There are a number of different claims which a claimant/complainant may seek to bring if they attempt to access services and are denied the opportunity to do so as a result of their disability.
Before bringing a claim of discrimination on the grounds of disability, a claimant must show that they have a disability, which satisfies the legal test set out within Section 6 Equality Act 2010 (EQA).
Is cerebral palsy a disability?
The criteria imposed by Section 6 EQA 2010 is that a person is considered to have a disability for the purpose of bringing a discrimination claim if they have:
- A physical or mental impairment; and
- The impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
For an impairment to be substantial, it must be “more than minor or trivial”, and to be long term, the impairment must have lasted, or be likely to last, generally, in excess of 12 months.
If these criteria are met, a person is likely to be protected from discrimination on the basis of their condition under the Equality Act 2010, however, this will often need to be considered on a case-by-case basis.
Cerebral palsy is often diagnosed from an early age. It is extremely likely that it will be considered ‘long-term’.
The NHS website states “Cerebral palsy is the name for a group of lifelong conditions that affect movement and co-ordination. It's caused by a problem with the brain that develops before, during or soon after birth.”
The symptoms that an individual may experience will vary and the effect on their ability to carry out normal day-to-day activities will need to be considered on a case by case basis.
The symptoms of cerebral palsy can impact a persons mobility and/or communication, amongst other things.
Claims for discrimination on the grounds of disability
Broadly, the claims which can be brought under the Equality Act 2010, for discrimination on the grounds of disability, are claims for:
- Direct discrimination
- Indirect discrimination
- Discrimination arising from a disability
- Failure to make reasonable adjustments
All service providers have a statutory duty to make reasonable adjustments when a provision, criteria or practice/physical feature of their premises puts a disabled person at a substantial disadvantage in comparison with others who are not disabled.
The duty is to take such steps as it is reasonable to have to take to avoid the individual being subjected to the disadvantage.
A reasonable adjustment may include:
- Ensuring that premises are accessible by providing ramps, level access, or lifts.
- Providing information in accessible formats.
Whether an adjustment is ‘reasonable’ is something to be considered on a case by case basis. If your business is not able to provide the adjustment requested by a disabled person, you should consider whether you can provide any alternatives, to alleviate the disadvantage to the service user.
Discrimination arising from a disability
A claim for discrimination arising from a disability can be brought when an individual is treated less favourably because of something arising out of their disability. This could include, for example, instances where customers have been denied a service because they cannot access it in the standard way that a person without a disability would.
The explanatory notes to Section 15 EQA 2010 (the section relating to disability arising from a disability) provides the following as a potential example, in relation to an individual with cerebral palsy:
“The licensee of a pub refuses to serve a person who has cerebral palsy because she believes that he is drunk as he has slurred speech. However, the slurred speech is a consequence of his impairment. If the licensee is able to show that she did not know, and could not reasonably have been expected to know, that the customer was disabled, she has not subjected him to discrimination arising from his disability.
However, in the example above, if a reasonable person would have known that the behaviour was due to a disability, the licensee would have subjected the customer to discrimination arising from his disability, unless she could show that ejecting him was a proportionate means of achieving a legitimate aim.”
A complaint or claim of discriminatory harassment may be brought by service user/client, if, as a result of their protected characteristic, they are subjected to unwanted conduct, (whether this be verbal or physical), which has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
An individual may have a claim for harassment if, for example, an employee of a business makes a derogatory comment pertaining to their disability. For instance, in the example provided under the heading ‘discrimination arising from a disability’, if a comment was made regarding the slurred speech of the service user, this could also constitute harassment, under the Equality Act 2010.
Read more about harassment claims and the preventative actin that you can take to avoid such a claim here.
There are defences to claims for failure to make reasonable adjustments and claims of discrimination arising from a disability. Click the links below to read more about this:
- Defending claims of failing to make reasonable adjustments
- Defending claims of discrimination arising from a disability
It is advisable that businesses provide training to their employees on their obligations under the Equality Act 2010 and their duties to recognise the needs of service users and provide adjustments, where appropriate.