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Detriment to claimant in anticipatory reasonable adjustment claims

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Last updated 9th December 2021.

This is a TECHNICAL page on whether the individual claimant is sufficiently affected to be entitled to claim under the (anticipatory) reasonable adjustment duty imposed on service providers, bodies exercising public functions, schools and universities. In other words, what is the test at stage 2 of the two-stage test for this duty?

This type of reasonable adjustment duty generally is discussed at Reasonable adjustments by service providers.

Summary and conclusion

The courts adopt a two-stage approach to the anticipatory reasonable adjustment duty on service providers etc (see Reasonable adjustments by service providers>Two-stage legal test?).

  • Stage 1 is a group test looking at people with that kind of disability. Does the practice etc put these people at a comparative disadvantage, and if so what adjustments would be reasonable?
  • Stage 2, the individual test, only arises if there is an obligation to make reasonable adjustments under Stage 1. Is the individual claimant sufficiently affected to be able to claim for a failure to make those adjustments?

This page is considering the Stage 2 test. The test is unclear. In summary:

  • Under the wording of the Equality Act (below), it might be thought that for a claim against a service provider the claimant needs to have been subjected to a “detriment”, but that for public functions (below) and to a large extent education (below) there need only be a failure to make reasonable adjustments “in relation to” the claimant. A Court of Appeal case MM & DM discusses what “in relation to” means.
  • However in the short term at least, the lower courts may well follow the “real prospect” test (below) in Paulley v FirstGroup, 2017, because it is a Supreme Court decision. The Supreme Court expressed the test as being whether, if the adjustment had been made, there was a “real prospect” that it would have made a difference in the claimant’s case. Paulley was a case on services to the public (ie a service provider). However the Court of Appeal has indicated that the same test is likely to apply to cases on public functions.
  • Whether the claimant was subjected to a “detriment” (below) is another test sometimes applied by the courts, and not just in service provider cases. For there to be a “detriment”, it may be enough that the claimant can reasonably say they would have preferred not to be treated in that way.

Although the legal test is unclear, often it should not be an issue in practice. It seems likely that a court would accept a claimant meets the stage 2 test if the claimant can show there is a “real prospect” that the adjustment would have made a difference in their case, in the sense of alleviating the more than minor or trivial disadvantage, and especially if they can also show a “detriment” in the sense that they would reasonably prefer not to have been treated in that way.

What the Equality Act says

Although courts may follow the Supreme Court’s “real prospect” test from Paulley (and/or the “detriment” test?) as regards both service providers and public functions, the wording of the Equality Act itself seems to say something different:

  • Under EqA s.21(2) there needs to be a failure to comply with the reasonable adjustment duty “in relation to” the disabled claimant. On what this means, see below Different test for public functions at Step 2?
  • It is difficult to work out how the “real prospect” test in Paulley fits into the Equality Act.
  • As to whether the individual claimant needs to suffer a “detriment”: the Equality Act wording seems to require a detriment for claims against service providers (ie those providing a service to the public), but not for claims against other bodies exercising a public function. It is EqA s.29(2) that normally requires a “detriment” in a claim against a service provider. However in a claim regarding the exercise of a public function (not involving a service to the public), EqA s.29(6) does not require a detriment. See below Different test for public functions at Step 2?
  • For education providers such as schools and universities, see Education providers below.

“Real prospect” test

The Supreme Court in Paulley v FirstGroup, 2017 said the test was whether there is at least a “real prospect” that the reasonable adjustment would have made a difference in the claimant’s case, had the adjustment been made. This seems to mean whether there is a real prospect – in the claimant’s case – that the adjustment would have alleviated the substantial (ie more than minor or trivial) disadvantage which the adjustment aims to address.

The Paulley case was about a service provider, but the Court of Appeal has said in a claim against a body exercising public functions that it saw no reason why this test should be different there: R (VC) v Secretary of State for the Home Department, 2018.

I find this “real prospect” test puzzling. Certainly the court’s reasoning for it is puzzling:

  • The Supreme Court in Paulley (para 60) cites Employment Appeal Tribunal decisions which apply this “real prospect” test: see Employment: Reasonable adjustment rules>Would the proposed adjustment reduce the substantial disadvantage. Those EAT decisions are saying that whether there is a real prospect the adjustment would make a difference is relevant in deciding whether it would have been “reasonable” for an employer to have to make a particular adjustment to alleviate the disadvantage for that claimant. The decisions are saying – sensibly – that it would not be reasonable for an employer to have to make an adjustment which has no real prospect of helping the claimant. This makes sense for the reasonable adjustment duty on employers because that duty is assessed on an individual basis. The employment tribunal considers the disadvantage suffered by the particular claimant and what it is reasonable for the employer to have to do in the individual case to alleviate it.
  • However for the anticipatory duty on service providers etc, the court considers “reasonableness”at stage 1 of the two-stage test (above), by reference to people generally with that type of disability. Apart from this “real prospect” point, the Supreme Court in Paulley does seem to have applied the two-stage test. In particular, the court seems to have considered what adjustment would be “reasonable” by reference to what adjustment would be reasonable for wheelchair users as a group, so within step 1. Yet the court uses the “real prospect” test – which according to the EAT cases is part of deciding what is “reasonable” – at step 2 to decide whether the individual has a claim. The Supreme Court does not discuss whether or why this might be legitimate, since it does not mention that the “real prospect” test is part of reasonableness in the employment cases it cites.

Would “detriment” test in Paulley have reached same result?

It is of course very possible that future decisions of the lower courts will follow the Supreme Court’s “real prospect” test – because it is the Supreme Court. However at least for claims against service providers, the test set out in the Equality Act itself seems to be (normally) whether the claimant was subjected to a “detriment” below. (The County Court in Paulley had taken this approach.) It is worth considering whether a “detriment” test instead of the “real prospect” test might still have allowed the claimant in Paulley to bring his claim.

In Paulley there was the issue of whether the reasonable adjustment of the bus driver putting greater pressure on the non-disabled passenger to vacate the wheelchair space would have been successful in the claimant’s particular case, so that the claimant (a wheelchair user) could board the bus. One can understand why the Supreme Court would not want a wheelchair user to be able to claim only it they could show it was more likely than not that pressure from the bus driver would have enabled them to board the bus. Having to show no more than a “real prospect” seems a more reasonable test.

However what if the Supreme Court had applied the wording of the Equality Act, namely EqA s.29? Arguably the claimant had a claim within s.29(1) on the ground that he was discriminated against by the bus company not providing him with the service, even without him needing to show detriment. However if that argument failed, he would probably have had to show that he was subjected to a detriment so as to fall within s.29(2)(c).

It would be for the Supreme Court to decide what “detriment” means. Indeed it might decide that a real prospect that the adjustment would have alleviated the disadvantage was detriment enough.

In any event though, I suggest that under existing case law and guidance, the wheelchair user could have been subject to a “detriment” even if (more likely than not) putting greater pressure on the passenger would not have enabled him to board the particular bus. As discussed under “Detriment” test (below), in Rowley the High Court (looking at the Services Code of Practice) saw a detriment as being something that a reasonable person would complain about, not merely an unjustified sense of grievance. Further there is authority in the context of direct discrimination that it is enough if the claimant can reasonably say they would have preferred not to be treated in that way.

The wheelchair user may reasonably feel better about the situation if the driver has at least tried to pressurise the non-disabled passenger to vacate the space. Putting the point a bit differently, the detriment could be the claimant’s sense of injustice at the driver having done so little to encourage the non-wheelchair user to move.

The lax attitude of the bus company might also deter the individual from undertaking bus journeys in future, limiting their life.

Furthermore, it may well be that an individual does not have to show a detriment from just a single failure to put pressure on a passenger. If the court takes the effect of the bus company’s failure to pressure passengers generally when the claimant is trying to board its buses, then it should not be difficult to show – especially if the claimant uses the company’s buses regularly – that the failure led to the detriment of the claimant being able to get on fewer buses, which must be a detriment.

The courts might well view such things as “detriments”.

“Detriment” test

The “real prospect” test was not the main stage 2 test applied by the High Court in R (Rowley) v Minister for the Cabinet Office, 2021, some years after Paulley. Although the High Court mentioned that test, it mainly considered whether the claimant suffered a “detriment”.

I suggest that according to the wording of the Equality Act this “detriment” test is correct where the claim is against a person providing services to the public (a service provider). Rowley and indeed Paulley were claims against service providers. EqA s.29(2) normally requires someone claiming against a service provider to have been subjected to a “detriment”. (For a claim against a body exercising public functions which are not a service to the public, EqA s.29(6) does not require a detriment: see below Different test for public functions at Step 2?)

What does “detriment” mean? Looking at paragraph 5.10 of the Services Code of Practice, quoted below, the High Court in Rowley saw it as being something that a reasonable person would complain about, not merely an unjustified sense of grievance. See further R (Rowley) v Minister for the Cabinet Office: BSL interpreters>Detriment to the claimant.

5.10 ‘Disadvantage’ is not defined by the Act. It could include denial of an opportunity or choice, deterrence, rejection or exclusion. The courts have found that ‘detriment’, a similar concept, is something that a reasonable person would complain about so an unjustified sense of grievance would not qualify. A disadvantage does not have to be quantifiable and the service user does not have to experience actual loss (economic or otherwise). It is enough that the person can reasonably say that they would have preferred to be
treated differently.
Paragraph 5.10 of the Services Code of Practice, which is actually considering indirect discrimination rather than the reasonable adjustment duty.

Also there is authority – in the context of direct discrimination – that it is enough if the claimant can reasonably say they would have preferred not to be treated in that way: Direct discrimination>What is less favourable? See further para 11.22 of the Services Code of Practice, pointing to paras 9.7-9.9.

I discuss above how the “detriment” test might be applied to the facts of Paulley: Would “detriment” test in Paulley have reached same result?

Different test for public functions at Step 2?

Where there is discrimination in exercising a public function which is not a service to the public, the Equality Act wording seems to have no requirement for the claimant to be subjected to a detriment. The relevant provision is s.29(6) EqA which does not require a “detriment”. Nor is there any mention in the Act of a “real prospect” test. On the wording of the EqA, the disabled individual appears to have a claim provided the public body fails to comply with the reasonable adjustment duty “in relation to” that individual, under s.21(2) EqA. What this means was discussed by the Court of Appeal in MM & DM:

MM & DM v Secretary of State for Work and Pensions, Court of Appeal, 2013
Mental health patients claiming Employment and Support Allowance (ESA) argued that the government was failing to make reasonable adjustments, by not requiring officials to actively consider obtaining further medical evidence (FME) in certain circumstances, such as if information indicated the person was unable to engage effectively with the process. The government argued that s.21(2)(3) EqA barred the two claimants from a remedy because they were suicide risks so that in their particular cases further medical evidence should have been sought even under current arrangements. The Court of Appeal disagreed, holding that the adjustments proposed by the claimants went beyond the current procedure for suicide risks in various ways. For example the proposed adjustments would make it less likely that the need for FME would be overlooked.

However when the case went back to the Upper Tribunal (2015), the tribunal said (wrongly in my view) that the Court of Appeal had not decided whether there was discrimination against the claimants individually. The Upper Tribunal imposed a tougher test of (broadly) whether the individual claimants had shown that the failure to make the adjustment put them at a substantial (ie more than minor or trivial) disadvantage. The tribunal held they had not shown this on the evidence, so their claim failed.

See further MM & DM>Stage 2 test: How far need the claimant be affected by the failure to make the adjustment? and on the same page my Comment: Whether these individuals had a claim (Stage 2 test).

The Court of Appeal in MM & DM was considering whether (if the proposed adjustments were upheld) the government had failed to comply with the reasonable adjustment duty “in relation to” the two individual claimants, ie the test in s.21(2) EqA. The Court of Appeal did not clearly set out how it interpreted that test. However I suggest roughly the Court of Appeal looked at whether the proposed adjustment could potentially have made a difference to the individual claimant. Maybe this is not far from the “real prospect” test later set out in Paulley. (MM & DM>Comment: Whether these individuals had a claim (Stage 2 test).

In MM & DM the Upper Tribunal (2015) was influenced by another public functions case, also from 2013, namely Finnigan v Northumbria Police. There the claimant accepted – the Court of Appeal did not actually decide – that a “detriment” to the claimant was necessary:

Finnigan v Northumbria Police, Court of Appeal, 2013
The police had searched the home of the claimant, a deaf person. The claimant’s lawyers accepted that it was not enough that the police had failed to make the reasonable adjustment of having a British Sign Language (BSL) interpreter available or on standby when searching a deaf person’s home. Therefore the claim failed because the court held it had been possible to establish effective communication with the claimant, so he was not at a detriment.

Then in 2017 the Supreme Court in Paulley, a case on service providers rather than public functions, came up with the “real prospect” test (above). In 2018 the Court of Appeal in VC seems to have thought (though it was not necessary to decide) that this less stringent “real prospect” test would also apply to a body exercising a public function:

R (VC) v Secretary of State for the Home Department, Court of Appeal, 2018
This appeal concerned reasonable adjustments for those with mental illnesses detained under the Immigration Act (public functions).

The Court of Appeal said both parties in Finnigan (above) seem to have accepted that a person cannot claim unless the person has suffered a “detriment” from the failure to make reasonable adjustments. The claimant in the present case did not submit the test was different. However the court accepted there was a detriment to the claimant which would satisfy the Finnigan test. He therefore had a claim. (The court talked of “detriment”, rather than the “substantial disadvantage” approach taken by the 2015 Upper Tribunal in MM & DM).

The court commented that neither party had relied on the Supreme Court decision in Paulley v FirstGroup. Although Paulley was a case on service providers, the Court of Appeal said it saw no reason why the requirement as to detriment should be different in a case on public functions. The “real prospect” test in Paulley was, it said, a slightly less stringent formulation than that in the Finnigan case.

Conclusion on public functions

It is quite possible that courts in future will apply the “real prospect” test in Paulley in cases on public functions, as suggested by the Court of Appeal in VC (or perhaps the “detriment” test).

However in both Finnigan and VC the point was not actually argued by the parties. It seems to me open for a claimant in a public functions case to argue – on the basis of the wording of the Equality Act and the Court of Appeal decision in MM & DM above – that neither a “detriment” nor a “real prospect” is required, and that the courts should follow the Court of Appeal’s test in MM & DM – something like whether the proposed adjustment could potentially have made a difference to the individual claimant.

However maybe this is not far from the Paulley “real prospect” test. Also any lack of detriment will be relevant when deciding what compensation is awarded.

Education providers

The anticipatory reasonable adjustment duty discussed on this page also applies to education providers within EqA Part 6, such as schools and universities. Here the EqA wording on whether a detriment to the individual is required seems closer to public functions than to service providers.

S.85(1)(2) (schools) and s.91(1)(2) (universities, FE colleges etc) do have “detriment” as a residual category, but there are many other ways a claimant can fall within these sections. For example, in the case of universities etc, s.91 does not specify a need for a detriment if there is discrimination in the arrangements for deciding who to admit as a student, or in the way the university etc provides education for the student, or in the way it affords the student access to a benefit, facility or service.

Normally one of these other ways of falling within s.85 or s.91 will apply. If so, it can be argued that the discussion in Different test for public functions at Step 2? above applies, so the focus should be on whether there was a failure to make reasonable adjustments “in relation to” the claimant as discussed by the Court of Appeal in MM & DM.

However it is very possible that in education cases too, courts in future will apply the “real prospect” test in Paulley (or perhaps “detriment”).

History as regards detriment to the claimant

History: DDA 1995

Firstly what did the Disability Discrimination Act 1995 (DDA) say?

  • As regards service providers, ie services to the public, s.19(1) DDA said it was unlawful to discriminate in various ways, including (under para (b)) by failing to comply with the reasonable adjustment duty where the effect was to make it impossible or unreasonably difficult for the disabled person to make use of the service. On what “discrimination” meant in relation to service providers, s.20(2) DDA, said discrimination included failing to comply with the reasonable adjustment duty “in relation to the disabled person”.
  • As regards public functions other than services to the public, s.21B(1) DDA said it was unlawful for a public authority to discriminate against a disabled person in carrying out its functions. On what “discrimination” meant in relation to public functions, s.21D(2) DDA said a public authority discriminates against a disabled person if it fails to comply with the reasonable adjustment duty where the effect is to make it impossible or unreasonably difficult for the disabled person to receive any benefit that is or may be conferred by the carrying-out of the public function, or unreasonably adverse for the disabled person to experience being subjected to any detriment to which a person is or may be subjected by the carrying-out of the public function (unless the failure to comply was “justified”).

It can be seen that the DDA had specific provisions requiring the claimant to be prejudiced by failure to make a reasonable adjustment, either making it unreasonably difficult for the claimant to use the service, or – in the case of a public function – making it unreasonably difficult to receive a benefit or making the experience of a detriment (eg being arrested) unreasonably adverse.

History: Equality Act 2010

The Equality Act 2010 (EqA) replaced the DDA 1995, and has rather different wording. This seems to require a “detriment” (rather than the longer DDA wording), and to require it explicitly only in the case of a claim against a service provider, not for the exercise of public functions. See above What the Equality Act says.

History: Cases

The High Court in R (Lunt) v Liverpool City Council (bailii.org), 2006 was considering the DDA 1995. Unsurprisingly the court said at para 53 – as step five of six steps the court had to address in a case on public functions – that the effect of the failure to make an adjustment must be such as to make it unreasonably difficult for the claimant to access the benefit. This was no doubt under s.21D(2) DDA, above.

In Finnigan v Northumbria Police in October 2013, a case on public functions, the alleged breaches of the reasonable adjustment duty were partly under the DDA 1995 and partly under the EqA 2010. The Court of Appeal said it was common ground between the parties that the differences between the provisions of the two statutes were not material to the issues in the appeal (para 9). The court would concentrate on the provisions of the DDA. The court also said (para 43) it was common ground that the six-step approach adopted by the court in Lunt above also applied to the EqA, mutatis mutandis, including the fifth step of whether the failure made it unreasonably difficult for the disabled person to access the benefit. The court rejected the reasonable adjustment claim because the claimant in this case had not suffered a detriment. On Finnigan and other cases on public functions, see further above Different test for public functions at Step 2?

A couple of months later (December 2013) the Court of Appeal seem to have taken a different approach in MM & DM v Secretary of State for Work and Pensions, another case on public functions. The Court of Appeal seems to have gone on the basis that because proposed adjustments which could affect the claimants went beyond current procedures in various ways, these individuals could claim. The Court of Appeal did not mention its decision in Finnigan. However when the case went back to the Upper Tribunal, the tribunal said (wrongly in my view) that the Court of Appeal was looking at a different question. The Upper Tribunal imposed a tougher test of (broadly) whether the individual claimants had shown the failure to make the adjustment put them at a more than minor or trivial disadvantage. More on the MM & DM case above.

In Paulley v FirstGroup, 2017, a case on service providers rather than public functions, the Supreme Court said that for the claimant to succeed in his reasonable adjustment claim he must not only establish that FirstGroup should have made an adjustment to its provision, criterion or practice, but also “that, had that adjustment been made, there is at least a real prospect that it would have made a difference…” in his particular case. See above “Real prospect” test.

In R (VC) v Secretary of State for the Home Department, 2018, on public functions, the government argued the court “must be satisfied that the failure [to make a reasonable adjustment] caused detriment to the disabled person”. The claimant in VC evidently accepted that the Lunt test survived under the EqA as stated in Finnigan, but argued – and the Court of Appeal accepted – that the claimant had indeed suffered a detriment (the court does seems to have considered whether there was a “detriment” rather than any different wording). However the Court of Appeal saw no reason why the less stringent “real prospect” test in Paulley – a case on service providers – should also apply to a body exercising a public function, though it was not necessary for the court to decide.

In R (Rowley) v Minister for the Cabinet Office, 2021, on a service provider rather than public functions, the High Court – citing Finnigan and VC – said the claimant could only claim if she had suffered a “detriment”. The court decided that she had suffered one. It approached “detriment” having in mind the way this term is described in the Services Code of Practice (para 5.10): something that a reasonable person would complain about; not merely an unjustified sense of grievance. The court said a detriment could arise even if “for … a limited period” (citing VC at para 175). It also said there was “at least a real prospect” that the reasonable adjustment “would have made a difference” (citing VC at para 177) in the present case.

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