Coronavirus should not remove Equality Act obligations

Widespread claims that the Equality Act no longer has full force

We are noticing several disabled people and disabled people’s groups are saying that other organisations are claiming that they don’t have to meet disability Equality Act duties such as properly considering disabled people’s needs, or making adjustments, because of the Coronavirus pandemic.

This is likely to be nonsense!

The Equality Act is still in full force, there have been no legal “easements” to it.

Legal disclaimer

We are not lawyers, this is definitely not legal advice, but some thoughts we have and strategies to try.

Small changes may be legitimate

There may be small changes, such as “what is reasonable”, or what is a “proportionate means to a legitimate aim” which are genuinely reasonable right now.

Reasonableness changes

With ‘reasonableness’ changes, we would argue that the organisation has a duty to consider other ways of achieving the maximum level of access possible for a disabled person. They need to be thinking about alternatives to what is “less reasonable” at this time.

What is proportionate

A legitimate aim to reduce risk of Coronavirus to staff or customers, or a change in resources, but organisations still have to consider whether what they are doing is proportionate. Are organisations properly considering risk?

Some positive examples we have seen

  • The wearing of disposable arm protectors to enable staff to provide hands-on guiding to visually impaired people.

  • Providing verbal guiding while still distancing.

  • PPE being provided to staff who need to get within 2 metres of a customer to assist them.

  • Allowing disabled people to avoid queueing.

  • Ensuring that one-way systems don’t disadvantage disabled people.

Things you might do

The most important strategy we have noticed is to start a dialogue with the organisation.

Don’t take “no” for an answer, it’s often not well informed.

Remain polite at all times, but project confidence in your rights.

Push back

Push back. Don’t take the first (or several) “no” for an answer.

You don’t have to quote the exact bits of the Equality Act, just mention you feel that it is not being correctly understood and followed.

Some ideas:

  • Try a polite challenge. Ask the organisation to reconsider its decision

  • Ask the organisation what consideration they have made to meeting disabled people’s needs.

  • Ask for evidence to justify why access is being refused.

  • Request copies or links to policies they’re relying on. If the policy is long, ask them to say which part they rely on.

  • Ask them to provide evidence of considering disabled people’s needs in their planning.

  • Ask for proof that providing access is justified e.g. what risks they consider exist.

  • Ask what alternative options have been considered.
  • Try a formal request

    If you have tried some pushback strategies and are still not getting anywhere. Make a formal request for access.

    Summarise what you have asked and been told and what access you feel you are entitled to.

    You can mention parts of the Equality Act, although you may need to find the right part to quote.

    A useful one is often the reasonable adjustments duty. Where it is lawful to ask for different or even ‘favourable’ treatment if the alternative is no access.

    Next options

    If you get no reply, or an unsuitable reply, look at our complaints page for ideas.


    We can’t guarantee these strategies will get access 100% of the time, but in our experience they are effective a lot of the time. The more regular disabled people who push back, the less organisations are likely to get away with disablist policies and practices.

    Maybe some organisations will realise that pushback costs them more time and effort than just being accessible and inclusive from the start!

    That’s one of our hopes and aims anyway.

Giving up a complaint or legal case

When to give up

When trying to use the law for social change, knowing when to move on is a key skill. We must all cultivate the ability to decide that continuing isn’t the right choice, in this particular circumstance.

Deciding when to give up on righting a wrong is hard. Sometimes, this can mean that a very large part of your capacity is taking up trying to achieve something which may not be achievable. Often, giving up becomes harder the longer you have pursued the issue, the more intensively you’ve pursued it and the more grievous the wrong was.

Justice done – or not

Giving up doesn’t mean ‘justice has been done’ or that you weren’t wronged. It means you have accepted that, within our current deeply unjust world, it’s not a good use of your own limited capacity to pursue this specific injustice. The systems may be set against you, or you just don’t have the support you need, or it is negatively affecting your mental/physical health, or all of these. Of course, it’s also possible that you’re wrong, but this is unlikely. Stopping pursuing something doesn’t mean you’re accepting it was okay.

(Along the same lines: winning/going through the whole of a process, particularly a legal one, doesn’t mean that ‘justice has been done’ necessarily, particularly when the systems issues that created it remain.)

Why we’re writing about ‘giving up’

Here at Reasonable Access, we like to see stopping focus on something as a good thing: it frees up your focus for different things.

Some examples of situations where no longer pursuing a complaint or case might include if:

  • You don’t think much about other things.
  • The case has become a very big part of your life.
  • It feels like the case is a problem which you, and you alone, are concerned about – maybe your focus on it is much much bigger than other peoples engagement.
  • Dealing with the case is negatively affecting your physical or mental health.
  • You have tried many avenues to addressing the problem, and none of them have helped.
  • People close to you find it difficult when you talk about it or you find yourself talking about little else.
  • Dealing with the other side in the complaint becomes damaging, toxic and too physically or emotionally demanding
  • Financial risks increase with no good way to mitigate them.

Other issues

Sometimes it isn’t the case or the problem but your own life circumstances which change the sensibleness of continuing:

  • You have less time maybe due to a new job or change in family circumstance
  • Other campaigns or issues need to take priority
  • Challenges such as a pandemic, bereavement, job-loss
  • Your personal capacity changes, maybe due to change in impairment impact or detriment to your mental health
  • Who is to blame for discrimination

    It is great when we pursue issues, get a good result and achieve social change. However if we don’t, that isn’t a reflection on us. It is a reflection of the unjust world and systems. We don’t choose to be discriminated against in the first place, and it is unfair that once we have been, we have to decide if or how to fight for change as a result. Choosing not to fight can have a significant impact, as well as choosing to fight – because we can feel like we are letting ourselves or other people down.

    We think, however, that we shouldn’t feel like that. There should be no self-judgment as a result of deciding to not pursue an issue; or if pursuing it just doesn’t happen because other things have got in the way. We didn’t choose to be discriminated against; it is the world’s problem that we are; it isn’t our personal duty to challenge it. On the occasions we are able to pursue the issue, then that’s a benefit rather than an expectation; and we need to release ourselves from guilt over issues we’ve not challenged. (Easier said than done, but important for our wellbeing!)

    Knowing when to stop pursuing social change is an important part of social change!

COVID-19 Test and Trace – Open Letter and what you can do next!

Open letter sent to the NHS

This afternoon Reasonable Access sent an open letter to NHS England about the COVID-19 Test and Trace system asking questions about accessibility of various parts of the process to disabled people.

The full letter can be found as:

We would like to thank the over 120 signatories and countless others who have worked with us on this issue over the last week!

Our letter has also been written about in the Disability News Service. John Pring has done a lovely job of framing the relevant issues.

What next? Write to your MP

We need to keep up momentum. Keep pressure on the government and NHS to make accessibility for disabled people a priority!

We would like you to write to your Members of Parliament (MPs) to tell them about the issues you or others face, our open letter and ask them to contact the Secretary for Health and Social Care to put pressure on him to make disability access a priority.

You can find who your MP is and what their contact details using the Parliament MP finder.

We haven’t provided a template because personalised contact is much more effective. You can search online for guides on writing to your MP, or the charity Gingerbread have an HTML guide you can get ideas from.

Alternative materials have been published – very quietly

Just before we sent the letter someone told us about the Test and Trace Alternative Formats Information page which answers some of our concerns, but no where near all of them. We still have questions including:

  • Why was this information not launched at the same time as the 27th May 2020 Test and Trace “How It Works” page?
  • If there had to be a delay in launch, why was there no indication that this information was coming?
  • Should disabled people have to wait over two weeks for information compared to non-disabled people?
  • Why has it not been widely promoted by @DHSCgovuk or @NHSuk Twitter accounts?

We also have concerns that the alternative information is very generic and will not apply to the specific COVID-19 test kits used and different testing centres which are all provided by different organisations.

Feel free to mention this and ask your MP to ask Matt Hancock about these issues as well.

Reasonable Access visits the Staying Inn

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 will be uploaded with some other material such as the transcript soon (we’ll add the link here when it’s ready).

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

Reasonable Access have a Twitter Account @Reas_Access. Natalya tweeted from her account as she was speaking for herself rather Reasonable Access as an organisation.

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.

Useful information

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 she has 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.

Coronavirus Litigation

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):

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.

Survey – tracking issues affecting disabled people during the Coronavirus outbreak

Disabled people and our organisations are already noticing additional disadvantages during the Coronavirus (Covid-19) outbreak.

We have created a survey to find out what issues disabled people are facing, what barriers exist to making feedback/complaints and tracking the outcomes. We hope to use this data to identify problems and identify successful strategies that you can use.

The Equality Act 2010 is still in force and it is likely to be unlawful to overlook disabled people’s needs at this time. The more constructive feedback and complaints organisations get, the more likely it is that issues can be resolved.

Professional legal advice is hard to come by at the best of times, and right now legal practitioners are overwhelmed with demand. We will have to do most of this challenge work ourselves using a range of strategies including monitoring and tracking issues, using social media and raising awareness to ensure our needs are not forgotten.

19th Feb QOCS judgment

Anyone who wishes to support Esther Leighton at her QOCS (costs protection) hearing tomorrow where the judgment will be delivered needs to be at court 63 at the Royal Courts of Justice before 10am.

We recommend folk turn up by 9:30am at the Bellyard entrance.

For more information and context see our previous blogpost and links.

We will share the judgment and any other info as soon as we can.

At the High Court – Rapid Judgment in QOCS case!

Following Esther Leighton’s High Court hearing into QOCS (costs protections for people taking discrimination claims) on 28th January; we are delighted to be able to announce an extremely rapid delivery judgment delivery date of Wednesday 19th February at 10am.

Esther and some supporters will be at the Royal Courts of Justice in person and more supporters are always welcome. We know the hearing is at the Royal Courts of Justice, but not which court room it’ll be in until the day before. We are reasonably confident it will be in a wheelchair accessible court room, maybe even a working loop system!

We will announce the location here and on our social media as soon as we know the details.

Fingers crossed for a favourable judgment!

For more information about this case see:

  • Why Esther Leighton is challenging the government over costs protections issues in discrimination claims (QOCS)
  • 8 wheelchair users in a court room – makes the government think twice about their anti-costs protections arguments.
  • At the High Court – Costs in Discrimination Cases

    Last week after permission was granted a large number of disabled people and allies supported one of our co-founders Esther Leighton at the High Court hearing to challenge the government over lack of costs protection for people taking discrimination claims.

    Photograph of Esther and 9 of her supporters (6 using wheelchairs, one with a symbol cane and two wearing coloured lenses) outside the courtroom.
    Esther and 9 of her supporters, 6 who are wheelchair users outside the court room. (We had more people arrive later)

    Supporters travelled from as far as South Wales and North Yorkshire on a sunny weekday January morning. Being part of this large group turned the abled-gaze back upon itself as we proudly and quietly took up space in the court room and corridors and made our presence felt.

    One of the government’s proposed legal arguments was that Esther was only taking the claim because she is excessively litigious. After seeing over 8 different wheelchair users (at various times – hence not all pictured above), people with other visible impairments and non-disabled allies in court; this argument was never even raised. I think our point was made – through solidarity.

    While Esther is the named claimant in this case; this case matters to anyone who might need access to justice to challenge discrimination. On the subject of access to justice, despite requesting and being promised a loop system in advance; it was broken on the day. There were also other access failings which we will be raising with the court in due course.

    The outcome was as expected a ‘reserved judgment’ which means the judge will take some time to consider all the issues and draft his judgement carefully. We expect this to take between 3 and 6 months. We will post as soon as we can share the outcome.

    We would like to thank Esther’s excellent legal team Karon Monaghan QC from Matrix Chambers, Louise Whitfield and colleagues from Deighton Pierce Glynn, Inclusion London with Catherine Casserley from Cloisters Chambers and Chris Fry from Fry law as well as the Equality and Human Rights Commission (EHRC) who are funding this case.

    More information and writeups about the hearing and legalities can be found at:

    Steps on a disability civil rights journey – Haben Girma


    I recently read an excellent autobiography “Haben: The Deafblind woman who conquered Harvard Law” (available in various formats including audio read by Haben herself).

    I was struck by Haben Girma’s journey of experiencing and challenging an instance of ongoing discrimination in chapter 18 which felt directly relevant to Reasonable Access’s aim of supporting and empowering disabled people to assert and enforce disability access rights.

    If you plan to read the book, you may wish to delay reading further to avoid spoilers.
    Continue reading “Steps on a disability civil rights journey – Haben Girma”

    Challenging the government – cost rules in discrimination cases

    We are delighted to announce that one of our members, Esther Leighton has been given permission for a full Judicial Review hearing to challenge costs rules in discrimination cases.

    Esther is being represented by a star team of Louise Whitfield at Deighton Pierce Glyn solicitors and barrister Karon Monaghan of Matrix Chambers. This case has been funded by the EHRC as having strategic importance for application of the the Equality Act as the outcome will affect people with all 9 protected characteristics.

    Why this case matters

    If you experience discrimination on the grounds of a ‘Protected Characteristic‘ such as disability, sex or race, you are technically protected by the Equality Act 2010.

    In practice, usually only an individual can enforce the law – there isn’t a specialised body to complain to. Informal complaints often don’t work, and 24 years after disability discrimination law came into force, poor access and discrimination is still widespread. Taking a legal case became harder after 2013 (when the government changed the law) because there is a high risk you can be made to pay the other side’s costs (sometimes even if you technically win your discrimination claim).

    As enforcing the Equality Act is so difficult and risky, organisations know that the risk of being sued for even blatant discrimination and poor access is very low. Society loses out, because accessibility and treating people fairly regardless of their protected characteristics are not seen as a priority.

    As Esther herself said in court papers:

    “These cases are important because they are about my daily experience. Getting into a cafe or a shop may not sound significant to a lot of people, but it is discrimination like this that excludes me from experiences that non-disabled people have every day without thinking about it.”

    The court hearing is on 28th January 2020 at the Royal Courts of Justice on the Strand in London. Several of us will be there to support Esther and her team – we will provide updates when we have them.

    We have adapted Judge Edis’s orders to make them accessible. A copy of the original orders in PDF can be found linked from Deighton Pierce Glyn’s press release