The claimant had ME/CFS, and also dystonia which affected her speech. She referred a complaint against a county council to the Local Government Ombudsman and requested support because of her and her husband’s disabilities, including one or more face-to-face meetings rather than just using email. The Ombudsman lost the request, and turned down subsequent requests for a face-to-face meeting. As a result she was unable to put her case properly. The County Court awarded damages for failure to make reasonable adjustments, and also other breaches of the Equality Act 2010.
County Court, Leeds. Case No: 3SP00071. Full County Court judgment (pdf).
Facts
In August 2012 the claimant submitted an online complaint to the Local Government Ombudsman (LGO) about the conduct of North Yorkshire County Council, on behalf of herself and her family. In section 4 of the form, which allowed the user to indicate what help they might need to use the service, she indicated that she had severe ME/CFS and dystonia; that her husband had ME/CFS, chronic pain and dyslexia; that it was better if they were seen and receive support; that although email was useful regular meetings were better; that they had a lot of evidence and were not sure what the LGO would need; and that the phone could by difficult because the claimant had intermittent loss of speech (presumably because of her dystonia) and her husband struggled to focus when in a lot of pain.
The LGO transferred the online form into a different format. This transferred all the data automatically through use of a dropdown menu, except for section 4 on reasonable adjustments. The LGO said the person doing the transfer was under instructions to manually copy over anything in section 4, but they didn’t do so. This also meant no ‘red flag’ was visible to alert the investigator to the need for reasonable adjustments.
Over the autumn there was correspondence indicating that the claimant was struggling to scan in and deal with all the evidence. In December 2012 the LGO issued a ‘Provisional View’ (PV) deciding not to investigate the complaint further, on the basis of the documents provided so far. The claimant complained, asking for a face-to-face meeting to allow her to present her evidence. There was a delay after a new investigator was appointed, and in March the claimant again requested a meeting as it became more difficult for her to use the phone. In April the new investigator issued a PV indicating the Council had agreed to offer a remedy of £500. After further complaints by the claimant, she brought County Court proceedings in June 2013, just within the 6 month time limit to cover the December PV. The LGO issued a final decision in April 2015.
County Court judgment
Held: there was a failure to make reasonable adjustments, and also other breaches of the Equality Act 2010. The court awarded compensation for injury to feelings of £7,500, and £2,500 in aggravated damages. It also awarded damages for breach of the Data Protection Act
Reasonable adjustments
The court held there was a breach of the duty to make reasonable adjustments.
The provision, criterion or practice (PCP) is the base position before adjustments are made (Finnigan). Here the PCP that might be subject to reasonable adjustment was the ‘paper-based’ or ‘web-based’ system under which the investigator will normally just look at documents and not meet the complainant.
The LGO argued that it had given extra time for documents to be sent in the light of the claimant’s ‘health difficulties’. However the court pointed out that because of the error in copying information across, the investigator was simply not aware of the claimant’s dystonia which caused her physical and communication difficulties, and had not considered her request for particular adjustments (support and regular face-to-face meetings).
Once a service user had identified potential reasonable adjustments to the service provider, it was for the service provider to show the adjustment was not reasonable (Project Management Institute v Latif, accepted by Dyson LJ in Finnigan). The court found that LGO had not discharged that burden. The court rejected LGO’s argument that the claimant was not put at a substantial disadvantage by their system, or that the provision of ‘extra’ time was sufficient.
The court pointed out that one of LGO’s leafets identified physical meetings as a possible adjustment, and also sign-posting to advocacy services and even funding them if necessary. The court rejected an argument that the LGO’s limited resources simply did not allow face-to-face meetings, which would imply the leafet was a pretence. It was much more likely that the LGO had simply failed to consider reasonable adjustments in this case because the investigator had not seen the request.
The Supreme Court in Paulley had said there must be at least a real prospect the adjustment would have made a difference to the claimant, and the court said that was satisfied in the present case. The court also rejected the LGO’s argument that issuing a PV was not a detriment etc because it was immaterial to the ultimate outcome, since it could be reviewed before the final decision. The court said the issue of the PV was a material and important step. When the PV was issued the investigation was basically complete, and all that was left to do was receive comment on the PV and issue a final decision.
S.15 EqA – discrimination arising from disability
S.15 can apply if a claimant is treated unfavourably because of something arising in consequence of their disability. The court said there was prima facie evidence of this because the letter containing the first PV in December 2012 said it was because LGO knew that with her health problems it was difficult to send documents. The burden of proof to show s.15 did not apply therefore passed to LGO, under s.136 EqA. The court rejected an argument that issuing the first PV was a reasonable exercise of the investigator’s discretion, and held there was a breach of s.15.
The court also held the issue of the second PV was a breach of s.29(2) EqA by ceasing a service.
S.19 EqA – indirect discrimination
The court said that the PCP (the practice) of transferring data automatically except for section 4 was not something that might be reasonably adjusted. However this PCP was indirect discrimination contrary to s.19 EqA. By deliberately choosing not to provide for automatic transfer of all data, LGO exposed every case where section 4 data had been recorded to the risk that the needs described would not be seen by the investigator, as a result of human error. This put disabled people, including the claimant, at a particular disadvantage.The LGO raised a justification defence, but the court held it did not make sense.
Equality Act compensation
The court awarded compensation for injury to feelings of £7,500, at the lower end of the middle Vento band.
It also added £2,500 in aggravated damages, since the way in which the LGO’s defence was conducted had added to the injury, frustration and distress felt by the claimant. One factor was that for all its assertions about limited resources, which would not even stretch to offering the claimant a face-to-face meeting, it had spent in excess of £80,000 defending this case against the claimant, a litigant in person. Her case had been opposed in every way with no acknowledgement of those matters which could easily have been conceded.
Data Protection Act
The court also found breaches of the 4th and 7th data protection principles: personal data being accurate and up to date, and taking appropriate measures against loss or destruction of data. This was partly in respect of the section 4 information which was not passed to the investigator. This gave raise to a right to compensation for damage and distress.
