Sanctions and the Equality Act 2010

Transcription

1 Sanctions and the Equality Act 2010 Tom Royston Garden Court North, 23 July 2015 Introduction 1. This paper outlines: a. which part of the Equality Act 2010 prohibits discrimination in a sanctions context; b. how to spot discrimination; c. practical steps to take in a discrimination claim; d. two kinds of faulty decision making; e. how to prove your case; f. why it is worth running discrimination claims; g. three case studies for us to look at together. 1

2 (a) How the Equality Act categorises a sanction 1. Sanctions arise when: a. a benefit claimant is directed to do something by the Secretary of State for Work and Pensions [ SSWP ]; and b. SSWP decides she has, without good reason, not done it. 2. Both parts of that involve SSWP in the exercise of a public function. 3. Therefore it is unlawful for SSWP to discriminate in exercising those functions: s 29(7) Equality Act 2010 [ EA ] Discrimination is unlawful in respect of a number of protected characteristics: see Chapter 1 Equality Act The most significant one in sanctions cases is disability (s 6 EA). (b) Summarising discrimination law 5. It is frequently argued that a particular sanction is unreasonable because the claimant had a good reason for not carrying out the directed activity. 6. Spotting discrimination often requires only one further question: does the good reason arise because of the person s protected characteristic? 7. So, for example, a claimant might be sanctioned for not writing a CV. She had a good reason, in that she is illiterate. She is illiterate because she has a learning disability. Therefore there is potentially a discrimination claim. 1 SSWP will not necessarily be the only defendant. For example, a work programme provider might be liable. 2

3 (c) What to do about discrimination 8. A victim of discrimination can bring a private law discrimination claim, usually in the county court and to a time limit within 6 months of the event: ss 114 and 118 EA. 9. Legal aid is available: legal- advice 10. You can obtain two main things from a county court: damages (money to compensate for past discrimination) and a court order (to prevent future problems, normally by requiring the defendant to take action of some kind): s 119 EA. Damages 11. Damages may be ordered to compensate for financial loss. For example, if a sanctioned claimant went overdrawn and incurred bank charges, those might be claimed as damages. More significant, in most cases, will be damages for injury to feelings: distress, inconvenience and so on. 12. The most important cases on the appropriate amount of an award are Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871 [2003] ICR 318, 65 and Da'Bell v. National Society for Prevention of Cruelty To Children [2009] UKEAT 0227_09_2809 [2010] IRLR 19, Note that if applying them, you would also have to take into account inflation since they were decided, and the decision in Simmons v Castle [2012] EWCA Civ 1288 [2013] EMLR 3 that general damages awards should from 2013 increase by 10%. Judicial review 3

4 13. If the discrimination seems to exemplify a systemic problem, a public law judicial review claim may be brought in the High Court, and the availability of county court proceedings is not necessarily a bar: R (on the application of MM & Anor) v Secretary of State for Work and Pensions [2012] EWHC 2106 (Admin) (26 July 2012), 58. (d) Positive and negative 14. This seminar is principally about sanctions: subjection to a negative outcome. But don t forget the positive aspect of the Work Programme. 15. The principal purpose of the Work Programme is supposed to be the provision of useful support to help claimants move into the labour market. So where support has been so inappropriate that an unfair sanction has resulted, a claimant is likely to be able to point to loss of an advantage, as well as subjection to a detriment. 16. Take the example of the claimant sanctioned for not drafting a CV. She has perhaps lost money and been caused distress by the process of being sanctioned: discriminatory subjection to a negative outcome. 17. A non- disabled person would (in theory) have drafted a CV, would have received advice on it, and would consequently be at a better chance of getting a job. The disabled claimant has not benefitted from any of that: so there has also been discriminatory exclusion from a positive outcome. 18. This is important for two reasons: a. the claimant can in most cases reasonably complain of loss of a benefit as well as subjection to a detriment, which makes a discrimination claim more valuable; 4

5 b. SSWP cannot avoid a discrimination claim simply by not imposing (or withdrawing) a sanction. He must additionally take positive steps to ensure that (so far as is reasonable) the individual benefits from the support being offered to the same extent as a person without his particular protected characteristic. (e) Proving disability and knowledge 19. Not all protected characteristics give rise to factual disputes about their application. However, disability is often an exception. Defendants to disability discrimination claims frequently say you aren t disabled, and even if you are, I didn t know so couldn t reasonably be expected to take account of it. Disability 20. Disability is defined as a physical or mental impairment with an effect that is substantial [ more than minor or trivial : s 212 EA] and long term [ more than 12 months : Sch 1 2 EA]. Knowledge 21. If SSWP might defend a claim on the basis that he had no knowledge of a relevant disability, it is important to be clear: a. what does/should SSWP know? b. how does/should SSWP know it? 22. Documentary evidence is normally preferable to demonstrate knowledge, and documents created by SSWP best of all. For example, if a person s illiteracy resulting from a learning disability is recorded in an ESA85, it 5

6 will be difficult for SSWP to deny knowledge of that (though an interesting question may arise about the application of Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16, [2005] WLR 967, 32). (f) Why bother? 23. Bringing a claim can produce a range of beneficial direct outcomes: a. damages; b. more useful work- related support; c. public scrutiny of the Work Programme. 24. You will often also find that an indirect outcome is that the claimant is treated better (or more generously) in his ongoing claim. (g) Examples 25. For each of the fictional examples below, consider what might be discriminatory about the client s treatment, and what further questions you should ask: a. Adrian is in the WRAG. The ESA85 accepted that because of the permanent effects of a serious back injury and psychiatric problems, he could not engage in social contact with strangers, and could not undertake more than short journeys by bus or car. Nevertheless he was directed to attend a Work Programme course a long bus ride away on the other side of town, in which he would have to engage in group activities. He contacted SSWP to say he could not go and explained why. SSWP put back the start date several times, but then eventually imposed a sanction. 6

7 b. Beth, aged 21, has a moderate learning disability. She also suffers from generalised anxiety disorder, diagnosed by a consultant psychiatrist, and has spent time in a psychiatric hospital as an in- patient on several occasions. She attended a special school throughout her childhood. She was several months ago moved from ESA to JSA, having scored only 9 points in the WCA, for the descriptor Cannot learn anything beyond a simple task, such as setting an alarm clock. She did not appeal the decision because she did not understand what had happened. She has been attending the Jobcentre when required because her mum reminds her and drops her off at JCP, but she has been sanctioned for failure to fulfil her claimant commitment, which includes an undertaking to complete a CV and to apply for jobs online. She has never learned to use a computer. She sees you with her mum, who tells you she has been suicidal with worry. c. Carla, a lone parent, has two young children. She claims JSA. Her claimant commitment provides for her job search to be for reduced hours, in order to accommodate her child care obligations. However, she was referred to the Work Programme a few months ago and has been required to attend a course for longer hours than provided for in the commitment. She had tried to get friends and family to help out with childcare for the first couple of weeks, but when that has gone wrong she has missed days of the course, arrived late or left early. She has been referred for a possible sanction and was told off very publicly on one occasion when she asked to leave early. Tom Royston Garden Court North 23 July 2015 troyston@gcnchambers.co.uk 7