We’ve all been a bit splatted by recent Coronavirus issues, but have received some re-invigoration by being invited to this evening’s Staying Inn virtual pub night to do a session on Disability Rights Advocacy. This session was recorded and is available at the Staying Inn webpages.
In the meantime Natalya made a 22 part Twitter thread which forms the basis of this blogpost (tidied up, reordered etc below). This post was written by Natalya (any spelling, grammar and other bloopers are my fault!).
Intro to Reasonable Access
We hope you will find our website as accessible as a largely text-mode thing can be. If you have issues, let us know and we’ll fix what we can. We’re also hoping to increase our other formats of material soon.
Doug created a wonderful toolkit called DART in various text (.doc, PDF, HTML) and audio formats covering the various steps needed to take legal action in England and Wales.
We were asked about template letters for writing complaints. Some of the organisations on our own links page do templates – we recommend searching on the page for templates. We also hope to try and publish some useful content for putting in template letters soon.
Starting to advocate for yourself
While a lot of this session did focus on legal stuff, I deliberately focused on stages before legal action as “pre-legal advocacy” is one of my areas of strength. I don’t much like the legalling as it’s boring and stressful, and we’d all rather get effective access before that point.
Someone asked questions about how to start conversations around getting access. I answered this by saying I tended to create scripts for myself of common issues and dealing with common annoying responses. I try to analyse situations (while being kind to myself about having done my best) so I can keep improving with practice. I do have something in draft about dealing with situations and early complaints which I’ve moved up the TODO list to finish and publish here.
Evidence of discrimination
We were asked about using a video camera to record discrimination happening. We generally approve of this and recommend our evidence gathering webpage to get an idea of the issues, pros and cons.
While good evidence is invaluable in pre-legal complaints and legal complaints, there can be risks to people in gathering evidence. People can react very negatively or aggressively to being recorded and it requires careful situational judgement to ensure you are not put at risk by collecting evidence. Some people experience greater risks than others as characteristics like race, gender and apparent social class can affect how we are each perceived and treated. What is safe for me as a short white middle aged, middle class woman may not be safe for a Black person, or young white man for example! I managed to get this point into the session right at the end.
Starting out with litigation
Some people asked how they could start to take legal action for themselves.
I said that a good starting point was to get a clear idea of what you want to achieve and find out whether that is reasonably likely to happen with options that you can access. Linking up with others who have done it before and finding/creating spaces where people can support one another is a good way. We also recommend the contents of our links and regulations and guidance pages.
We also hope to release a Google Form in the next few days to get details of people who might be interested in engaging with others around advocacy and peer-support in different ways and help Reasonable Access share our knowledge effectively.
How to choose what cases to take or not
We were asked how we decide which cases to take or not. I think it is fair say we each do it differently and that there are no right or wrong answers here.
Esther answered the question saying she considers wider strategic impact and the time and effort it would take. Especially having learned from her past legal experiences how much time, energy and commitment it can take. Esther only sends Letters Before Action (final letter before filing with court) if she is definitely willing to pursue that case to court – specially with large organisations which will receive lots of letters before action so won’t be scared by them.
I feel I’m not that strategic, impact on me and how infuriated I am play a part. I do sometimes send Letters Before Action when I won’t have the spoons to act, because I know the letter can kickstart sense in some cases, or I plan to go to court, but then run out of cope later down the line – which I have taken to an Ombudsman to see if they are any use at all. A lot also depends on how ‘nasty’ the respondent is likely to be, as some organisations are known to be more challenging to litigate than others.
Another friend of mine who can’t do litigation has taken one of their cases to an ombudsman to try and make an impact on the organisation by making them engage with that process and while they have very low expectations of a good outcome – it is better than nothing and wasn’t very much work for them.
Accessibility of litigation and advocacy
A wise activist once said to me – “only do the activism you enjoy”. I am not very good at always following this advice, but if you can find a shape of activism that works to your strengths, it is easier and less exhausting to do it than something which is not you-shaped.
Esther discussed her particular strengths and that she has the education and skills to do detailed letters; read, understand and cite long policy documents and got lots of practice for herself and her friends, and is able to do legal paperwork in short bursts or in the middle of the night if needs be.
Formal litigation does require the ability and capacity to do a lot of reading and writing, learning facts and following some very rigid court systems including deadlines. If a court says something has to be done by a certain date, it has to be done by that date or your entire case can be lost.
Questions were asked about communicating as a deaf person – which I answered by saying it isn’t always easy, but I have the privilege of clear speech and spends a lot of time and energy fighting for access to real-time professional captioning, email access and refusing to use the telephone.
Other questions were asked about managing the legal system as a sight impaired person. We know visually impaired litigants and we don’t think there are any good answers as the reading and writing remains difficult and it can often be difficult or impossible to get the courts or respondents to provide information in accessible formats.
Courts and the legal system are so poorly accessible that before we invited people to support Esther with her QOCS high court case we rushed out two webpages about accessing courts and tribunals and dealing with adjustments in courts and tribunals.
Some of us like Doug have even had to take legal action against the courts themselves for disability discrimination… And we may need to take more cases!
Emotional impact of advocacy and litigation
Several people asked about how we deal with the emotional impact of people saying horrible things about us when we challenge or litigate on disability rights. We don’t have a magic answer, this is an issue we have all faced and continue to face.
Some things which can help are reading my Complaining Cripples Bingo which names some of the ways people and organisations can treat us when we ask for access. I find the Bingo format is great for showing that nastiness is so common that it is predictable and part of a wider structure and not personal to us as individuals. We hope to publish a Bingo version 2 which is a bit tidier and links to suggestions for things people can do to mitigate the horridness.
I also found the academic concept of psycho-emotional disablism to be very helpful. Especially work by a woman called Donna Reeve such as this PDF document. The recognition that every time we are refused access, that ‘hurts us inside’ and that is not our fault, that is the fault of the entity and structures that refuse access.
Other things which really help with the difficult emotional stuff is having friends and supporters, people who have experienced the same, who can remind us that it’s not personal. This is where peer-support communities can be invaluable.
For some of us, and some of the time, the emotional impact of advocacy and litigation may always be too harmful and difficult to us. That has to be OK and all activism and campaigning needs more than one approach. If you can’t do advocacy for yourself, you may be able to do other activism, support other people by doing things like sharing social media posts of other people, sign petitions, donate to Crowd Justice campaigns.
Esther added ideas like proofreading friends’ advocacy stuff, support friends before, during or after court hearings, check in with friends, tell people you support them, send them cake (or other good things of choice) offer things you do have skills at — all of which can be helpful or necessary to the litigation but aren’t the actual litigation itself.
Non litigation options – ombudsmen/regulators
Another non-legal option is to use regulators and ombudsmen services. We’re sometimes sceptical because they are notoriously slow and sometimes less effective than we’d like, but Ombudsmen do have some positives. Using ombudsman and regulator services are free and there are zero legal risks to you personally. Some ombudsmen services may even agree to make access adjustments for you (although you may have to be a bit forceful to get them to do this) and they are not as adversarial as the legal system.
Some like the Financial Ombudsman Service (FOS) can have binding powers to recommend actual change as well as small amounts of compensation. But they won’t usually be able to say that there has been an incident of disability discrimination because usually only a court can do that! And at least one person in chat reported an experience of this ombudsman taking 2 years to achieve nothing on their issue…
We have a webpage in proofing about ombudsmen and regulator services in proofreading stage.
Disability charities and organisations
One of the questions which we didn’t get time to cover was around disability charities and how they can campaign on an issue but then not be supportive of individuals or groups actually trying to enforce the law on those issues. I think it is fair to say Esther, Doug and I all have concerns about large charities and ‘the charity model’ in general.
In short, large charities for disabled people often have different priorities than smaller charities which are “Deaf and Disabled Persons Led (DDPO)” which are “of” disabled people. When your funding and lobbying power with government and similar becomes dependent upon your establishment status then as an organisation you won’t want to ‘rock the boat’ and almost unavoidably prioritise your charity’s financial and other survival over the needs of your beneficiaries… While the government is supposed to engage with DDPOs, in practice they often only actually engage with non-DDPO disabled charities.
We don’t have answers to that, we are aware that by setting Reasonable Access up as a charitable organisation ourselves we have accepted some of those conflicts as a price for some of the benefits of charitable status. We try to be honest about those limits and hope to stay as radical as we can! I think as individuals we are also careful about which larger charities we support, how we engage with them and how we challenge them to be better!
The dreaded Coronavirus and advocacy/litigation
While there is a general rule of not mentioning Coronavirus (Covid19) at The Staying Inn events, there were legitimate mentions of this in terms of advocacy and litigation right now.
Many of us are not leaving the house so we don’t get the chance to experience barriers in the built environment such as steps into premises…. Some of us may have dropped legal challenges because of Coronavirus, either because we feel organisations have more important things to deal with, or because a small business may not survive; some of us (and others) have had to advocate and litigate more than ever to secure or improve rights. I personally have had some issues around phone-only access which became quite critical and I wasn’t accepting Coronavirus as an excuse for when the issue was prevalent before hand. Now more than ever deaf people are struggling with phone and communication barriers – especially as masks become more mainstream.
There are also a lot new barriers appearing as a result of how the Coronavirus pandemic is being handled, often at high level policy relating to restrictions, healthcare, reductions of existing rights and more. I tweeted very briefly range of excellent legal action that has had to be taken because of Covid19 related failings including (in no particular order):
- Leigh Day and others challenging very worrying ‘Do Not Rescusitate’ orders and decisions being applied to disabled and older people during the pandemic.
- Two separate cases challenging the NHS’s overly restrictive policies around access for carer/PAs or communication support.
- Dan Williams and Fry Law and Rachael Andrews and Leigh Day suing the government over their poorly accessible information during the outbreak.
- Over 150 Deaf BSL users, Fry Law and Cloisters taking an EHRC supported potential Judicial Review claim against the government about their lack of provision of British Sign Language/English (BSL/English) interpreters at Westminster briefings. This is also promoted using the WheresTheInterpreter hashtag on Twitter and soon to have a campaign website.
- 11 organisations and Leigh Day challenging the Care Quality Commission (CQC) over their decision to suspend inspections during the pandemic.
- Bindmans and claimant and Rook Irwin Sweeney and 3 claimants (PDF) challenging the government’s lack of decision making policy if healthcare demand exceeds demand during the pandemic.
- Bindmans and families of two autistic children challenged Coronavirus guidance which didn’t recognise the needs of some disabled people to exercise more than once a day or travel to exercise by car.
- Fry Law and over 300 disabled claimants challenging the policies around access to supermarket deliveries despite being at greater risk or having existing deliveries access stopped.
I have definitely missed cases, so consider this a sample of the firms and individuals achieving both large and small changes by the use of strategic and effective litigation!
Certainly from my own experience, having done two cases with legal representation gave me better ideas and skills to consider taking (simpler) cases for myself and informed how I handled the pre-legal stages better.