By John Pring Disability News Service May 11th 2017
Disabled people are being denied access to justice because of judges’ failure to make the reasonable adjustments that would make the court process accessible to them, according to a disabled human rights barrister.
John Horan said the legal profession was failing to address the discrimination faced by disabled people who rely on family and commercial courts, employment and benefits tribunals, and the criminal justice system.
One of the reasons for this failure is the pressure exerted on the legal system by government cuts to the courts and tribunals system budget, he has told Disability News Service (DNS).
He says the UN Convention on the Rights of Persons with Disabilities (UNCRPD) provides a clear duty – under article 13, on access to justice – for UK courts to provide the necessary “accommodations” to ensure that every disabled person can play an “effective role” in all legal proceedings.
But he says judges (and magistrates) are ignoring detailed guidance laid out in the Equal Treatment Bench Book (ETBB), which describes how they should treat disabled people.
In fact, he says, it is almost unheard of for judges to refer to the ETTB and provide reasonable adjustments for disabled people.
His views appear to be shared by the Equality and Human Rights Commission, and the other equality and human rights bodies that make up the independent mechanism charged with overseeing the UN disability convention’s implementation in the UK.
They told the UN’s committee on the rights of person with disabilities (CRPD) earlier this year that there “does not appear to be compulsory training for members of the judiciary on the UNCRPD or forms of reasonable accommodation to ensure equal access to justice”.
The committee seems to have been listening, as it has asked the UK – in the list of issues released ahead of a public examination in August of its progress in implementing the convention – to provide information on “the training of the judiciary and the provision of reasonable accommodation to persons with disabilities for accessing the justice system”.
Horan said: “If you deny proper access to justice to a disabled person, you are looking on them as a second-class citizen.
“Discrimination has not been taken seriously enough.”
He called for training on providing reasonable adjustments to disabled people for every judge, magistrate and barrister in the country.
Horan spoke out after a disabled person he was representing lost a long-running case in the court of appeal.
His client, Jonathan Rackham, had originally lost an employment tribunal case for unfair dismissal and disability discrimination in December 2015 against an agency that provided staff to an NHS trust, for which he had worked as a support worker.
Horan took on the case and appealed against the ruling, arguing that his client had not received a fair hearing because although the tribunal made some adjustments for Rackham, who has learning difficulties, Asperger’s syndrome and anxiety, it failed to make the necessary reasonable adjustments that would have allowed him a fair hearing.
The tribunal had refused to pay for a report from an expert in Asperger’s syndrome to determine the adjustments that needed to be made.
But the appeal found last November that the tribunal had met its legal duties to make reasonable adjustments, and the court of appeal agreed.
Horan said the court of appeal decision conflicts with the ruling in another case he was been closely involved in, this time in Northern Ireland.
That case, involving another man with Asperger’s syndrome, Patrick Galo, was an appeal against the decision of an industrial tribunal to dismiss claims of race and disability discrimination, victimisation and unfair dismissal against his former employer, Bombardier Aerospace UK.
The tribunal had failed to make reasonable adjustments for Galo, and the Northern Ireland Court of Appeal concluded, in finding in his favour, that the case “highlights perhaps the need for there to be better training of both judiciary and the legal profession in the needs of the disabled”.
The court also found it a “matter of great concern that no reference appears to have been made to the Equal Treatment Bench Book”, and said it had “formed the clear impression that the Equal Treatment Bench Book does not appear to be part of the culture of these hearings”.
It said this was “a circumstance which must fundamentally change”.
It allowed Galo’s appeal and referred his case back for a fresh tribunal hearing.
The UK’s independent mechanism drew attention to the Galo case in its submission to the CRPD.
Both the Galo and Rackham cases were only able to reach the appeal courts because lawyers, including Horan, agreed to work pro bono.
Horan said the judgement in the Galo case – for which he drafted the legal arguments presented to the court on behalf of Galo – “goes a long way to recognising that judges and lawyers are the ones who are at fault”.
But Horan said he was frustrated that the court of appeal in England and Wales had in practice ruled last month that the Galo ruling was wrong.
He said he has had other cases where judges have failed to make the necessary reasonable adjustments for disabled people.
In one case, the court of appeal refused an appeal from an employment tribunal, finding that it was up to the tribunal judge whether to commission an expert’s report on reasonable adjustments.
The tribunal judge had said there was no need to seek an expert’s report for Horan’s client, a lawyer in the middle of a gruelling regime of radiotherapy and chemotherapy for breast cancer, and no need to make any adjustments for her at all.
A spokesman for the judiciary admitted, in a statement to DNS, that reading the “full content” of the ETBB – and the other bench books – was “not mandatory” for judges.
But he said that judges were “expected to be aware of the protected characteristics in the ETBB and to seek and be able to access more detailed reference advice” when needed, through “multiple sources such as case studies and e-learning”.
He said the Judicial College was “satisfied awareness of this resource is high” among judges, and that because the ETBB was a public document “court users can ask the judge take account of the ETBB if they wish”.
He added: “The nature of the ETBB is to provide guidance which can be accessed by judiciary on a needs basis and as such the Judicial College has not sought to train judges on its contents.
“Any practical or other special needs can be flagged to the court as part of the case management process where it is appropriate.
“This will give the judge opportunity to identify and authorise any special measures, the use of intermediaries, interpreters, video links or whatever may be relevant.”
He said that many of the 400 or so seminars delivered by the Judicial College each year remind judges about the information contained in the ETBB, which is currently being updated.
The Judicial College has recently produced online “e-learning” material aimed at helping all courts and tribunal judicial office holders faced with a hearing involving an individual with communication issues, which includes “information and tips for effective preparation as well as effective communication”.
The judiciary spokesman said the e-learning “is aimed to help ensure that cases are dealt with fairly and justly and without avoidable problems with communication”, and he said that both the e-learning and the ETBB “have been advertised and drawn to the attention of the judiciary in a variety of ways”.
He also said that the Judicial College’s strategy states that “all training should include an element of the social context within which judging occurs.
“This will include all issues of equal treatment and diversity and this approach means that case studies used in jurisdictional training can have social context issues woven into them.
“Overall the Judicial College is of the view that there is sufficient training in this area but all training needs are continually evaluated and reviewed.”