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

    Intro

    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

    Equality Act Enforcement Inquiry

     

    The Women and Equalities Committee have produced a report into “Enforcing the Equality Act: the law and the role of the EHRC”.

    Disability evidence

    Two Reasonable Access trustees, Doug Paulley and Esther Leighton, gave oral evidence to the Committee. Both are cited regularly throughout the report.

    (A more accessible version made utilising the disability exemptions of the Copyright Act 2014) 

    Our view

    Overall, we think this is a very positive report.

    We welcome the robust conclusions that individualised enforcement of the Equality Act places an intolerable burden on individuals, that this fundamentally undermines compliance with the Act and that this must change.

    We agree that the Equality and Human Rights Commission (EHRC) should make more use of its unique powers, and that other Regulatory, Investigative and Ombudsman bodies should be more proactive in monitoring and compelling compliance with the Act.

    We also welcome the recommended change to legal aid, and the introduction of Qualified One-Way Costs Shifting – a critical issue on which Reasonable Access trustees actively campaign.

    We are delighted that the Committee firmly rejected the Ministry of Justice and Government Equality Office responses, which had accepted current model of individual enforcement as unavoidable and “the nature of adversarial systems”. It is also great to expose the disparity between the financial and other remedies available, and the financial costs of enforcement.

    We would disagree that the PSED and gender-pay gap reporting requirements are the only proactive duties in the Equality Act.  Service providers are under an anticipatory duty to make reasonable adjustments for disabled people. (Employers should also be subject to a similar obligation.) Organisations are required to take reasonable actions to ensure accessibility before a disabled person attempts to access their services. It is a shame the Committee did not make recommendations that the EHRC enforce Action or Improvement plans as part of driving gradual systemic change.

    While undertaking this enquiry, the committee was separately investigating the use of Non-Disclosure Agreements (NDAs) in settlements. The cross-over is apposite. The Committee recognised the negative impacts of NDAs and the risk of adverse costs on individuals complaining about discrimination. The report quotes Reasonable Access trustee Esther, who recommended unambiguous legal guidance stating that refusing an NDA should not be considered an unreasonable failure to settle. We are delighted that the committee has adopted this recommendation.

    We were astonished to discover the EHRC’s range of powers, and how poorly and infrequently these have been used. The frequency and severity of reports – e.g. 50,000 yearly instances of one (easily recordable) type of discrimination for one protected characteristic in one geographical area – makes clear that the EHRC needs to be far more assertive.

    Several regulatory, investigatory and ombudsman bodies made clear to the Committee that they had not heard of the Public Sector Equality Duty. We discovered that regulators, including the Financial Ombudsman Service, can make binding requirements forcing the organisations it regulates to make changes to policies and practices. The committee was clear that these bodies should not just rely on reports from individuals, but should proactively monitor, and compel, compliance with the Equality Act.

    We were sad to note that the evidence in other witness submissions made clear that a range of protected characteristics experience similar burdens of enforcement, with which we are so familiar. While some aspects are unique to disability, such as “proof of legal disability”, we noted that organisations find other ways to exploit intrusive personal information when defending legal claims made on other protected characteristics.

    What’s next?

    We are reticent to be hopeful for meaningful change, given the Government’s insulting reply to the (excellent) 2016 Lords committee report on the Equality Act 2010 and Disability.

    We expect the Government’s response in three months or so; though it may be delayed by the summer recess and by the focus on Brexit.

    In an ideal world, the excellent recommendations in this report would make Reasonable Access redundant; however, we expect to continue in our work to support disabled people to challenge the discrimination they experience.

    Background information

    The Women and Equalities Select Committee report:

    Absence of Disability from the Summary

    We should note that the committee did not intend to shun ‘disability’ as a protected characteristic in the first sentence. They have reassured us that this was to reflect that while in other protected characteristics the Equality Act mandates equal treatment (formative equality), it mandates different treatment in disability as this is required to achieve something approaching equality of outcome (substantive or transformative equality). Despite this apparent “omission”, we feel that the overall report is an accurate representation of disability-related issues.

    Reasonable Access

    Reasonable Access is a small organisation led by disabled people. We want to empower other disabled people in the UK to assert and enforce their right to access through peer assistance and information provision.

    In practice, this covers a range of activities including:

    • Asking about disability access.
    • Challenging disability access problems.
    • Pushing back against access refusals.
    • Making informal complaints about access failings.
    • Dealing with poor responses to access problems and complaints.
    • Escalating complaints to more formal and serious modes.
    • Taking legal cases with and without lawyer representation and support.

    Access is good for business and people – Esther, Konditor and Disability Justice Project

    We at Reasonable Access are delighted to see one of our members Esther Leighton achieving such a positive and constructive outcome to raising an accessibility concern with a small business Konditor Cakes in London. Konditor has made an honest and public apology, fixed the access issues, and are now educating other business owners about how easy access can be as well as fundraising for the Disability Justice Project for the next six months.

    We would like to see more businesses react so constructively and positively when disabled people point access barriers out to them – it’s cheaper, happier and more useful than any other response.

    More information is shared on #SpreadJoyThroughCake

    Hello world!

    Hello and welcome to Reasonable Access.

    We are a small group of disabled people setting up an organisation to support disabled people to assert and enforce their access rights. 

    It is early days yet but we are working on plans like seeking funding, getting an accessibly designed website, registering as a Charitable Incorporated Organisation and opening a bank account! We are mostly working using free resources but already have pledges of micro and not so micro donations from lovely supporters.