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The laws in place to safeguard people affected by disability are extremely complex. In the first part of a two-part series, Belinda Schwehr looks at the responsibilities of public sector bodies.
Understanding the responsibilities of councils - when exercising public law or private functions - to safeguard those affected by disability from discrimination, requires consideration of the EU Treaties and the EC Equal Treatment Framework Directive, the Disability Discrimination Act (DDA) and subsequent secondary UK legislation, and the case law from the ECJ and UK Courts, interpreting these instruments.
Disability
Any physical/ mental impairment which has a substantial and long-term adverse effect on one’s ability to carry out normal day-to-day activities is within the protection from discrimination in relation to employment, the provision of goods, facilities and services or the disposal or management of premises.
Normal day-to-day activities
The Code of Practice requires consideration of the length of time an activity takes and the manner in which it is carried out. The effect of an impairment on the person’s ability to undertake particular day-to-day activities should be considered in respect of the impact on each activity and the resultant cumulative effect, to ascertain whether this is substantially adverse.
These activities are defined as mobility; manual dexterity; physical co-ordination; continence; ability to lift, carry or otherwise move everyday objects; speech, hearing or eyesight; memory or ability to concentrate, learn or understand; or perception of the risk of physical danger.
In general, day-to-day activities are things people do on a regular or daily basis; not activities which are ‘normal’ only for a particular person, or a small group of people. Section D of the Code provides a list of illustrative capabilities.
Who benefits from the protection against discrimination?
The ECJ has extended the scope of the protection to those indirectly affected by disability.
As was made clear in the EC Equal Treatment Framework Directive 2000/78/EC “any direct or indirect discrimination based on … disability…should be prohibited throughout the Community”.
Direct discrimination occurred when one person is treated less favourably, because of a disability, than another in a comparable situation.
Indirect discrimination was defined as an “apparently neutral provision, criterion or practice [that] would put persons having a … particular disability… at a particular disadvantage compared with other persons unless [it] is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or amending the provision, criterion or practice is deemed a disproportionate burden on the employer.”
It was traditionally understood that indirect discrimination was action which had an indirect effect on those persons categorised as disabled.
However, in Coleman v Attridge Law (C-303/06) (2008), the ECJ held it was unlawful even where the person directly affected by the action or inaction was not themselves disabled, but could demonstrate they had suffered a disadvantage on the basis of someone else’s disability.
Ms Coleman had a disabled child. He required specialised care provided primarily by her. Her contract of employment was terminated in 2005 and she went to the Employment Tribunal, alleging unfair constructive dismissal and less favourable treatment than other employees because she was the primary carer of a disabled child.
The ECJ found that this constituted direct discrimination on the basis that the principle of equal treatment was not limited to safeguarding only those people who themselves have a disability. The ECJ clarified that in such cases it was for the claimant to establish facts from which it may be presumed that there has been direct discrimination after which the burden of proof falls on the respondents, who must prove that there has been no breach of the principle of equal treatment.
This case was considered again nationally by the EAT in EBR Attridge Law LLP (formerly Attridge Law) and S Law v Coleman (2009) following a challenge by Attridge Law that the Employment Tribunal had distorted the DDA by reading in additional words so as to outlaw ‘associative’ discrimination.
The EAT found that the tribunal had jurisdiction to hear the claims, notwithstanding Ms Coleman was not herself disabled and furthermore that the tribunal had been entitled to supply additional words to the Act. Whilst such additions might change the meaning of the DDA, that in itself was not impermissible, provided it did not do so in a manner incompatible with the underlying thrust of the DDA. The proscription of associative discrimination was an extension of the scope of the Act, but it was fully in conformity with the aims of the Act as drafted because the concept of discrimination, on the grounds of disability, remained central.
What is meant by ‘discrimination’?
Discrimination is defined differently throughout the DDA depending on the field with which one is concerned – practitioners need to take care that the specific requirements which apply in specific fields of provision are considered. So, in employment, one needs to be careful not to just consider the definition of discrimination as set out in s.5 of the DDA 1995 but also how this definition has been developed by the changes introduced by the 2003 Regs. and the DDA 2005.
The DDA did not originally distinguish between direct and indirect discrimination, but sought instead to eradicate less favourable treatment where this could not be justified and ‘level the playing field’ through the requirement to make reasonable adjustments and the encouragement of positive discrimination. Broadly speaking the DDA originally identified discrimination as occurring where an alleged wrongdoer “for a reason which relates to the disabled person’s disability, …treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and he cannot show that the treatment in question is justified.”
In addition any failure to comply with the duty to make reasonable adjustments constituted discrimination, unless it could be justified under the DDA. [s.5 and s.20 of the DDA].
To stand a chance of being justified, the reason for the less favourable treatment or for a failure to comply with the duty to make reasonable adjustments had to be both material to the circumstances of the particular case and substantial.
In addition, any failure to comply with a duty to make reasonable adjustments also constitutes discrimination (s.3A(2)) unless it is possible to demonstrate that differential treatment would have been justifiable under s.3A(3), even if the defendant had complied with the duty to make reasonable adjustments (s3A(6)).
In 2000 the EU directive for equal treatment gave prominence to the need to ensure that direct discrimination within employment was eradicated. The Disability Discrimination Act 1995 (Amendment) Regulations 2003 [the ‘2003 Regulations’] was introduced to ensure that the DDA complied in full with the requirements set out in the EU Directive for equal treatment.
The 2003 Regulations inserted a new s.3(A) into the DDA 1995 amending the definition of disability discrimination in the field of employment so to expressly prohibit direct discrimination (s.3A(4)) which it defined as occurring when “a person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person” (s.3A(5).
The effect of this was to differentiate between direct discrimination which could not now be justified on any ground, and failure to comply with the duty to make reasonable adjustments or disability related discrimination which, if the alleged wrong doer could demonstrate it was based on reasoning material to the circumstances and substantial, could be justified.
The introduction of direct discrimination only applies to the duties owed by employers, local authorities towards its members and to qualification bodies. It does not apply more widely to other categories where discrimination on the basis of disability may occur.
Harassment, victimisation and inducement wrongs
Taken together, the Directive, the 2006 Equality Act and the DDA also prohibit harassment, victimisation and instructing, causing or inducing discrimination.
Positive discrimination
The Directive is very clear that the prohibition of discrimination should be without prejudice to measures intended to prevent or compensate for the disadvantages felt by those suffering from a disability. UK legislation is in line with this requirement, in that the DDA definition of discrimination is clear that only treatment which is less favourable is unlawful.
Who is the comparator?
Discrimination within the DDA arises where a person treats another ‘less favourably than he treats or would treat others to whom that reason does not or would not apply’, so in order to ascertain whether treatment is less favourable as a result of disability it is necessary to apply a comparator.
In Clark v TDG LTD (T/A Novacold) (1999) 2 All ER 977 the Court of Appeal was asked to determine whether the dismissal of an employee who could not work for a year, due to an accident, was discrimination.
The firm had defended their actions as not discriminatory on the basis that they would have dismissed a non-disabled person had they been unable to work for a year. The Court of Appeal had rejected this approach, focusing instead on the ‘reason’ for the less favourable treatment. It held that the reason for the dismissal was the fact that he could not work, and the correct comparator was someone who would be able to work. Since the firm would not have dismissed someone who could perform the functions of the employee and the reason for why the person in question could not perform their functions was due to disability, it held that his dismissal was discrimination.
This approach was more recently rejected by the Lords in Lewisham London Borough Council v Malcolm (2008) UKHL 43. This case considered whether possession proceedings issued against someone with a disability amounted to ‘less favourable treatment’.
Malcolm, a secure tenant of the local authority who suffered from schizophrenia, had applied for the right to exercise the right to buy his flat. Prior to the completion of the process, he sub-let the flat without obtaining the local authority’s consent, so had ceased to be a secure tenant (under s93 Housing Act 1985). On discovering the sub-letting, and without knowledge of his medical condition, the local authority gave notice to quit and initiated possession proceedings; which Malcolm sought to defend on the basis that he sub-let whilst ill, and so to evict him would be in breach of the DDA.
The Lords held that in order for the alleged discriminator to be found to have treated someone less favourably for a ‘reason which relates to the disabled person’s disability’ the complainant would need to demonstrate that their impairment played some motivating part in the alleged discriminator’s actions.
The local authority was unaware of his disability at a time that they initiated proceedings. The reason for their action was because Malcolm had sublet his flat and moved out. The Lords overruled Novacold, as Lord Scott of Foscote explained: “Parliament must surely have intended the comparison … to be a meaningful comparison in order to distinguish between treatment that was discriminatory and treatment that was not.” The correct comparator would be a secure tenant with no mental illness, who had sublet. Applying the correct comparator, Malcolm had not suffered any differential treatment and there was no discrimination for the DDA.
When is ‘less favourable treatment’ justifiable?
The DDA specifies within each field of protection what the justification for differential treatment may be. However, there is again a common theme, which is added to in the specific areas.
One must be able to establish that one believes that the conditions upon which the justification was based were satisfied and that, objectively, it was reasonable for one to have formed this opinion.
Anyone seeking to rely on a justification must first have taken into account all the circumstances, including any information which is available, any advice which it would be reasonable to seek, and the opinion of the disabled person. In addition, proper consideration must have been given to the obligation to make reasonable adjustments and this duty compiled with in full or, where it is not, a conclusion has been reached that the making of reasonable adjustments would not eliminate the need to treat a person affect by disability less favourably.
Thereafter the alleged discriminator must demonstrate the situation came within one of the specified conditions for permitting less favourable treatment, namely, that:
- the treatment is necessary in order not to endanger the health or safety of any person (including the disabled person)
- the disabled person is incapable of entering into an enforceable agreement, or of giving an informed consent, and for that reason the treatment is reasonable
- the treatment is necessary because the provider of services would otherwise be unable to provide the service to members of the public
- the treatment is necessary in order for the provider of services to be able to provide the service to the disabled person or to other members of the public
- the difference in the terms on which the service is provided to the disabled person reflects the greater cost to the provider of services in providing the service to the disabled person.
Belinda Schwehr is a specialist in community care law and owner of Care and Health Law
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The Deprivation of Liberty Safeguards under the Mental Capacity Act 2005 have been in place for almost a year. In the first of a two-part series, Rhys Hadden, Hilton Harrop-Griffiths and Jonathan Cowen analyse the three leading judgements since the new regime came into force and predict a steep learning curve.
Deprivation of Liberty Safeguards (DOLS) have had statutory effect since 1 April 2009 and since then have featured in three reported cases, each of which is of interest to local authorities, whether in their role as supervisory bodies, managing authorities or assessors for Primary Care Trusts.
Background
The need for statutory safeguards stems from the decision of the European Court of Human Rights in 2004 in HL v UK, which concerned the detention (but not under the Mental Health Act 1983 (MHA)) of a compliant mentally incapacitated man in Bournewood hospital.
His former carers challenged the decision to detain in the domestic courts and were met with the defence of necessity, a common law doctrine whose use in this case was ultimately approved by the House of Lords. Lord Steyn, however, identified what has come to be known as the Bournewood Gap when he observed that necessity was a useful concept but it did not involve any of the safeguards of the MHA and that neither judicial review nor habeas corpus was sufficient protection against misjudgements and professional lapses in such cases.
The ECtHR’s approach was that HL had been deprived of his liberty for the purposes of Article 5 of the European Convention on Human Rights and that only statutory safeguards would satisfy its requirement that such deprivation had to be in accordance with a procedure prescribed by law.
Closing the gap
The DOLS themselves are set out in the 188 paragraphs of Schedule A1 to the MCA and are extremely complex.
They relate only to adults detained in a hospital or care home (as in section 3 of the Care Standards Act 2000 (‘CSA’)) for the purpose of being given care or treatment, who lack capacity as to whether they should be accommodated there and in circumstances which amount to a deprivation of their liberty.
In essence they enable a ‘supervisory body’, following a series of assessments (including as to eligibility – see below), to authorise a ‘managing authority’ to deprive such a person of his liberty if this is in his best interests in order to prevent harm to him, subject to a review procedure and recourse, if necessary, to the Court of Protection, under section 21A of the MCA.
In the case of a care home, the supervisory body is the local authority for the area in which the ‘patient’ is ordinarily resident or, if he does not have a settled residence, the local authority for the area in which he is present and the managing authority is the person registered under the CSA in respect of it.
The place for these safeguards within the MCA is established by section 4A, which provides that the Act does not authorise anyone to deprive another of his liberty unless:
it gives effect to a decision of the Court of Protection made by a ‘welfare order’ under section 16(2)(a) (i.e. that this is in his best interests) or
it is authorised by Schedule A1, or
it is authorised under section 4B, which concerns life-sustaining treatment.
As regards the making of such an order, section 16A provides that this cannot include a deprivation provision if its subject is ineligible to be deprived of his liberty by the Act by reason of Schedule 1A – nor can this be authorised under Schedule A1.
The purpose of this schedule is in effect to assert the primacy of the MHA where the person concerned is subject to a hospital treatment or community treatment or guardianship regime or, if not so subject, he is ‘within the scope of the MHA’ (i.e. he could be detained under section 2 or 3 of this Act) and where he could otherwise be susceptible to a deprivation under the MCA. Although it is far shorter than A1 it more than matches it for complexity, as illustrated below.
The cases
On 17 July Roderic Wood J gave judgment in W PCT and TB v. V et al [2009] EWHC 1737 (Fam), in which the issue was whether in respect of a deprivation at a care home TB, who had a chronic delusional disorder, was ineligible for the purposes of the MCA. She was not subject to a mental health regime but the judge proceeded on the basis she came within the scope of the MHA, without, however, any analysis of whether she did.
In such a case the next requirement (the first of three conditions set out in paragraph 5 of Schedule 1A) is that “the relevant instrument authorises P to be a mental health patient.” Where the issue is whether the Court of Protection can sanction deprivation the instrument is an order under section 16(2)(a) and where the issue is whether Schedule A1 can sanction this it is a standard authorisation. Where there is no existing instrument to consider the focus is on, respectively, an order as it would be if a provision for deprivation were included in it and an authorisation as it would be if it were given.
A mental health patient is a person accommodated in a hospital for the purpose of being given medical treatment for mental disorder within the meaning of the MHA (but disregarding any exclusion for persons with learning disability). Since a care home was involved rather than a hospital (in effect within the meaning set out in section 275 of the NHS Act 2006), Wood J was able to find that the Court could make a welfare order that provided for her deprivation of liberty there or this could be authorised under Schedule A1.
On 20 November Charles J gave judgment in GJ v. The Foundation Trust et al [2009] EWHC 2972 (Fam). Again, this concerned ineligibility, the case having been brought under section 21A of the MCA in respect of two consecutive standard authorisations for the purpose of GJ (who had been detained under section 3 of the MHA until a month before the first of these) being given treatment for his diabetes in a hospital. The judge found that had he not needed this treatment he would not have again have been detained under the MHA, so that he did not come within its scope for the purposes of Schedule 1A. In any event, the relevant instrument did not authorise him to be a mental health patient.
The particular value of this judgment is that Charles J closely analysed many of the intricacies involved in ineligibility issues, as summarised (albeit at some length) in paragraph 132.
On 11 December Munby J gave judgment in Salford CC v. BJ [2009] EWHC 3310 (Fam). This followed a review of a deprivation provision he had made the year before, concerning a placement in supported living accommodation, where BJ was a tenant and where he received care. Schedule A1 did not apply because this was not a care home and so, as before 1 April, only the Court could sanction a deprivation. The judge did, however, take into account the review procedure set out in the schedule in determining the appropriate nature, intensity and frequency of review to be undertaken by the local authority concerned and the Court.
The future
Whenever there is a significant statutory change it takes time to bed in, to be fully understood by the judges, as well as the lawyers involved, as well as, here, the social work professionals in the front-line. Given the complexity of the DOLS themselves and when they are to be used or not these cases are likely to be only the start of a long learning process.
Rhys Hadden, Hilton Harrop-Griffiths and Jonathan Cowen are barristers at Field Court Chambers
In part two, to be published later this month, the authors will look at aspects of practice and procedure in applications for welfare orders.