UK court cases and also the European Convention on Human Rights could help to counter any argument that one has to use friends and family to help access services. The Convention can also help in arguing for a solution consistent with one’s personal autonomy.
Offering an alternative to the telephone
Say a service provider argues that it is not a reasonable adjustment to offer someone who stammers an alternative to contacting them by telephone – or some other adjustment related to a phone call – on the ground that the person is not at a substantial (ie more than minor or trivial) disadvantage because they can just get a friend or family member to phone for them. Or the provider might argue the adjustment is not “reasonable” because someone else could phone for them.
Example: A bank insists on sorting out an issue by phone despite a person’s stammer. Particularly where an issue is complicated, or there is a lot of information to be communicated, the person may find this very difficult and it may simply impracticable. Say the bank argues it does not have to make alternative arrangments available (eg online secure messaging or face-to-face) because the person could have a family member or friend phone on their behalf.
A service provider might also seek to make this argument if someone who stammers argues that use of voice recognition makes a telephone system inaccessible for them.
Domestic arguments (ie not human rights)
The individual’s circumstances, including whether the particular individual has someone who could phone for them, is not the focus of the anticipatory reasonable adjustment duty on service providers: see the third point below. However to deal with two less technical points first:
Firstly, the Employment Appeal Tribunal in Mallon v Aecom, 2021, said tribunals should be cautious assuming that the possibility of help from others such as family and friends was adequate reason not to make a reasonable adjustment. That was an employment case, but this EAT statement could also be helpful in cases on service providers.
Secondly, case law (and the statutory Code of Practice) indicate that reasonable adjustments are not a matter of services being “just about being accessible”, but of providing access as close as reasonably possible to that enjoyed by non-disabled individuals: see Access to service should be as close as possible to that enjoyed by others. This argues in favour of the disabled person (not just someone on their behalf) being able to phone, like non-disabled people.
Thirdly, there is the technical issue that with the anticipatory reasonable adjustment duty on service providers, the court at stage 1 considers whether people with that type of disability generally are at a “substantial disadvantage” rather than the individual claimant, and what adjustments would be “reasonable” for people with that type of disability generally, rather than looking at that individual’s circumstances. However at stage 2 the individual claimant does need to be subject to a detriment in some (rather unclear) way:
- If a “substantial disadvantage” (or a real prospect of avoiding one) is required, then Mallon above should be helpful.
- The courts sometimes talk just of the claimant needing to be at a “detriment”, in which case it may simply be enough that the claimant can reasonably say they would have preferred not to be treated in that way, eg not to be forced to use someone else to phone.
Human rights arguments
The European Convention on Human Rights can also help in arguing against such an argument by a service provider. The tax tribunal decision in LH Bishop below is not a binding precedent, but can be cited, and its discussion of these issues is helpful:
LH Bishop v Commissioners of Revenue and Customs, First-tier Tribunal (Tax), 2013
The tribunal held there was a breach of the European Convention on Human Rights where business owners who could not use a computer because of their disability were not exempted from a requirement to submit VAT returns online.
The tribunal rejected an argument that disabled business owners could just use friends and family to file online returns on the business’ behalf. The tribunal held this would be an unjustified breach of Article 8 (private and family life) of the European Convention. It would also breach Article 14 of the Convention (discrimination).
Paragraphs 658 to 665 of the tribunal decision in LH Bishop support an argument that requiring someone to use family or friends to speak for them as in the bank example above, at least on a financial matter, would breach Article 8 (and also Article 14) of the Convention unless justified. The tribunal pointed out that a person’s friends and family are very much a part of their private life. One case had noted that any physical search of a person interferes with their private life as it might cause embarrassment in front of friends. In a House of Lords case, Lord Bingham had said that Article 8’s purpose is to prevent the state intruding into “the private sphere within which individuals expect to be left alone to conduct their personal affairs and live their personal lives as they chose”. A person would not expect the state to compel them to involve their friends and family in their private business affairs.
Such interference in private and family life within Article 8 is not necessarily unlawful under the Convention, but would have to be justified.
The same may apply to claiming on an insurance policy for example, or claiming social security benefits, if the insurance company or the benefits authority insists there has to be a phone call but the claimant could (but would prefer not to) get a friend to phone for them.
It might also apply in a face-to-face situation. Say a service provider is not willing to wait for someone who stammers to speak, but insists the person has someone with them to speak for them – where the person wishes to keep it private.
For the legal reasoning on why the Convention applies to the Equality Act, see below Why the European Convention is relevant in applying the Equality Act.
More generally, in Enver Şahin v Turkey the European Court of Human Rights (ECtHR) emphasised the importance of personal autonomy in deciding whether sufficient reasonable adjustments have been made:
Enver Şahin v Turkey, ECtHR, 2018
A university in Turkey had not made adjustments to a building to make it accessible for a paraplegic student. The Human Rights court in Strasbourg held this was discrimination contrary to Article 14. Article 14 included an obligation to make reasonable adjustments in this case. The offer of a personal assistant to help with mobility was not sufficient on the facts, given the importance of personal autonomy.
The ECtHR recognised provision of forms of human aid as one measure to ensure personal mobility of disabled people. However, the court said there was nothing to convince it in the present case that the support was offered after a genuine assessment of the claimant’s needs and sincere consideration of its potential effects on his security, dignity and autonomy. The offer disregarded the claimant’s need to live as independently and autonomously as possible.
Also the Turkish court considering the case had not considered whether a fair balance had been struck. It had not sought to identify the claimant’s real needs and the ways and means of meeting them, with a view to enabling him to resume his studies under conditions as similar as possible to those provided for other students, without imposing a disproportionate or undue burden on the authorities
The ECtHR based the importance of personal autonomy on both Article 8 of the Convention (private and family life) and the CRPD.
Enver Şahin was a case on education which falls within the scope of the European Convention. It is not clear if the same argument on personal autonomy would apply to reasonable adjustments in employment for example, where there are doubts on the extent to which the Convention applies.
Why the European Convention is relevant in applying the Equality Act
UK courts must interpret the Equality Act to comply with the European Convention on Human Rights unless to do so would go against a fundamental feature of the Act: see Enforcement of European Convention and HRA 1998>Interpreting UK legislation to comply with the Convention.
Therefore in deciding for example whether it would be a “reasonable” adjustment for the bank in the example above to allow an alternative means of communicating, the court should interpret “reasonable” in a way that avoids unlawful interference in the person’s private and family life. If having family or friends speak for the person would be an unjustified breach of Article 8 (or of Article 14 with Article 8), the bank should not be able to propose that as a viable alternative, rather than a secure online chat for example which respects the person’s privacy.
As well as applying to the reasonable adjustment duty, the European Convention should apply in a similar way to the justification defence under the Equality Act.