?
• has the public authority acted reasonably?
• has the public authority acted fairly?

If a public authority has not acted in accordance with public law principles, your client can bring a judicial review challenge. Judicial review is about whether the law has been correctly applied, and the right procedures have been followed. It can be a fast and very effective way to persuade a public authority to reconsider a decision or force them to take action.

The Public Law Project has published a short guide to public law (pdf).

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Public Sector Equality Duty

The Equality Act 2010 imposes a general duty on public authorities to have due regard to equality when they exercise their public functions. This duty is set out in Section 149. In particular they must have due regard to the need to:

• eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Act
• advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it
• foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

In other words, a public authority should always think about equality, and how they can reduce inequality whenever they are formulating new policies, or when they apply their own policies when they make decisions.

It is not a duty that requires a public authority to take particular steps or actions. They simply need to show that they thought properly about the different aims of the public sector equality duty.

If you think that a public authority did not think about equality when they introduced a new policy, or when they applied it, your client can bring a claim of judicial review, asking the court to make an order that the policy is quashed. The court hearing this kind of claim will not order the public authority to make specific changes to the policy, but they can order the public authority to re-consider their equality duty and the policy.

If you are challenging a policy of a public authority, then you may wish to consider claims about

• breach of public sector equality duty
• indirect discrimination
• failure to make a reasonable adjustment for disabled people
• breach of public law
• breach of Human Rights Act

The general equality duty applies to public authorities listed in Schedule 19 of the Equality Act, and it applies to other people and organisations who are exercising public functions, in relation to those functions.

EHRC Technical Guidance on the Public Sector Equality Duty

More Equality and Diversity Forum resources on the Public Sector Equality Duty

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Race discrimination

In the Equality Act 2010, race is one of the protected characteristics.

It is defined in Section 9 of the Equality Act 2010. It has a non-exhaustive definition. The Act says that race includes:

• colour
• nationality
• ethnic or national origins.

Example: A black man attends an event organised by a Work and Health Programme Provider, DullGrey Ltd, where one of the staff members and other participants make racist remarks about Asian people who live locally. When he challenges them about this, they call him derogatory names and later the DullGrey Ltd manager tells him he can no longer attend their events. This would be race harassment, direct race discrimination and victimisation.

More information from the EHRC about race discrimination.

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Duty to make reasonable adjustments for disabled people

The Equality Act 2010 sets out the duty on service providers, when they are providing services and exercising public functions, to make reasonable adjustments for disabled people (who meet the Equality Act definition of disability).

It is defined in Section 20  and Section 21 of the Equality Act 2010. Schedule 2 of the Act sets out more detail about the duty on service providers and those exercising public functions. Schedule 2 also sets out some significant differences to the way the duty operates for service providers and public authorities, compared to employment situations, and the law on premises (housing) and education.

Example: A Work and Health Programme Provider, DullGrey Ltd has a policy that all their training is provided online. That is likely to cause substantial disadvantage to disabled people, some of whom would not be able to use online training. It would be a reasonable step to provide the training in an alternative format, in order to avoid that disadvantage.

The three parts of the duty

The duty to make reasonable adjustments has three requirements:

• where a provision, criterion or practice (PCP) puts disabled people at a substantial disadvantage compared to those who are not disabled, the service provider must take reasonable steps to avoid the disadvantage
• where a physical feature puts disabled people at a substantial disadvantage, compared with people who are not disabled, the service provider must take reasonable steps;
  • to avoid that disadvantage,
  • or to adopt a reasonable alternative method of providing the service or exercising the function
• where not providing an auxiliary aid puts disabled people at a substantial disadvantage compared with people who are not disabled, the service provider should provide that auxiliary aid.

Disadvantage caused to disabled people

A service provider, or public authority exercising public functions, should make reasonable adjustments when something that they do means that a disabled person is placed at a substantial disadvantage compared to non-disabled people, because of that policy. A substantial disadvantage means a disadvantage that is more than minor or trivial.

If the issue is about the substantial disadvantage caused to a disabled person by an organisation exercising public functions, (Schedule 2 (2) (5)) says that a substantial disadvantage means:

• if the public function is about giving someone a benefit, a disabled person is placed at a substantial disadvantage in relation to getting that benefit
• if the public function involves someone being subjected to a detriment, a disabled person has an unreasonably adverse experience when subjected to that detriment.

An anticipatory duty

The duty on service providers and those exercising public functions to make reasonable adjustments is an anticipatory positive duty owed to disabled people generally.

This means that a public authority should not wait for an individual disabled person to raise an issue about the impact of a policy or process. The public authority should anticipate any problems, by thinking about the likely impact of any procedures in advance, and they should take positive steps to try to avoid disadvantage for disabled people using their services.

It is useful to note the guidance on this in the EHRC Code of Practice: “Because this is a duty to disabled people at large, it applies regardless of whether the service provider knows that a particular person is disabled or whether it currently has disabled customers, members etc.” (Sections 7.22 and 7.33 of the Code of Practice).

The duty on service providers, to be proactive and to anticipate reasonable adjustments they should make, is quite different to the duty on employers and owners of premises, where the duty is a reactive one.

No cost: A service provider or public authority cannot ask a disabled person to pay the costs of reasonable adjustments required for the service provider to comply with the duty.

What is a reasonable adjustment?

The particular adjustment that would be reasonable and appropriate in any situation will depend on a number of factors. Most importantly, there is no one size fits all adjustment. An adjustment should be made that removes the disadvantage for an individual disabled person. What works well for one person, may not be of any help to someone else.

For some ideas on possible adjustments:

• The directory of impairments in Proving disability and reasonable adjustments: a workers guide, by Tamara Lewis ( page 64 onwards)
• Appendix B of the Equal Treatment Bench Book.

What will be reasonable will depend on:

• the type of service being provided
• the nature of the service provider and its size and resources
• the effect of the disability on the individual disabled person
• whether taking any particular steps would be effective in overcoming the substantial disadvantage that disabled people face in accessing the services in question
• the extent to which it is practicable for the service provider to take the steps
• the financial and other costs of making the adjustment
• the extent of any disruption which taking the steps would cause
• the extent of the service provider’s financial and other resources
• the amount of any resources already spent on making adjustments
• the availability of financial or other assistance.

The most important consideration is to ask your client what they think would help them. What will work for one person, may be of no help to another person. It is important to be able to show that the adjustment you are seeking will avoid disadvantage for your client.

The Equality and Human Rights Commission have published an online guide to “Using a service: reasonable adjustments for disabled people” (April 2018).

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Referring a discrimination case

As a welfare benefits adviser, you may wish to take some actions for your clients using equality rights, for example by writing a complaint letter. In some discrimination cases you may decide that further action is required and you want to refer the case to a discrimination specialist.

You should always follow your own organisation’s procedures and requirements for making a referral. Some points that are important to bear in mind in discrimination cases:

• you should always refer a case where it is outside your own competence
• your client’s interests are paramount: you should make a referral when it is in your client’s interests for you to do so
• if you are not sure about what you are able to do, or whether to refer a case, you should seek specialist advice, for example from the EHRC Adviser Support Helpline
• time limits are important in discrimination cases, and also in judicial review, where court action must be taken ‘promptly’. If you have any doubts about the date when the relevant time limit starts to run, seek specialist advice as soon as possible.
• you should ensure that you give your client the appropriate information about why you are making a referral, what they can expect to happen, and what if any costs will be incurred.
• a referral should be made to an experienced specialist in that area of law. Not all discrimination specialists will be familiar with welfare benefits law (many are employment discrimination specialists).

We have provided some tips on finding an experienced discrimination specialist in welfare benefits cases.

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Religion or belief discrimination

In the Equality Act 2010, religion or belief is one of the protected characteristics.

It is defined in Section 10 of the Equality Act 2010.

Religion includes any religion as well as a lack of religion. Belief means any religious or philosophical belief and includes a lack of belief.

Example: A Work and Health Programme Provider, DullGrey Ltd holds support sessions for men who want to improve their digital skills. These are on Friday lunchtimes each week.  This is indirect religious discrimination, as Muslim men would be at a disadvantage compared with men from other religions, as the sessions are at the same time as Friday prayers at the mosque.

More information from the EHRC about religion or belief discrimination.

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Services and service providers

The Equality Act 2010 says that a provider of services is anyone who is concerned with the provision of services to the public, or to a section of the public, whether or not for payment.  The duties on service providers not to discriminate are set out in Section 29.

Services include the provision of goods and facilities.

Examples of services covered by the Equality Act include:

• those provided to the public, or a section of the public, by local authorities
• government departments and their agencies
• voluntary organisations and advice agencies
• hotels, restaurants and pubs
• post offices, banks and building societies
• solicitors and accountants
• telecommunications organisations and public utilities (such as gas, electricity and water suppliers)
• services provided by bus and train operators, railway stations, petrol stations, and airports
• public parks, sports stadia, leisure centres
• theatres, cinemas, hairdressers, nail salons
• shops, market stalls and telesales businesses
• hospitals, and clinics.

Sometimes a service to the public is provided by more than one service provider. It may be that two service providers are responsible for a service, in which case they are likely to have both duties under the Equality Act. (See EHRC Code of Practice, para 11.7)

A service provider should not discriminate:

• in the terms on which they provide a service
• by terminating a service
• by subjecting someone who requires or uses a service to any other detriment.

A service provider should not harass someone who requires or uses a service. A service provider should not victimise someone by refusing or not providing a service, or:

• in the terms on which they provide a service
• by terminating a service
• by subjecting someone who requires or uses a service to any other detriment.

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Sex discrimination

In the Equality Act 2010, sex is one of the protected characteristics.

It is defined in Section 11 of the Equality Act 2010. It refers to a man or a woman.

Example: A Work and Health Programme Provider, DullGrey Ltd, tells a woman that all the advanced level computer programming courses are full, and she must go on a waiting list. Her husband asked to attend the same course the next day and was immediately given a place. This could be direct sex discrimination.

In the Equality Act, there are separate definitions for sexual orientation and gender reassignment (trans). The Equality Act does not presently provide protection on the grounds of non-binary gender.

More information from the EHRC about sex discrimination.

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Sexual orientation discrimination

In the Equality Act 2010, sexual orientation is one of the protected characteristics.

It is defined in Section 12 of the Equality Act 2010. It means a person’s orientation towards people of the same sex, the opposite sex and either sex. It relates to feelings as well as actions, and manifestations such as appearance, dress, and social life.

Example: A staff member at a Work and Health Programme Provider, DullGrey Ltd, persistently holds loud derogatory conversations with a DWP work coach about a gay man, who is attending a week -long training support course. This is likely to be sexual orientation discrimination. As there is no protection against sexual orientation harassment by service providers providing services, or exercising public functions, his claim would be for direct discrimination. He could say that he was subjected to a detriment, and this is covered by the protection in Section 13 (direct discrimination) against less favourable treatment.

In the Equality Act, there are separate definitions for sex and gender reassignment (trans). The Equality Act does not presently provide protection on the grounds of non-binary gender.

More information from the EHRC about sexual orientation discrimination.

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Strategic casework

Casework that makes a difference for others, by seeking a change in the law, or a change to a policy, is strategic casework. This kind of casework is particularly important in welfare benefits advice, when you are thinking about using equality rights. In some cases you may be helping to secure better treatment for an individual client, but in other cases you might be looking at how to challenge the way a public body exercises its discretionary decision making for your client and others – what guidance they are using, what their policy is.

The problems that we try and solve for our individual clients are often the same problems that other people experience. When you see persistent widespread problems, you may want to try to make a wider strategic change. Sometimes casework is the best way of achieving that change, sometimes it may be that a combination of casework and campaigning will be most effective.

The most important consideration is what does your client want? If your client wants to solve their problem and they do not have the capacity or resources for their case to be a strategic case (that helps to change the law or a policy) then you should respect that.

What makes a good strategic case? Here are some issues to think about:

• the facts of a good strategic case should be easy to understand and clearly show the impact of the law or policy, and why it needs to be changed
• your client should understand what it means for their case to be a strategic case. It may take many months or years to resolve, and by the time the case is ended, their personal circumstances may be very different, and their immediate problem will have been resolved,
• your client may or may not wish to be the focus and centre of attention of a campaign. You should explain very clearly what is involved, including if their name be kept confidential, if they will have to give evidence (not always), how long it will take, any costs risks.
• some strategic casework may be small scale and local – about a local policy, and that is important. Other strategic casework is about seeking bigger changes to the law or national policy. National organisations like CPAG, Public Law Project, Mind etc are often looking at the possibility of strategic casework to change the law or national policies. You may want to tell them about issues or your clients situation, for example using the CPAG Early Warning System.
• if you think a case you are helping with may be a good strategic case, you should consider contacting the EHRC Adviser Support Helpline They can advise if it is the kind of case that the EHRC would support as a strategic case.

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Time limits

County Court Discrimination claims

There is a time limit of six calendar months (less one day) for Equality Act 2010 claims against service providers and public authorities. This is set out in Section 118 of the Equality Act 2010.  The time limit is normally calculated from the date that the discrimination took place. The Act does allow the time limit to run from the date of the last act complained about, where there are a series of discriminatory acts, or a course of conduct or a discriminatory “state of affairs”.

The important point is that cases can be lost easily on time limits.  If a case is lost, then your client may incur costs.  It is much better to seek expert advice about your client’s claim, and about the time limits that apply in that particular case, as soon as possible.

As an alternative, it is possible to argue that for an extension of the time limit, where it is ‘just and equitable’ for the Court to extend time. That argument can be risky. It is important to show clear grounds for that kind of time limit extension. Again, this is another reason why it is important to get early, specialist advice.

It is important to be aware of and follow the requirements of the relevant Pre action Protocols in the Civil Procedure Rules.

There is a Practice Direction, which requires that notice must be given to the EHRC of any claim under the Equality Act 2010. This is the Practice Direction on proceedings under enactments relating to equality

Time limits in claims about a failure to make a reasonable adjustment

A word of caution about time limits for claims about a failure to make a reasonable adjustment for disabled people.

The normal time limit in the County Court is six calendar months (less one day), from the date that the discrimination took place. The tricky point in working out the time limit for a reasonable adjustment claim, is to decide when the discrimination took place. This is because the claim is about a failure to do something.

Particular care should be taken when dealing with a failure to make reasonable adjustments. The Court of Appeal in an employment case of Matuszowicz v Kingston-Upon-Hull City Council ([2009] EWCA Civ 22) confirmed that a failure to make reasonable adjustments is an “omission”, rather than a discriminatory action.  (Note that this case was before the Equality Act 2010, though the earlier legislation had very similar wording, and it was not about services or public functions where there is a continuing and anticipatory duty to make reasonable adjustments.)

The time limit period in a reasonable adjustment case can run from a period which is much earlier than a claimant expects. This could be when it becomes clear that your client will not be provided with information in an accessible format, or when they are told that they have to attend a work focussed interview in person even though they have asked numerous times not to.

The important point for an adviser to note is that cases can be lost easily on time limits.  If a case is lost, then your client may incur costs.  It is much better to seek expert advice about your client’s claim, and about the time limits that apply in that particular case, as soon as possible.

As an alternative, it is possible to argue that for an extension of the time limit, where it is ‘just and equitable’ for the Court to extend time. That argument can be risky. It is important to show clear grounds for that kind of time limit extension. Again, this is another reason why it is important to get early, specialist advice.

There are many more reported cases about reasonable adjustments in the Employment Tribunal, than in the County Court. The duty on employers to make a reasonable adjustment for their employees is different to the duty on service providers and public authorities to make adjustments for disabled people generally. Therefore, although it is useful to consider those cases, they must be treated cautiously. In a services or public functions case:

• the duty to make a reasonable adjustment is to disabled people generally, not to an individual employee
• it is a positive anticipatory duty
• the EHRC Code of Practice states that the duty is continuing one (para 7.27)

Note: This information does not constitute legal advice about time limits and should not be solely relied upon. If your client is bringing a claim, and there is an issue about time limits, you should seek specialist advice at the earliest opportunity.

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Time limits for Judicial Review Claims

The time limit for bringing a judicial review claim is “promptly and in any event not later than 3 months after the grounds to make the claim first arose.” (CPR 54.5)

There is a pre-action protocol for judicial review in the Civil Procedure Rules which must be followed before legal proceedings can be started.

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Trans and transgender

The Equality Act 2010 sets out when trans and transgender discrimination is unlawful.

Transgender is a protected characteristic under the Equality Act 2010. In the Equality Act it is known as gender reassignment. It is defined in Section 7 of the Equality Act.

The Equality Act 2010 says that you must not be discriminated against because you are transgender – that is your gender identity differs from the gender assigned to you at birth. For example, a person who was born female decides to spend the rest of his life as a man.

To be protected from gender reassignment discrimination, you do not need to have undergone any specific treatment or surgery to change from your birth sex to your preferred gender. This is because changing your physiological or other gender attributes is a personal process rather than a medical one. You can be at any stage in the transition process – from proposing to reassign your gender, to undergoing a process to reassign your gender, or having completed it.

Example: A Work and Health Programme Provider, DullGrey Ltd, tells a claimant who is transgender that they cannot use the toilet facilities at a training venue. All the other training participants are able to use the toilet facilities. This is less favourable treatment. It will be unlawful if DullGrey’s conduct is because of the protected characteristic of gender reassignment.

More information about trans and transgender discrimination by the EHRC.

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Victimisation

In the Equality Act 2010, victimisation has a different meaning to the ordinary everyday sense in which the word is often used. Victimisation in the Equality Act is about being treated badly after you have complained about discrimination or after you have helped someone else with a discrimination claim or complaint. It is intended to provide protection against reprisals for taking action about discrimination.

It is defined in Section 27 of the Equality Act 2010.

There are two parts to the statutory definition:

• what action you took about discrimination: this is called the protected act
• what happened to you because you took action: this is called the detriment.

A protected act could be bringing proceedings under the Act, giving evidence in relation to proceedings under the Act, making an allegation that a person has contravened the Act or doing any other thing for the purposes of or in connection with the Act.

Detriment could include refusing to provide a service, terminating a service or providing a service on less favourable terms.

Example: A staff member at a Work and Health Programme Provider, DullGrey Ltd, puts up posters during a training course. Those posters ‘make fun’ of people from Ireland and their attitude to work. Two women attending the course want to bring claims of harassment. After they make a complaint about the harassment to DullGrey Ltd, they are told they cannot attend any other training courses provided by DullGrey Ltd, who is the only provider in their area. This is likely to be unlawful victimisation.

More examples can be found in the EHRC Code of Practice, in Chapter 9.

A chronology of events can be very helpful in identifying victimisation claims. Once a chronology has been prepared it is often possible to see a sequence of actions that are victimisation, following a complaint about discrimination.

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What does your client want?

One of the first, and certainly one of the most important things that an adviser should think about is ‘what does your client want to happen’? In short, your client wants you to help them solve their problems. Your client does not know if the best solution is offered by using welfare rights law or by using equality rights. Their priority is gaining the best outcome.

As an adviser your role is to help them by explaining their options, so they can make an informed choice about what action to take. When you explain the possible options, you should take into account what their preferred outcome is. Do they want an apology, to get their benefit back, a home visit, help with navigating UC online, better treatment, someone to hear and listen to them and treat them with respect?

Sometimes using equality rights can help secure an outcome that is not always possible through welfare benefits routes.

Equality rights and human rights are about restoring respect and dignity. Equality rights can help to solve your client’s problems, they give an adviser more tools and options, and they also help to restore dignity and respect to your client.

A fundamental characteristic of an empathetic, supportive casework service which challenges unreasonableness and discrimination is that caseworkers show clients that they recognise them as being of equal dignity, worth and respect. When we use positive Equality Act 2010 rights, public law and human rights to make appropriate challenges in our everyday interactions with public officials in the DWP and Job Centre, we can achieve wider changes that will restore respect and dignity to those people whose vulnerability requires them to use the welfare of the state.

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