DWP - No Right to Legal Advice?

Two DWP (Department for Work and Pensions) Enforcement Officers, recently attended my shared apartment building without invitation.  

They were caught, harassing, intimidating and threatening one of my older neighbours, outside their front door.  My neighbour had begun to cry. 

I suspect they had not know that a Solicitor lived across the hall, and that Solicitor, would be the notorious Daniel Donaldson, someone who just so happens to campaign regularly for for Equality and Human Rights.

My Concerns

The first thing that I objected to was the conversation taking place at all.  The Officers knew (or ought to have known) that they should not be discussing an individual's private business for everyone in sundry to hear.  However, they did so anyway.

Then of course, was the topic of conversation.  I also objected to this.  It was alleged that the local Procurator Fiscal had instructed the Officers to attend, in order to obtain my neighbour's consent to open a "sealed evidential envelope" containing "an interview tape and transcript".

The Officers went on, as part of their harassment and intimidation, to say that they would "do it anyway" but just just had to let my neighbour know.

It was at this point, I intervened.  Not only was the conversation audible from within my own property but I noticed that my neighbour was distressed.  It was clear that me neighbour didn't follow or understand what was being said.

The Exchange of Credentials

I asked to see the Officers credentials, and of course, the Officer wanted to see mine.  I fully suspect, that when I handed over my business card, and was about to take my Law Society of Scotland certificate from its frame, that it suddenly dawned on them both what a horrible mistake they had made.

I will be careful here, and point out that I at no point held myself out as my neighbour's Solicitor or her representative.  I was acting, in the public interest, both protect my neighbours welfare and in order to achieve a peaceful resolution to a very tense and difficult situation inside my apartment building.

Independent Legal Advice - Does this Ring a Bell?

As our conversation progressed, I reminded the Officers that my neighbour was entitled to seek independent legal advice.  I also reminded them of certain procedural aspects, regarding a fair hearing.

The Officers conceded that they had attended without invitation and that they should have written to my neighbour, to enable her to take legal advice.

It was this important human right, that the Officers had omitted, when they began their harassment.

The situation was defused and the Officers left.

I wonder what would have been the outcome had I not been there.

No Harassment Please

It is important to remember that the Crown does not have the right to harass or intimidate people.

It is also important to remember that everyone is entitled to take independent legal advice.  This fact should beyond doubt now, lest we have to revisit the CADDER v HMA debacle again.  If you every find yourself with unwanted DWP Officers harassing you, or someone you care about, please feel free to remind them of that too.

In so far as Human Rights are concerned, the Crown has bound itself to respect the integrity of the person (which they did not do in this case).  The Crown has also bound itself regarding respect for the private and peaceful enjoyment of one's property, family life and correspondence (again, something overlooked in this case).

Regarding confidentiality, European and UK Data Protection law applies.  The discussion of my neighbour's private business, in a very public manner, was a clear breach of the Data Protection regime.  In addition, the "loss of evidence", or whatever the DWP Officers sought to deal with, is also a breach, and a reportable breach, with potential criminal sanctions too.  

I do wonder whether the loss of evidence was reported to the UK Information Commissioner. It would be unfortunate if it was not, as that in itself, may be a criminal offence.  

It would be a rather red faced moment, if some DWP Officers found themselves being interviewed, outside their front door, of a Thursday morning, being asked why they lost evidence and didn't report it as they should have.  Wouldn't you agree?

Scottish Labour - Party of [IN]equality

The Labour Party operates a system of positive discrimination when deciding who to select as a prospective parliamentary candidate (PPC).  This system is designed to increase the number of women PPCs being selected by local parties and then elected to seats in Holyrood or at Westminster. 

However, the system is not without criticism and is open to abuse, as recent Holyrood and Westminster selections have demonstrated in Scotland.  Additionally, no parallel system of positive discrimination exists for PPCs who have a disability or come from a particular minority ethnic background.  

This article explores the institutional failures of the Labour Party to address the inequality experienced by PPCs and highlights the abuses that can take place, when a system of positive discrimination is not properly regulated or controlled.  

Recruitment of PPCs within the Labour Party

All PPCs are required to apply to the Party centrally first.  If the application meets the required criteria, the applicant is invited for interview.  Assuming there is no legal barrier, the majority of applicants who have met the criteria, succeeded at interview and attended a compulsory training day, receive the necessary accreditation to seek selection at a local level.  

Disability Discrimination 

Although the above system bears resemblance to any recruitment exercise for employment, all the classic hallmarks disability discrimination begin to emerge.  Throughout the process, the Party neglects to offer reasonable adjustments to facilitate the participation of applicants with a disability.  

This is an important legal requirement that applies to any job application.  Disabled people face many barriers to participation in the workforce, and likewise, disabled PPCs also face barriers to becoming PPCs.     

Even after interview, the discrimination against disabled applicants continues.  At the training events, no question was asked of applicants about reasonable adjustments.  In the author's experience, the problem of disability discrimination was made worse when the Party staff compounded the issue by setting "ground rules" which also discriminated.  

One of the ground rules for the training, to turn off all electronic devices, directly discriminated against candidates who required the use of assisted technology to participate.  This meant that disabled candidates, who required the use of technology, were forced not only to disclose their disability but also to raise their concerns in front of other non disabled candidates.  

Positive Discrimination - Women Only

The Party uses positive discrimination measurers to exclusively promote the selection of PPCs who are women.  This system is referred to as an all women shortlist.  In other cases, the Party twins two local constituencies with a guarantee that one constituency must select a female candidate and the other constituency a male or female candidate.  

This system of positive discrimination is meant to increase the number of female candidates being elected to Parliament.  However, no other political party has adopted this approach to selecting candidates and the system is open to abuse, when not carefully monitored or applied consistently.   

The abuse of the positive discrimination system is discussed below.  

Edinburgh West - Identified as a Key Seat but did not use Positive Discrimination

When the Party moved to select Cllr Cameron Day for the Edinburgh West UK parliamentary constituency, the selection committee was composed of individuals - including fellow Councillors - who had already declared their support for this candidate.  

Additionally, even though the Party had identified this as a Key seat, the Party chose not to deploy either an all women short list or a twinning arrangement to select a candidate.  

The selection timetable was also rushed through and objections concerning the arrangements were ignored.  The Party refused to accept or acknowledge any complaints.

It is important to remember that discrimination can be both direct and indirect.  The discrimination in this case was indirect, because while it did not directly exclude female PPCs from seeking selection, the selection process as a whole placed women at a particular disadvantage.     

It is common knowledge that the majority of carers, part time workers and stay at home parents are women.  The arrangements in this selection, had been set in such a way - over the school holidays - that would make it difficult, if at all possible, to successfully apply for selection, contact members, attend hustings and finally a selection meeting.  

In fact, the chair of the selection committee and one of the key proponents of the rushed timetable, was Cllr. Lesley Hinds, whom had made no secret of her support for candidature of Cllr. Day.

In this case, the Party specifically chose not to deploy an all women short list or a twinning arrangement.  If the Party wished to promote equality for women and enable greater participation, and increase the number of female MPs returned to Westminster, why did it not do so here?

Dunfermline by-election - an Open Selection Turns into an All Women Shortlist

The Party announced the selection of candidates for the Dunfermline by-election.  At this stage, the Party invited applications from all PPCs whom had been approved.  This was to be an open selection.  

However, during the course of this selection, the Party switched from an open selection to a closed, all women short list selection procedure.  This meant that the two male candidates were purposely removed from the selection procedure.  

The Party claimed, that they wished to emphasise the issue of "domestic abuse" and hence chose to deploy an all women short list.  

The Party here not only discriminated against the two male candidates - by bumping them from the selection process - but also belittled the experience of male victims of domestic abuse.  

The use of domestic abuse, as a reason for creating an all women shortlist, is unlawful.  

This constituted a direct act of discrimination on grounds of sex, sexual orientation, disability, gender recognition, race, religion and age.  Whether on their own or in concert, people with each of these legally protected characteristics also experience abuse, which is why an all women short list cannot be justified.

Edinburgh Northern and Leith - One Candidate for the All Women Shortlist

The Party received an announcement that the male MSP for Edinburgh Northern and Leith was to retire.  Accordingly, the Party began the search for a new candidate.  Following consultation with the local Party, it was decided to create an all women short list.  However, what was the Party's motivation for doing so?  

As the selection process begins, it emerged, at close of nominations, that there was only one candidate.  

That candidate, a leading proponent of the all women short list system, was Cllr. Lesley Hinds.  

Cllr Hinds and Cllr Day (the PPC for Edinburgh West) had agreed to mutually support one another, to ensure their respective nominations.  

As you recall from above, it was Cllr Hinds who lead the selection process for Edinburgh West and now, having ensured Cllr Day's selection was free to pursue Edinburgh Northern and Leith.  

In order to cement this relationship, Cllr Day began an active lobby on Cllr Hinds behalf.  For example, at a Labour fundraising event, he introduced Cllr Hinds to the assembled gathering from the floor as, "the next Labour MSP for Northern and Leith".  

This constituted a personal canvass on behalf of Cllr. Hinds.  This was not only against the Party rules, but no selection process had begun and no potential candidate was meant to solicit support, in advance of an announced selection process.   

In this case, the decision to use an all women shortlist was not about promoting women in politics.  It was not about addressing inequality either.  The system was abused to select one candidate in particular, who just happened to be a woman.  The lack of opposition at the selection meeting, speaks for itself.  

Edinburgh Local Government Selection

Prior to the European Election, the Party again decided to discriminate unlawfully.  

In this case, the local Edinburgh membership, was informed that only women members would be invited to apply to the local government list - this is an internal list from which the Party selects local government candidates.

The Party had hoped, that they would be able to nominate an all women shortlist in the event of a by-election.  

When this was pointed out as unlawful discrimination, the Party said that they would open the list to everyone at a later stage.  However, there was no reason why the list could no be opened up to everyone immediately.

The correct approach, if the Party wished to increase the prevalence of women on the list, would have been to welcome, encourage and support more women to come forward.      

Edinburgh Western Scottish Parliament Selection - Discrimination Against Minority Ethnic Candidates

In Labour's selection for Edinburgh Western, two male candidates from a minority ethnic background, one other male candidate and one white female candidate all sought selection for the twinned constituencies of Edinburgh Western and Edinburgh Pentlands.

It is important to remember that there was no suggestion of racism in this particular selection or that the Party behaved in a racist manner.  However, the problem of indirect discrimination was not addressed.  

The female candidate would automatically be selected because the two constituencies were twinned. This meant that the three male PPCs had to compete for the remaining constituency.  In this case, the successful male candidate happened to be a Party insider as an aide to the leader of Labour in Scotland.

The Labour Party's Point of View

In recent commentary, the Party has described it's selection processes as fair and transparent. Additionally, the Party also considers the use of both all women shortlists and the twinning procedure as a progressive measure.

The author agrees that it is a progressive to seek increased representation and participation from women in politics.  The difficulty here arises where a hierarchy of competing priorities is created, to the exclusion of others.   

The Party does not support candidates from minority ethnic backgrounds, candidates who are disabled or posses any other protected characteristic, unless they are female.  This is where the problems with both direct and indirect discrimination arise.   

The Party also advocates both a "fair and transparent" selection system, placing all candidates on an equal footing, under one set of rules.  However, the rules are, more often than not, ignored.  The selection process is neither fair nor transparent, it is open to abuse, and it discriminates both directly and indirectly.  

Selecting the Few, not the Many

In the Edinburgh Western example, the successful male candidate worked as a party insider.  The two minority ethnic candidates stood no realistic chance of being selected for this reason.  Additionally, because a twinned arrangement was put in place, the only female candidate was automatically selected.  

No positive action measures are deployed to support minority ethnic candidates.

In years gone by, Party staff, including the staff of MSPs or the Party leader, would have been barred from taking part in any selection process.  The reason for this rule, was simple - party staffers are already inside the system - they are already known, have access to the mass membership and automatically carry endorsement.  Local membership at party meetings are not going to move against that endorsement, nor would the Party permit an insider to fail.  It would be too embarrassing.

If this selection were to be considered fair, the Party should have taken a wider view, in order to eliminate any direct or indirect discrimination.  This was not done.   

Summary 

Contrary, to the Party's stated position of equality, fairness and transparency, the Party does discriminate and does not operate fair procedures.

The Party does not fulfil its legal obligations to eliminate both direct an indirect discrimination.   

The non-discrimination provisions of the Equality Act are abused by the Party and decisions are made not to emancipate female PPCs but to promote certain candidates who just happen to be women.  

There is no support for disabled or minority ethnic candidates who also face significant barriers to participation, and candidates who are either disabled or represent a minority ethnic community are routinely discriminated against.  

The Party machine lacks sufficient understanding of it's legal obligations - and refuses offers of help - to improve its practices.  

While it is a legitimate aim to increase the number of female politicians in both Holyrood and Westminster, the single minded, positive discrimination approaches deployed by Labour are open to abuse.  

If the current status quo is not altered and core behaviour changed, the Public will once again decline to return a Labour Government come 2016.  

Statement Concerning the Scottish Courts Service

I have worked exceptionally hard over the last three years or so to promote equality within the Scottish Courts Service (SCS) as an unpaid volunteer member of their Equalities Advisory Group (EAG).

During this time, I took on many challenging subjects and in particular took a lot of time, outside of attending our regular meetings, to take forward additional work.  

I enjoyed this work and also looked forward to each of the meetings to which I contributed fully.  

Regretfully, I was told by Chair on Monday (17 February 2014) afternoon, that I was no longer welcome to be a member of the EAG.  

I am disappointed but to a certain extent, not surprised.    

It was not until I raised concerns recently about ongoing disability discrimination and transphobia, which were backed by evidence, that both Chair and the SCS management decided that I was no longer welcome.  

I tried repeatedly to raise these issues but felt that I was ignored.  

In particular, the SCS authorised the refurbishment of a court room in Dundee with scant regard to accessibility and more regard for financial expediency.  

Needless to say, I objected to this as it is not the manner in which our public services are meant to behave.  

It has subsequently been pointed out to me that as an EAG member I have no right to raise a grievance within the SCS and that the dignity at work policy does not apply to members of the EAG amongst other matters.  

In particular, it has also emerged that Chair has the right to remove members of the EAG.  

Raising a complain under the Equality Act is a protected act.  This means that a person raising a complain about disability discrimination and transphobia as I have done should not suffer any detriment for doing so.  

As a basic human right, everyone is entitled to have their dignity respected.  

Additionally, public bodies, such as the SCS, are required to apply the European Convention on Human Rights to all aspects of their work.   

Volunteer Development Scotland, together with the Scottish TUC, agreed a code of practice for organisations that work with Volunteers.  

The SCS does not subscribe to this code.  Amongst other things, the code states that:- 

Effective structures should be put in place to support and develop volunteers and the activities they undertake, and these should be fully considered and costed when services are planned and development.

 Volunteers and paid staff should be provided with opportunities to contribute to the development of volunteering policies and procedures.

 Volunteers, like paid staff, should be able to carry out their duties in safe, secure and healthy environments that are free from harassment, intimidation, bullying, violence and discrimination.

 All paid workers and volunteers should have access to appropriate training and development. 

There should be recognised machinery for the resolution of any problems between organisations and volunteers or between paid staff and volunteers. 

I was not told in advance that Chair intended to remove me from the EAG nor was I told about a secret letter that had been prepared and delivered to Chair by the SCS management. 

I was not given an opportunity to see this letter or address any of its contents. 

I was mislead as to the nature of this meeting. 

I was also accused of being "aggressive and threatening".  

My dignity was violated yesterday and I left our meeting in a distressed state.

At no stage have I ever been aggressive or threatening to anyone.  

I raised a complaint concerning the SCSs failure to address accessibility and transphobia.  I also stated that there was a problem with institutional discrimination.

I was victimised for doing so.

I was bullied by them.  

If the SCS had in place appropriate structures and machinery for addressing my concerns, I am sure that matters would not have gone this far.  Unfortunately, they do not.  

I am disappointed at the manner in which both Chair and the SCS have handled my complaints.  

I am also disappointed that it appears acceptable to unilaterally remove a member of the EAG, to write a secret letter about them and not provide any opportunity to answer its contents and then accuse someone like myself of being aggressive and threatening. 

I am now considering my position.  

A complaint has been made to the SCS about mondays meeting and the failure to address my concerns. 

We will wait and see what happens.  

I would welcome your support right now as it is a struggle to keep up the good fight on my own. 

This is even more difficult and distressing for me because I have multiple disabilities and I cannot come to terms with how this public body has behaved.

Yours for equality,

Daniel

Institutional Discrimination - Call it Out

Image from Pinkfamilies.com

In February 1999, Sir William Macpherson published his report into the Metropolitan Police ("the Met") and their handling of the murder investigation of the late Stephen Lawrence.

At that time, one of the controversial assertions made in his report, was that the Met was "institutionally racist".  This is the definition used by Sir Macpherson:

"The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people."

  

(Home Office, The Stephen Lawrence Inquiry: Report of an Inquiry by Sir William Macpherson of Cluny, February 1999, para 6.34)

While the Macpherson Report had "race" as its focus, the definition provided can easily be expanded to encompass the other protected characteristics within the Equality Act 2010.

"The collective failure of an organisation to provide an appropriate and professional service to people because they share a Protected Characteristic, whether directly or indirectly. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and stereotyping which disadvantage people because they share a Protected Characteristic, whether directly or indirectly as the case may be."
Or words to that effect, replacing reference to "race" with "disability" or "age" and so on.  

The wide ranging application of Macpherson's definition has already been realised by a number of public authorities.  The definition has been used to inform their training in and understanding of equalities within their own policy framework.

However, nearly fifteen years on, the same cannot be said of every public service.    

In this article, I will examine the term institutional discrimination with reference to various Protected Characteristics.  I will also demonstrate where more work needs to be done in order to engender that cultural change, in "processes, attitudes and behaviour..." as identified by Sir Macpherson when addressing institutional racism within the Met. 

Example 1 - The Bedroom Tax

Readers may not be fully familiar with the full application of the policy described by the current UK Government as "the spare room subsidy" or more popularly coined as "the bedroom tax".

This policy cut the level of housing benefit paid to single people, couples or families with adult children who lived in public sector housing with more bedrooms that their assessed need.  In the case of a couple (without children) one double bedroom was deemed suitable.  This was also the case for single people or single parents who may only have their children stay with them for part of a week.

Disabled people were also covered by the new policy decision.  However, what was not taken on board by the UK Government was the lack of suitably sized and suitably located accommodation for disabled people, single people without children or couples living alone.  There was also a lack of appreciation to what purpose the extra bedroom was put.

For example, in the case of a disabled person who is a Kidney patient - and awaiting a transplant - the extra bedroom may be used to store essential medical equipment, including a hospital bed (or re-laxer chair), sink, dialyses machine, filters and other associated paraphernalia required by that patient for their day to day living.  It is also likely that that machine, together with its filter technology will have been permanently plumbed into the cold and waste water mains. 

The extra bedroom, in this case, is being used for a specific purpose.  It is also being used as an alternative to the patient taking longer term stays in hospital.  The patient's partner is usually the full time carer of the patient and will have received specialist training to assist their partner through their dialyses.  This approach is saving the NHS and also the Taxpayer money.

In the case of a single parent, estranged from their former spouse, but retaining full parental responsibilities and rights, the extra bedroom may be necessary to accommodate the children when they stay with that parent.   

In this scenario, the blind classification system adopted by the UK Government, a kidney patient, despite saving the Taxpayer money, will no longer be entitled to financial support to fund the spare room.  The single parent, who relies on the spare room for their children, will no longer be entitled to financial support for that room.  In both cases, the room will be classified as a bedroom, an extra room, surplus their assessed requirements.

Example 2 - Non Binary Gender

It is a common assumption that there are only two categories of gender - male and female.

To a certain extent, this assumption follows the sexing of a child at birth and the continued assumption that that sex will lead to a particular gender identity.

However, as a child grows and becomes more conscious of their own identity, they may find both the cultural gendering and their prescribed biological sexing difficult to reconcile.  The conflict may present at any age and in no particular prescribed manner.

Some people may grow up biologically female and yet identify more closely with the male gender.  Other people may grow up biologically male and identify themselves as female.  In both cases, some people may not identify with either the male or female gender, nor accept their prescribed sex given at birth.

The legal system has evolved - following a number of Human Rights challenges - to recognise that someone may wish to have their gender reassigned.  The law also protects someone, at whatever stage in their gender reassignment process, from discrimination.

Taking this into account, toilet and changing room facilities remain prescribed in many cases as either male or female.  Additionally, passports and birth certificates, both require a gender identity to be provided as either male or female.  It is noted, that in some cases, this culture has begun to change.  Nepal was one of the first countries to recognise another gender "X" in formal documents and other some venues have at least considered introducing some gender neutral toilets.

However, despite greater understanding and legal changes, the culture remains predominately discriminatory against non-binary gender people.

Example 3 - The Court System

The legal system is full of tradition and established models of work.  This culture extends to features, facilities and institutions through which the legal system operates.    

Court Rooms traditionally see the Judge sitting on a stepped, higher level, than the well of the Court or the Public Gallery.  Witnesses are usually required to enter a "Box", swear an Oath before God and stand to give evidence.

The majority of buildings are not fully accessible through the main entrance, host Court rooms in inaccessible locations and predominately contain features to accommodate the utility of the majority - namely able bodied, non disabled people.

To a certain extent, one has to acknowledge legacy issues, particularly concerning buildings and facilities built to a standard not accepted today.  However, this explanation has to be taken in context of legislative, jurisprudential and societal change.

The European Convention on Human Rights ("the Convention") was written with an Article 6 absolute right to a fair hearing.  The Disability Discrimination Act was passed by Parliament in 1995 followed by the Equality Act 2010 (disability and religion / belief are protected characteristics within the Equality Act).  The Human Rights Act 1998, brought the Convention into domestic law and the Scotland Act 1998 provided for the Scottish Parliament to encourage equal opportunities.

In addition, disabled people have featured more heavily in social policy and policy development.  A new societal understanding of disability has been encouraged and people who do not hold any specific religious conviction have their views recognised too, in addition to any traditional religious systems of belief.

Institutional Discrimination in Context

Bedroom Tax

In the first example, we see that both the disabled person (the kidney patient) and the single person (the parent) face discrimination against their own particular circumstances.

The Government has approached the Policy decision to withdraw financial support for extra bedrooms from the perspective of cost.  The policy primer; cut the cost of housing benefit, save the tax payer money and cut the budget deficit - look good to the voters.

Although the UK Government did consult concerning their policy, they ignored the representations made.

The policy discriminates against disabled people, who require a spare bedroom, as a consequence of their disability.

The policy also interferes with the respect for family and private life.  This is a Human Right found in Article 8 of the Convention.  It also likely indirectly discriminates against men, as single parents, who are statistically less likely than women to hold "full time" caring responsibilities for any children.  (Indirect discrimination occurs where an apparently neutral policy, criteria or practice has a disproportionate effect on one group of people more so than others).

The UK Government was aware of these policy impacts.  Yet, despite being made aware, the policy continues under the auspices of expediency.  In this case, the need to save money.

The policy is an example of institutional discrimination for that reason.      
        
Non Binary Gender

As described above, non binary gender people are protected from discrimination at any stage in their gender reassignment process or if they are perceived to be undergoing a gender reassignment process.  Yet, the Passport still requires to bear either a Male of Female gender identity.  Toilets and changing rooms remain focused on either male or female gender roles.

If you do not subscribe to either a male or female gender identity, what do you do about your Passport or which set of changing rooms do you use?

The culture of expediency is found here as well.  It is easy to use only male or female gender identities, that reduces the need for training of staff around the issues, the redesign of Passport form and booklets or changing the policy around toilet designs.  It is also easier to accept and go with the pre-existing convention, than seek to challenge it and thus have to face questions from the curious public about new ways of working.

This is institutional discrimination.  

The Court System

Direct disability discrimination can not be justified in law.

Almost 20 years have passed since the advent of the Disability Discrimination Act.

Public services have been put on notice for some time that old ways of working - which excluded disabled people - were not acceptable.

Similarly, public services should have also been aware that their legal duties do not stop with a limited range of reasonable adjustments.

The legal duty is both anticipatory and continuing.

Yet, disabled people, with a range of mobility related impairments are routinely discriminated against in both the facilities and accommodation they are presented with.

If someone is in a wheelchair, how is that person to give evidence from a "Box" if it features a step and is not wide enough to accommodate a wheelchair user?  Are lawyers with mobility impairments able to apply for the role of Sheriff (Judge) knowing that the working environment is largely inaccessible?

Of course, it is possible to make reasonable adjustments.  However, the crux is that it would not be necessary to do this if our Court buildings were made accessible in the first place.

The situation is further compounded when new facilities are built or when existing facilities are refurbished and the old, discriminatory, inaccessible practices continue.

This is institutional discrimination.

A similar story is found concerning the swearing of a witness' Oath.

The Law recognises and prevents discrimination against people with religious beliefs or people without religious beliefs.  This is a qualified right, in that it is not possible to claim religious discrimination when providing public services (for example, for a Christian couple to refuse B&B accommodation to a Gay couple).

Yet, the standard Oath used in Court is the religious Oath.

It is assumed, almost entirely, that this Oath will be used because it has formed standard practice for so many years.  An alternative is available, however it is not readily used or advertised.

This too, is institutional discrimination.
  
Going Forward

It is easy to discriminate.  That is self evident. 

It is more difficult, perhaps because of cost, resource allocation, or some other reason not to discriminate.

It is also too easy to provide passive acquiescence to the discriminatory status quo.    

However, both society and the law accept that discrimination is unacceptable.

Just as Sir Macpherson found in his report concerning the Met, institutional discrimination needs to be exposed for what it is.  It requires public scrutiny, it needs to be talked about and services have to be aware of how their organisation operates, at an institutional level, in generating an acceptable culture of discriminatory practice.

It is important, that where institutional discrimination is identified as a problem that no attempt is made to cover it up, silence complainers, or apply selective memory to recording particular incidents because of "...processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and  stereotyping..."

The UK Parliament held a Committee investigation into the progress made by the Police, in the ten years following the publication of the Macpherson Report. 

It was noted here that all but a few of the recommendations made had been implemented and had it not been for Sir Macpherson drawing attention to the problem through the label "institutional racism" little if any, progress would have been made. 

This is why it remains important to "call it out" wherever "institutional discrimination" is found. 

Only then can we move forward to generate positive solutions for overall cultural and thus institutional change.

Supporting Disabled Students

The end of August marks the end of school holidays, the beginning of many college courses and the start of the new university year.  

However, if you are a student with a Disability, some planning many have to go into the start of your academic year in order to facilitate the support you need to stay on course. 

First of all, it is important to remember that you are just as entitled to attend school, college or university as everyone else.

It is also important to always believe in yourself, you can do it.

Dyslexia as an Example

At times, the society we live in may make education difficult.

For example, if you are dyslexic and have difficulty reading, remembering and writing - the three "Rs" as far as Dyslexia is concerned - the need to hand in written work, read through pages of black and white text and then to sit a written exam on the subject, educational achievement may seem like a challenge.  However, it need not be.

In this case, you may be entitled to additional time with your course work, to additional time with written exams, to use a scribe, to additional toilet breaks if you need a breather, the use of a computer and assistive technology.

This list of support described above is by no means prescriptive nor is it exhaustive.

What the list reflects are the potential "reasonable adjustments" that can be put in place for you to help you stay on course.

Personal approach is necessary

It is also important to remember that no one person with a disability - whether it is dyslexia, a mental health condition, a physical support need or something else - is the same.  We are all unique, and with that, each of us may have different support needs.

Unfortunately, many school administrators like to group disabled students, misunderstanding that the support needs for one person may not be the same as those you require.  This can lead to some difficulty in determining what is "reasonable" in terms of the adjustments that any institution may have to make.

The Medical Model of Disability

For example, a number of years ago the issue of student mental health - as a disability - was hotly contested within the education sector.  There was, and still is, to some extent, a lack of understanding concerning mental ill health.

Many educationalists preferred to focus on the medical model; always seeking a diagnosis and determining from that whether or not mental health fell within the scope of "disability" in order to make any reasonable adjustments.

The over reliance on the medical model, is something that many more experience disabled activists will be familiar with.  For the sake of brevity, the medicalisation of a disabled person removes the personal, it dehumanises and it predominately sees the disabled person as a problem.

The Social Model of Disability 

This approach is contrasted with a social model of disability.  Under this model, it is society, with its focus on maintaining utility for the majority, that is actually the problem.

The majority of people are able bodied, do not use wheelchairs and  do not have support workers to enable day to day living.  This is why, amongst other things, buildings, services, educational assessments and the way our society operates are all designed to accommodate the utility for the majority.

The social model articulates that society is actually the disabling factor.  Unlike the medical model, the societal understanding of accommodation is the problem.  Importantly, the problem is not the disabled person themselves.

Mental Health as an Example

Returning to the example of mental health, the medical model almost entirely ignores the problems created by society in providing appropriate support - and reasonable adjustments - for people with mental ill health.

Additionally, the medical model also seeks to categorise - through diagnosis - the mental health problem in hand.  This means that people with depression, anxiety, bi-polar disorder or some other category are often grouped together rather than being looked at as individuals with personal support needs.

What is essential to providing support to any disabled person is that you have an understanding of the support needs for that person; not as a homogenised group of persons with a particular category code or diagnosis.

A student with a mental health problem may experience problems with motivation, concentration, memory and also experience fatigue and general ill health.  In order to support someone in this context, a support worker may be necessary, additional time for assessments allowed, no penalties for handing in work late or absence.  Again, this is not an exhaustive list.  

The Law

The legal position concerning reasonable adjustments is found in the Equality Act 2010.

The Equality Act is lengthy and for this reason, a summary of what it says is provided here; 

1. Disabled students are protected from discrimination - discrimination can either be direct or indirect.
2. Protection also extends to acts of harassment or victimisation for a reason connected with the disability (in some circumstances, the criminal law also provides protection).   
3. You do not need to be disabled yourself to benefit from protection; you are also protected from discrimination by association or a reason connected with the disability.   

Education providers, whether schools, colleges or universities must make reasonable adjustments to provide support for disabled students.  There is no prescribed list of what is reasonable and what is not, as this is always context and person specific.

In some cases, an education provider may decline to make a reasonable adjustment, if it is felt that the request is not reasonable.

If a dispute arises concerning a School, there are specific tribunals established to resolve a dispute.  Unfortunately, the tribunals do not have jurisdiction over colleges and universities.  In these cases, a dispute would have to be resolved through the local crown or sheriff court.

Getting Support

It is important to make contact with your education provider as soon as possible. 

The institution should then refer you to an appropriate service to seek support and discuss reasonable adjustments.  In many colleges and universities there is a dedicated student support service with disability advisers who can make recommendations.

It is important to be as open as possible about what support you may require.

The discussion you have is a two way process.  You do not simply have to accept what someone tells you, if you want something else or do not feel that it is appropriate.   

You may also be asked to provide evidence.  This is a reasonable request, but it should not be made too onerous.  For example, in the case of dyslexia a report summary from a Psychologist should suffice.  In the case of a mental health issue, a letter from a G.P.   

Please note, if you are told that the recommendations do not have to be accepted by the course provider, then this could constitute an unlawful act of discrimination, harassment or victimisation.  

The law says that reasonable adjustments must be made.  The law also prohibits discrimination.  Education providers are not given a choice about the law; it is there to protect you.

In Higher and Further Education, the Government provides a scheme called the Disabled Students Allowance (DSA).  The DSA provides funding for you to buy equipment, software and to access non medical personal help.  In order to access DSA funding, your education provider may have to refer you to a specialist assessment centre.

Once you settle into your academic year, you should be able to enjoy your course and fingers crossed, that with a little planning in advance, you get the support you need.     

The Equality and Human Rights Commission has prepared various guidance notes concerning Equality in the Education sector.  For more information, visit: 
http://www.equalityhumanrights.com/advice-and-guidance/new-equality-act-guidance/equality-act-guidance-downloads/
         
Caveat:  This article is not legal advice. 

Edinburgh Fringe - The Mushroom Cure

Anti-depressants, talking therapies, tranquilizers, psychological intervention are all the norm in seeking to treat mental ill health...ever tried psychopharmacology?

One in three of us are likely to experience mental ill health at some stage in our lives, but what can you do when all else fails?  

Adam Strauss has obsessive compulsive disorder (OCD).  Or more precisely, had OCD.

In his comedic monologue Adam describes the symptoms that many of us will all be too familiar with.  Indecision, procrastination, opinion forming based on irrational fears or failure and rejection; do it once, twice, three times or more...its got to be perfect!

The sheer frustration experienced by Adam and others with the condition is felt through the intensity of his performance as he paces, changes chair, lays on the floor and relays the story.

As he opens up to the Audience you can feel the energy in his voice, courageously recounting his experience as his story (and it is a tale to be told) simply explodes out of him as if a champagne cork had popped.

The use of comedy, as opposed to theatre or spoken word, as the medium to deliver this tale also manages to relax the audience.  Its difficult not to find it funny.  You are left thinking am I allowed to laugh at the man who buys eleven of the same shirts, two different branded MP3 player - just to test the sound, who pays his Therapist in sleeping tablets and finds companionship in a Girl who boils up cactus in a carefully chosen Lobster Pot?

The show generates laughs as it does inspire; whatever your motive for wanting to see "the Mushroom Cure" its far from conventional it its approach to taking on a debilitating condition such as OCD.

Its rare to see such openness about the personal life of someone with a mental health problem.  This is why Adam deserves the credit for tackling the taboo.

The Show is not so much about curing OCD through Magic Mushrooms, nor does Adam advocate taking his phallic fungi as your own personal cure - that's not really the point.  Its about a unique journey in finding acceptance in who you are and recognizing that no matter how hard you try you cannot control the world around you. 

The Mushroom Cure is on at the Underbelly in Cowgate at 15.50.  You can book tickets online via the Edinburgh Fringe website.

To find out more about Adam's show, visit: http://adamstrauss.com/

Edinburgh Fringe - If These Spasms Could Speak

What do you think of when you meet a disabled person? Do you stare or look away? What questions would you like to ask, but are too afraid to voice?

Challenging your perceptions from the outset, Robert Softley crawls, climbs and jumps up onto the stage - no wheelchair in sight. You may double take. Surely such behaviour, for someone with Cerebral Palsy, isn't safe?

Softley describes his disability and how it has affected him. His personal account of experiences growing up and entering adult life are illuminating. His accounts explain and educate, laced with his high heeled humour, enabling you to laugh along the way.

In addition to his own personal experiences, Softley has used the stories of other disabled people of how they feel about their bodies to provide further insight. The openness of each account impresses, holding your attention as questions you didn't know you had are answered with completely unexpected transparency.

No subject is taboo. Family, friendships, eating, drinking, going for a run, disciplining wayward adolescents and even sex are all covered as part of this intimate presentation of how disabled people experience life and their interaction with our disabling society around them.

The show is not a training programme concerning the lives of disabled people, nor is it a lecture about disability, equality or the law. Each story told is personal, intimate and, although serious in subject matter, has the power to make you laugh.

Go along, and bring those questions you were too afraid to ask.

If These Spasms Could Speak is on at the Pleasance Courtyard at 17.45.  

For more information or to book tickets click here.  

***STOP PRESS***

Softley has just announced via facebook that the show will be touring Scotland and then moving to Brazil (all following the fringe of course)

For more info visit http://www.ifthesespasmscouldspeak.com/

Fish Fingers and Law

On Sunday 14th July a Highland Restaurant refused to sell a portion of Fish Fingers to a man because they were on the Children's menu.

The Man has Down's Syndrome and according to his family, can only eat small portions.  Fish Fingers are his meal of choice.

The Family have claimed that they were kept waiting for an unacceptable length of time and that the refusal to sell the Child's portion amounted to discrimination.  

The Restaurant have denied discriminating against the man and have stated publicly that they apologise and wish to make amens.  They have also launched a formal investigation into the matter and a representative of the family is currently in touch with the Regional Manager for the Hotel, of which the Restaurant forms part.  

Although, this case has been more widely publicised for the 70 thousand or so followers of the Facebook campaign which followed the incident, the facts here highlight the potential Equality and Discrimination law challenges within the Hospitality Sector.  

This article explores the some of the legal and practical issues faced in hospitality sector when presented with a potential case of discrimination.  

Legal Issues

It is important to remember that the Equality Act applies to the hospitality sector.  

Employment

The sector is an employer and a provider of goods, facilities and services.  The Equality Act states that it is unlawful to discriminate on grounds of disability and that discrimination can be both direct and indirect.  It is also unlawful and in some cases criminal, to victimise or harass someone because of their disability.  In order to avoid discrimination, there is an obligation as an employer to make "reasonable adjustments" for any disabled members of staff.

Reasonable adjustments for staff may include changes to a working pattern or the provision of auxiliary aids to enable a disabled employee to stay in work.  There is no prescribed list of reasonable adjustments because making the adjustments and understanding the support needs of disabled employees is very person specific.  

Providing Goods, Facilities and Services

There is also an anticipatory duty to make reasonable adjustments for disabled people as visitors, guests, clients or customers.  

This may mean ensuring that a building is fully accessible (wide enough corridors for wheel chair uses, the use of ramps and suitably sized lifts, appropriately located accessible toilets etc.). It may also mean that a conference venue is equipped with a hearing loop and suitable audio visual technology to allow disabled delegates to fully participate; not to mention that the venue itself is accessible (accessible does not mean requiring someone in a wheel chair to go around the back and use the servants entrance!) This is by no means an exhaustive list and should not be interpreted as such.  

The crux is that it is for providers of goods, facilities and services to anticipate the use of those services by disabled people, and to have make suitable adjustments in advance to allow that to happen.  

"DDA Compliant" does not exist

It is also important to keep in mind that there is no legal concept known as "DDA compliant" - and there never has.  This unfortunate use of phrase has been used by many to advertise that their services comply fully with the (former) Disability Discrimination Act.  

First of all, there never was a legal test of compliance within the Disability Discrimination Act.  It was and remains impossible to say that you are "DDA Compliant".  

The duty to make reasonable adjustments, whether for employees or as a provider of goods, facilities and services was an evolving one, continuing (it did not stop) and subjective (be it person, building or service specific).

There was no tick box list of what was reasonable and what was not.  There was no exhaustive list of what was a disability and what was not.  

Secondly, the Disability Discrimination Act has now been replaced by the Equality Act.  The duties under the former legislation continue in the new legislation.  

If something is described as "DDA Compliant" is usually means that it is not.  It demonstrates a complete lack of understanding of the relevant legislation and the legal obligations contained therein.  

Staff Training

Regular staff training is also important as part of the anticipatory duty.  For example, understanding that disabled people are not a homogeneous group, the term "accessible" does not just incorporate wheelchair users, that assistance dogs are not just for blind or partially sighted people and that some disabilities may in fact be hidden and not obviously apparent are all important to keep in mind.  For the avoidance of doubt, this is not an exhaustive list of items to be included in a training exercise.  

Taking this background into account, where does it leave the present case?  Is it discriminatory to refuse to sell a children's portion of fish fingers to a man with Down's Syndrome?

First all all, it is important to be clear that these cases of potential discrimination are rarely clear cut.  The approach taken below will be multi-faceted; examining arguments presented by both parties.  

The Duty not to Discriminate 

The Length of Time the Family had to Wait

One version of events suggests that from the outset, the group of three customers were kept waiting because one of their party was a man with Down's Syndrome.  

In this case, it is implied that the waiting time amounted to less favourable treatment.  

This would mean that the group were treated less favourably than the restaurant would treat another group of three people who did not have a man with Down's Syndrome within their party. 

If this was the case, then this would amount to unlawful discrimination.  

However, it is important to explore other potential reasons for the wait.  For example;

(a)  Was the restaurant short staffed?  

(b)  Did the staff know that group of customers were waiting to be seated and ultimately served?  

(c)  Could there have been a breakdown in communication between the front of house and the waiting staff?  

(d)  In all the circumstances, was the waiting time reasonable?  

Additionally, poor customer service, in itself, does not necessarily amount to unlawful discrimination.  

The Hotel management have stated that the party were seated and told that there would be approximately a 20 minute waiting time for food (15 minutes to cook and 5 minutes lay over in case of a problem).  

The Family do not dispute that they were told about the waiting time, but have argued this was because one of their group had Down's Syndrome and the Restaurant did not want to serve them.  

It is unlikely, that the waiting time on its own, would have amounted to discrimination.  

In order to be discriminatory, the group would have had to have been treated less favourably than others in the same circumstances.  A 20 minute food service window is not unreasonable if food is cooked from fresh and this has been brought to the attention of all customers.  

The Choice of Menu - Adult versus Child

The Children's menu is printed on the same card as the Adult menu.  It stated that Children eat for free on a Sunday and the restaurant's tills were programmed accordingly.  Children is defined by the restaurant as under 12s.  

The Family asked to order from the Children's menu because it had (1) smaller portions and (2) fish fingers - a food which the man with Down's Syndrome could eat without issue.  There was no fish finger option on the Adult menu.  

The Hotel claims that the server explained that because of the difficulty with the programming of the till, they could not offer a Children's portion of fish fingers but would ask the Chef to prepare a suitable alternative (Goujons) in a smaller portion.  

The duty to anticipate

It is reasonable to anticipate that some would be diners may have specific dietary requirements; some of which would be in consequence of a disability.  

In this sense, any restaurant would have to anticipate the possibility of offering non-menu item alternatives.  This may include, for example, offering something from a different menu, if available, or arranging for limited bespoke cooking depending on the circumstances of the case.  

In the circumstances, what is reasonable?

In determining whether or not a particular course of action is reasonable, it is important to consider a range of factors such as the proportionaility of making the adjustment, the availability of any alternatives, the practical difficulties posed amongst other factors.  

In this example, the Hotel did offer an alternative.  However, this has to be contrasted against whether or not making the requested adjustment (providing fish fingers from the Children's menu) would have posed any particular difficulty for them.  

The Children's menu was available in this case, notwithstanding potential difficulties with the Till system.  There does not seem to be any reason there for why the Hotel could not have offered Fishfingers as requested.

Equal treatment may still discriminate

The Hotel's point of view here is that the guest presented to them as an adult.  The staff in the Hotel therefore treated the man as an adult and explained that the Children's menu was reserved for the Under 12s.  

The Hotel is adament that no discrimination took place; they treated this guest in the same manner as any other adult guest.  

In these circumstances, a well intentioned stance of equal treatment for everyone, may have amounted to indirect discrimination.  This is where a provision, criteria or practice which applies equally to everyone places a disabled person at a substantial disadvantage compared to a non disabled person.  

The potentially discriminatory provision here is that the Children's menu is only available to under 12s; notwithstanding that some disabled would be diners may seek to order from that menu.

The Hotel did not make any adjustment to this provision and potentially, because the specific dietry requirment of this guest arose in consequence of his disability, could be said to have discriminated (even if that was not the intention).  

The Importance of Staff Training

As highlighted above, poor customer service in itself does not amount to discrimination.  However, ignorance of the law and in this case the multi-faceted obligations of the Equality Act 2010 is not an excuse either.  

This view is echoed by the Chief Executive of the Institute of Hospitality Peter Ducker:

“Good induction practices and staff training are essential to ensure your staff are diversity-aware.  Research shows that many of us are afraid of causing offence or not knowing what to do when interacting with a disabled person.
You might think that none of your guests are disabled so there is no real need for you to tailor your service to meet their needs.  But you would be overlooking the fact that, according to the 2011 UK census, one in six people has an ‘activity limiting’ health problem or disability.  In fact, many of your existing customers are likely to be in this group but you may not realise it.  Impairments such as arthritis, poor eyesight, back problems and autism are invisible and most people will not mention them when booking a room with you.
There is a common misperception that to become fully accessible requires investing huge amounts of money in widening doors and building ramps, but less than 10% of disabled people are wheelchair users.  If we think of accessibility in its broadest sense, some small changes can lead to your business being more welcoming to a wider range of people.
VisitEngland research shows that disabled people and their travelling companions spend over £2bn a year, accounting for 11% of all domestic overnight stays in the UK.   Disabled people stay longer on average (3.6 nights) than non-disabled people (three nights) and are more likely to travel with carers, relatives or friends and stay during quieter times.”

Useful Resources

For more information on the Equality Act and the legal obligations of the providers of goods, facilities and services, please visit the Equality and Human Rights Commission website: www.equalityhumanrights.com

The Hospitality Institute has also prepared three short training videos about valuing diversity in the sector.  These can be viewed online here: http://www.youtube.com/VisitEnglandBiz