Is it discrimination?

This section is for welfare benefits advisers and others working in community groups and advice organisations. It contains practical tips and tools to help you identify discrimination issues in welfare benefits

For example, you may be helping an agoraphobic client who has been repeatedly refused a home based medical assessment by the Department of Work and Pensions (DWP). The client’s benefits have been stopped as a sanction when she failed to attend an assessment over an hour away. This section of the handbook will help you to identify that there may be discrimination which is unlawful under the Equality Act 2010.

More information

You may also find it useful to look at these other resources in our handbook:

  • An A to Z about equality. A plain English A to Z glossary of all things equality related, including legal terms and concepts.
  • Case studies. There are six practical case studies about using equality rights to solve problems in welfare benefits advice, including example letters and responses, and three short policy case studies focusing on the equality impacts of welfare benefits rules.
  • ‘Is it discrimination?’ poster. This simple downloadable poster is to help advisers and others working in community and advice organisations, to identify unlawful discrimination. This poster is designed to be used in interview rooms or waiting rooms.

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).

Below are the answers to our FAQs about using equality rights.


Question: How can you recognise when something is unlawful discrimination?

 Answer: To help you start to identify discrimination, answer these four simple questions:

  • Has there been unfairness or unfair treatment?
  • Is the unfairness something to do with one of the protected characteristics?
  • What happened?
  • Who was being unfair?

The next four questions will help you work out what kind of discrimination it might be:

  • Is your being treated differently or less favourably?
  •  Is someone else being treated better than your client?
  • Is your client facing barriers that cause them a problem?
  • Is there a blanket or one-size-fits-all policy that is causing problems?

These two questions will help you check if it is unlawful discrimination. If there is a defence or justification it might be lawful discrimination.

  • What is the reason for the difference in treatment?
  • Is there an explanation for the apparent difference in treatment?

Question: How do I know if I need to argue that something is discrimination, a human rights issue or a public law problem?

Answer: If you are an adviser and you need help talking through a case, the best place to start is the EHRC Advisers Support Helpline

Before you call them, it is helpful if you:

  • have a clear note about what happened, in chronological order
  • know what outcome your client wants
  • are able to describe the unfair treatment in plain English rather than legal terms, explaining why you think is unfair
  • try to work out the reason for the unfair treatment – is it because of one of the protected characteristics in some way?
  • try to work out which kind of discrimination you think it is. (Don’t worry if it doesn’t end up being the right one. Calling the EHRC is not a test, they are there to help.)

If you think the issue is also about public law, then you may want to take a look at the Public Law Project website. They have guides for advisers and can take on a very small number of cases.


Question: Is it appropriate for an adviser to identify and raise a discrimination issue if a client has not asked about it?

Answer: Challenging discrimination through advice is about empowering people. It is about helping them to understand and use their legal rights to confront and stop discriminatory unfairness. As an adviser your role is to help someone to better understand their rights and show how they can use them to get the outcome they want. If you choose not to tell your client about some of their rights, you could be increasing and prolonging the disadvantage and unfairness they are already facing. Helping someone to understand all their rights is how we can help someone to challenge and stop discrimination now or in the future.


Question: What is the point of raising discrimination as an issue with your client if you don’t know if you can prove it?

Answer: You don’t need to be able to prove discrimination to take some action to stop it.

Discrimination is not always obvious. It is often:

  • something said in a one to one conversation
  • a pattern of events that isn’t immediately apparent
  • the hidden impact of a ‘neutral’ policy.

To take action, you do not need to ‘prove’ your client’s case in advance. You do need to have an arguable, well-reasoned case that explains:

  • how they have been disadvantaged or treated unfairly, and
  • why they think that is connected with a protected characteristic.

What can help you show this?

  • a clear account of events, with dates – your client’s own account is important evidence
  • any patterns of discriminatory behaviour towards your client or other people
  • treatment or actions that don’t have any other good explanation
  • statistics or evidence that shows the impact of policies and decisions on groups of people
  • any contemporaneous supporting evidence eg did your client also talk to their GP about what happened at the time?

Most challenges about discrimination will be resolved outside any court process. For the best chance to help your client get the outcome they want, you should be clear about:

  • what happened
  • what kind of discrimination happened
  • what was the impact of the discrimination on your client
  • what your client wants to happen next and what will solve the problem.

Question: If your client wants the DWP to make a reasonable adjustment for them, what information do they need to give to the DWP about their disability?

Answer:  If your client has told the DWP, or another organisation working for them, that they have a disability and they have explained to them how it affects their daily life, then they should usually accept that, and make sure they do not discriminate. This is because they have a duty to make reasonable adjustments for disabled people generally. This means that they have a positive duty to make sure they do not discriminate against disabled people in the way they provide their services. It is not only a duty not to discriminate against an individual disabled person, but a duty to anticipate and avoid disadvantage for all disabled people.

If your client wants to ask for a reasonable adjustment it is important that they explain that they have a disability and to explain how their medical health affects their normal day to day activities. If your client is claiming Universal Credit, they can add this information to their online journal. You can help them ask to ensure that the DWP have recorded that they have ‘special’ or ‘complex needs’ and needs additional support (these are terms currently used by the DWP). The DWP has internal guidance on working with claimants who have complex needs, and how the DWP should record and act on that information.

If the DWP asks your client for information or medical evidence to help them understand the medical condition and what kind of adjustment would help most, that would usually be reasonable. They are not entitled to say that they will only make a reasonable adjustment if your client provides medical evidence.

When your client tells the DWP about their disability it will usually help to include this information:

  • what is the illness or medical condition (their impairment)
  • how it affects normal activities
  • how the other person’s actions, or treatment, put them at a disadvantage because of your disability
  • some examples of what they could do to alter their actions, and how that would help.

Question: Who decides if your client meets the requirements of the Equality Act definition of disability?

Answer: If a service provider or public authority refuses to accept that your client has a disability, and you are bringing a discrimination claim, it will be the Court who will decide if your client meets the legal definition of disability in the Equality Act 2010.  That definition says that someone has a disability if they have a physical or mental impairment, which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. In this definition, long term means an impairment which has lasted for 12 months or more, or is likely to last for longer than 12 months.

They will want to know details of your client’s physical or mental impairment, how their medical health affects their normal activities, and how it affects any particular activity. If their disability is a recent one, it is sometimes useful to keep a note of how their daily life has been affected.


Question: What if the DWP says they didn’t know your client was disabled (the Equality Act definition of disability) and that is why they haven’t made any adjustments?

Answer: The DWP has a duty to make reasonable adjustments for disabled people generally. This duty applies regardless of whether the DWP knows that a particular person is disabled or whether it currently has disabled customers. When disabled customers request changes to services, the DWP or service provider must already have taken all reasonable steps to ensure that they can be served.

The Equality and Human Rights Commission (EHRC) Code of Practice contains guidance on this issue.

Sometimes there is an issue about what the DWP or a Work and Health Programme Provider knew about your client’s impairment or disability. It is worthwhile checking what information was shared between them. For example, the Work & Health Programme Customer Service states that Job Centre Plus will pass information about a client’s disability status when making a referral.


Question: What can advisers do about unfair treatment that may not be covered by the law but is unjust or unfair?

Answer: Many people experience kinds of discrimination and inequality that is not covered by the Equality Act.  Many people experience discrimination that doesn’t appear at first sight to be covered by the Equality Act. For example, people might be treated badly because of being homeless or poor?

Advisers will often give information and advice on discrimination when we help clients to take action about the unfair treatment they have experienced. For example, when we take action about health inequality, rural inequality, inequality caused by socio economic disadvantage or about poverty. These are all kinds of inequality that we challenge through advice and or social policy or campaigning actions. In cases of unjust or unfair treatment, an adviser can still argue the unfairness of the situation and negotiate an effective solution. An advice agency may also use social policy campaigning actions to improve their clients position, or to advocate for a change, for example the Citizens Advice campaign in 2014 to improve the ESA work capability assessment.


Question: What can we do to challenge lawful discrimination?

Answer: Some unfair treatment is discriminatory and lawful, and some unfair treatment is unlawful discrimination. In cases of lawful discrimination, an adviser may still argue the unfairness of the situation and negotiate an effective solution. An adviser may also use social policy campaigning actions to improve their clients position or to advocate for a change.

The list of reasons that make discrimination unlawful is not completely fixed and can reflect changing attitudes in society.

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 etc. The Equality Act 2010 calls these nine characteristics the ‘protected’ characteristics. 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.

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.

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.

But the reason for the unfairness 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.

The tips in this guide will help advisers to identify discrimination when they are advising clients about welfare benefits. The guide is in three parts:

There is also a checklist for identifying discrimination for you to use in interviews.

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

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).
Questions to help you identify discrimination

How can we recognise when something is unlawful discrimination?

To help you start to identify unlawful discrimination, answer these four simple questions:

  • Has there been unfairness or unfair treatment?
  • Is the unfairness something to do with one of the protected characteristics?
  • What happened?
  • Who was being unfair?

The next four questions will help you work out what kind of discrimination it might be:

  • Is your being treated differently or less favourably?
  •  Is someone else being treated better than your client?
  • Is your client facing barriers that cause them a problem?
  • Is there a blanket or one-size-fits-all policy that is causing problems?

These two questions will help you check if it is unlawful discrimination. If there is a defence or justification it might be lawful discrimination.

  • What is the reason for the difference in treatment?
  • Is there an explanation for the apparent difference in treatment?
An introduction to using short cuts to identify discrimination

 In a busy advice centre it is not always possible to ask all the questions listed above. Plus, when a client is telling you about their problem or situation, they tend to use everyday language rather than technical or legal terms. That’s why it can be useful to have some shortcuts to help identify discrimination.

These can help us to recognise:

  • the kinds of welfare benefits situations where discrimination rights might be relevant or helpful. We will call these ‘flags’. For example, if a client has ‘complex needs; then this will be a flag that they may meet the Equality Act definition of disability and have a right to reasonable adjustments.
  • the kinds of situation where discrimination might be happening. We will call these ‘alarm bells’. For example, if your client is a single parent and she wants to attend a Work and Health Programme Provider course which is only offered full time, this might indicate indirect discrimination because of sex.
  • the kinds of things that our clients might say which let us know that there might be discrimination, and we might want to ask some extra questions. We will call these ‘prompts.’  For example, if your Irish Traveller client tells you that the JobCentre staff said that he was being lazy, and he had to wash and brush up for his next appointment, that might indicate harassment because of race.

It is the adviser’s role to listen carefully. An experienced adviser will listen out for the indications that might indicate an urgent need for advice. or that will prompt them to ask more questions and find out a bit more.

This is especially important when we are thinking about how equality rights can help clients. A client who has had their benefits stopped will come for advice about getting their benefit back, and they are very unlikely to also ask about the failure of the DWP to make a reasonable adjustment. But an experienced adviser will know that when a disabled client has had their benefit stopped because they didn’t attend an appointment with the DWP, they should find out more. The adviser should be asking why their client didn’t attend the appointment – was it for a reason to do with the client’s disability?

All advisers will have their own potential flags, alarm bells and prompts. We have suggested a few below. These are just some examples of what a client might say that indicate an adviser should be thinking about equality and discrimination and ask a few more questions.

Of course, these flags alarm bells and prompts don’t automatically mean that there has been unlawful discrimination. But they can help identify when equality rights could help your clients.

Suggested short cuts:  flags, alarm bells and prompts

Some flags to look out for

Welfare benefits situations where equality rights might be helpful:

  • Your client has been sanctioned because they couldn’t meet the requirements of their claimant commitment
  • You are asking for a scrutiny decision to be made
  • You are asking for a home visit
  • Your client is having problems with maintaining their Universal Credit online account
  • Your client has had multiple sanctions
  • DWP says there is no good cause
  • Your client has complex needs
  • Your client has a vulnerable customer marker
  • You are looking at safeguarding issues for your client
  • You are looking at Reg 88(2)(c) of the Universal Credit Regulations (provides for less than 35 hours work search where “physical or mental impairment” and the decision Maker “considers it reasonable in light of the impairment”).

Some alarm bells to look out for

Situations where there might be discrimination:

  • Is there a blanket policy that doesn’t take account of your client’s situation?
  • Is there a barrier preventing your client from accessing a service?
  • Is your client affected by the way public services are delivered? Are other people affected too – who share a protected characteristic with your client?
  • Is the issue about access to services – eg physical access or the method of delivery?
  • Is your client unable to access a service because the information about it is not accessible for them?
  • Is your client unable to get a benefit or service because of the rigid or inflexible requirements of the application or appeal process?
  • Is there a change or cut to the hours or days of a service that your client uses, so it is now harder for your client to use it?
  • Is a discretionary decision being made fairly?
  • Is a service being moved so your client can’t get there?
  • Is an important service being stopped?

Some prompts

 Things a client might say or do which should prompt you to ask more questions:

  • I can’t cope. I’m off with stress/depression
  • I keep having to explain/justify why they need to change
  • My employer won’t change my duties to accommodate my disability
  • I haven’t been given time off my work search hours by my work coach for my hospital appointment/holiday
  • I’m being teased/harassed
  • The staff there keep making jokes and comments about food
  • The trainer kept making jokes and comments about terrorism
  • The official in charge said I was “aggressive” and “up for it”
  • They said women colleagues wouldn’t like me using the ladies toilets / told me I’d have to use the disabled toilet
  • They kept using my old name
  • They kept describing me as he/she (inappropriate pronoun)
  • They wouldn’t let me take time off for medical appointments
  • They said I had to use the telephone and that was the only way it could be done
  • They said it had to be done online and that was the only way it could be done
  • They said I had to come into the office and that was the only way it could be done
  • They said I had to complete the written form and that was the only way it could be done
  • They said other customers had objected to my presence
  • I asked for specific arrangements but none were made
  • I couldn’t get to the appointment because…
  • They said my wheelchair was a health and safety hazard
  • I can’t do it because I’m on my own with the children
  • I couldn’t make the start time as I have to take the children to school then.

A discrimination interview checklist

This checklist is designed to help busy advisers to ask the key questions to help them identify discrimination. The first half has nine short questions, about the reason for the discrimination and the kind of discrimination. The second half lists some of the short cut indicators that can help you to recognise discriminatory situations.

Download Discrimination Interview Checklist (Word doc.).

Question Notes
Has there been unfairness or unfair treatment?
What is the reason for the unfairness or unfair treatment? Age  /  Disability  /  Marriage and civil partnership
Pregnancy and maternity  /  Race  / Religion or belief
Sex (gender)  /  Sexual orientation  /  Trans
What happened?
What kind of discrimination is it?

Think about:
Different treatment?
Less favourable?
Is your client facing barriers that cause them a problem?
Is there a one-size fits all policy?

Direct discrimination  /  harassment  /  Indirect discrimination  /
Discrimination  because of something arising in consequence of a disability  /
Failure to make a reasonable adjustment  /  Victimisation
Who treated your client unfairly?
If it is a public authority (e.g. DWP) are there other claims? Breach of Public Sector Equality Duty
Public law: unlawful, unreasonable, unfair?
Human Rights
When did it happen?
(check time limits!)
Is there another reason or explanation for the unfair treatment?
What outcome does your client want?

You may also find it useful to look at our Is it discrimination? poster and our Practical Guide to help advisers identify discrimination.

Our handbook contains nine Case Studies. They show:

  • how to identify discrimination issues in welfare benefits advice
  • how equality rights can help to solve problems in welfare benefits advice
  • how to take further action and get more help.

These case studies illustrate how you can identify discrimination issues in welfare benefits, and how you can use the tools in this handbook to help you do that.

The first six case studies are arranged in three parts:

  • Is it discrimination? What happened? What went wrong?
  • How can equality rights help to solve problems in welfare benefits advice? Why did it go wrong?
  • Taking action about discrimination and finding more help. What can you do?

Read the case studies.

Here is an alphabetised list of organisations and websites providing more information and resources that can help you to identify discrimination.  This section also contains resources that may be helpful for your clients.

 AdviceNow

Advicenow is an independent, not-for-profit website, run by the charity Law for Life.  It provides information on rights and the law. Information on discrimination can be found in the ‘Government, law and rights’ section.

AgeUK

A simple introduction to ageism, equality and human rights.

Citizens Advice

The public website of Citizens Advice gives general guidance on rights and includes information on discrimination. Information on discrimination can be found in the Law and Court section of the website.

EHRC

An introduction to your rights under the Equality Act 2010.

An introduction to human rights.

Equally Ours

Equally Ours shares stories about the importance of human rights and how they benefit us all in everyday life.

gov.uk

A simple introduction to the Equality Act 2010.

Rightsinfo

Provides information, videos, and stories to explain human rights, including a section on equality.

Next Steps

If you have identified a discrimination issue when giving welfare benefits advice, the next section of our handbook will help you to see how using equality rights can help you to advise your client in a practical problem-solving way.

 

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