Administrative court; Fordham J, [2021] EWHC 2108, 28 July 2021

In this case the High Court (Fordham J) ruled that the respondent had discriminated against the claimant, who was profoundly deaf, by failing to provide of British sign language (“BSL”) interpreters for Government live briefings to the public about the Covid-19 pandemic on 21 September 2020 and 12 October 2020. The claimant challenged the failures on those occasions and also sought to challenge the respondent’s continuing refusal to use ‘on-platform’ as distinct from ‘in-screen’ BSL interpreters for briefings. The claimant sought to establish failures of the PSED imposed by s149 of the Equality Act 2010 in respect of the  defendant’s ongoing approach to briefings, as well as failures of the duty to make reasonable adjustments imposed by ss20 and 29(7)(a) of the Act. The PSED claim failed as did the reasonable adjustment challenge to ongoing (‘in-screen’ BSL) briefings. The decision includes a comprehensive discussion of the leading authorities on disability discrimination in the context of services/public authorities.

At §15 Fordham J accepted the evidence that BSL was a language in its own right, distinct from English and regularly used by a significant number of people (perhaps 127,000 BSL users in England, of whom 73,000 are Deaf BSL users), and that many d/Deaf readers had an average reading age of 8 to 11 years such that subtitles were not an alternative to BSL interpretation. He also accepted that deaf people faced isolation and barriers to health information.

Dealing with the reasonable adjustment claim in respect of the 21 September 2020 and 12 October 2020 briefings, the Judge referred to five decisions of the Court of Appeal (Roads v Central Trains Ltd [2004] EWCA Civ 1541, 104 Con LR 62; The Royal Bank of Scotland Group plc v David Allen [2009] EWCA Civ 1213, Royal Bank of Scotland Group Plc v Allen [2009] EWCA Civ 1213, [2010] 1 EGLR 13; SSWP v MM [2013] EWCA Civ 1565; Finnigan v Chief Constable of Northumbria Police [2013]  EWCA Civ 1191, 134 BMLR 1 and VC v SSHD [2018] EWCA Civ 57, [2018] 1 WLR 4781, concluding that the legislative policy was (§20, citing MM and Roads) “to enable the disabled to enter as fully as possible into everyday life” including by the requirement for reasonable adjustment, the purpose of which was “so far as reasonably practicable, to approximate the access enjoyed by disabled persons to that enjoyed by the rest of the public”.

The judge pointed out at §24 that, the duty of reasonable adjustment being triggered by disadvantage to disabled people as a class in services/ public function cases, it was “an error to consider the reasonable adjustments duty by reference to the needs of the individual claimant, rather than by reference to the needs of the relevant class” (citing Finnigan §§31, 36; Roads §11; EHRC Code of Practice: Services, Public Functions and Associations §§7.20, 7.20; MM §43). He adopted the claimant’s articulation of the class as “Deaf BSL users”, citing in support §§7.24-7.25 of the Code; Finnigan §§31, 33 & 39; MM  §66; VC  §153; Roads §§11, 14, 25, 26 & 28) and Paulley v FirstGroup plc [2017] UKSC 4, [2017] 1 WLR 423 §25), pointing out at §25 that the comparator group was of people who did not have a, as distinct from the particular, disability in issue. The question of comparative disadvantage had to be assessed (§26) without reference to any steps taken by way of adjustment (citing Finnigan in which the Court of Appeal ruled that the test of comparative disadvantage involved taking “the base position before adjustments are made to accommodate disabilities”, constituting “practices and procedures which apply to everyone”, but which excluded “adjustments”, including for example “the use of lip reading” (§29). At §§27-28 Fordham J accepted that the comparative disadvantage test was met:

28. My reasons, for identifying a comparative substantial disadvantage, whose nature and extent are serious, are as follows. The very nature of the Briefings was to provide information to the public. That information related to a subject matter of the greatest public interest and a vital concern: the pandemic. That was true of each of the two Data Briefings (21.9.20 and 12.10.20). They were important. They were focused on objective data. They were led by Government scientists. In the context of the pandemic … the circumstances were unprecedented and challenging for Government; but they were also unprecedented and challenging for the public, who needed access to information, to help them to understand and to adhere and to manage their conduct and expectations for the future. Messages or alarm or reassurance, about being ‘in this together’ and acting responsibly, about ‘following the science’, required inclusion and accessibility. This was information being supplied to the public by Government. It was information provided in a fast-moving context, needing clarity, with frequent resort to science and statistics. Engaging the involvement of an understanding and adherent public was a high value. Given the position regarding BSL and Deaf BSL users  … without BSL interpretation there was a clear barrier, for a vulnerable and marginalised group, undermining accessibility of information. The message was blocked, or scrambled, or delayed. The barrier to information in an accessible format arose by reason of disability. The lack of provision – the provision of subtitles only – was a failure of inclusion, suggestive of not being thought about, which served to disempower, to frustrate and to marginalise. The immediate experience was of important urgent messaging being delivered to the public, known to be being provided, but with an inability to access or understand it. The substantial, foreseeable and palpable effect would be an exclusion, and a justified sense of grievance, about which a reasonable person would certainly have good reason to complain, and about which affected people would reasonably say that they would have expected and urged – let alone preferred – to have been treated differently. All this, moreover, for a significant and substantial number of people. All of which fits with BSL interpretation as a paradigm auxiliary aid or service, and a paradigm reasonable adjustment … BSL interpretation takes its place as a reasonable adjustment, a reasonable step, which the reasonable adjustments duty may require. It does so because – as in this case – the duty is triggered in the application of the test of comparative substantial disadvantage”.

At §30 Fordham J stressed that the duty was anticipatory and at §31 that it was continuous and evolving. At §33 he concluded that, the burden of proof had switched to the defendant to prove that it had not breached the duty. At §35 he rejected the arguments put for the defendant concerning the extremely challenging circumstances, the provision of live subtitles and the availability of other sources of information, including Ministerial briefings in respect of which BSL interpretation had been provided, also that the Defendant had been entitled to rely on the BBC to make suitable provision and it had been the BBC, unknown to the Defendant, which decided that BSL interpretation was not needed for the briefings in issue. The disadvantage to which Deaf BSL users had been put was severe and the Defendant was not entitled to rely on the BBC to discharge its obligations absent arrangements so to do. The duty was a proactive, anticipatory one and applied during Covid as at other times, and the information disclosed in the briefings in issue here was of great importance:

“‘subtitles’ – fast-moving text in relation to technical information in a language which is not the first language of BSL users and assumes a level of literacy in that further language which very many of them simply will not have – are not an answer for Deaf BSL users. I would go further. The idea that ‘subtitles are an answer’ amounts to ‘a stereotypical opinion or feeling about individuals who share a protected characteristic … formed without proper knowledge of people with that protected characteristic’ and thus constitutes ‘prejudice’ (EHRC, Technical Guidance on the PSED §3.38)… It is right, of course, that Government was dealing with an unprecedented public health and economic emergency … But that was also the context for the public and for Deaf BSL users. Yes, this increased the burden of the challenges on Government. Yes, this informs the appreciation which any Court must have when considering actions in extremely challenging circumstances. However, it also increased the importance of information and its accessibility, particularly for groups and subgroups of people with different disabilities. The issue of BSL interpretation for Briefings had been raised … in clear and sustained ways. It was in the context of the pandemic that the July 2020 Good Practice Guide on Accessibility of Covid 19 had emphasised, with specific reference to BSL interpretation, consideration being given of the ‘accessibility of information shared in press conferences … broadcast directly as a means of sharing new and vital information to UK citizens for the first time’. It was in the context of the pandemic that the May 2020 Covid 19 Accessibility Principles had emphasised that ‘critical government information on coronavirus must be accessible to the widest audience possible’, identifying formats to cater for additional needs (the first example given was BSL), and recognising that TV ‘usually has widest reach and high spend so always needs to have alternative formats’…”

Fordham J concluded that the claimant, who he was satisfied had herself been subject to detriment, was entitled to a declaration that the Defendant had discriminated against her by its failure to comply with the duty of reasonable adjustments on the occasions of the September and October 2020 briefings. He transferred the question of damages to the county court though he emphasised that the High Court could itself award damages in a suitable case. He was not inclined to do so here because, while damages were squarely raised, the transfer would “allow an opportunity for any appropriate greater clarity” (§37). He rejected the defendant’s contention that the use of the word “may” in s31(4) of the Senior Courts Act 1981:

“inject[ed] a principle of public interest discretion into (i) principles applicable to a cause of action or (ii) the assessment of quantum… The judicial review Court ‘may’ deal with any claim for damages, restitution or debt. Or it ‘may’ transfer the matter to another appropriate judicial forum (an example is immigration detention damages for false imprisonment). Or it ‘may’ leave the claimant to pursue a claim in another appropriate judicial forum (an example is a Woolwich-type sequel claim for restitution). If the judicial review Court decides to deal with damages, it does not then do so by reference to a general discretion to alter the principles of recoverability or alter the basis of the recoverable quantum. The point of including these monetary remedies in judicial review is to allow a one-stop shop for remedies including monetary remedies arising out of the impugned public authority action. The judicial review Court does not rewrite – in favour of the defendant or the claimant – the principles of recoverability”.

Turning to the PSED, Fordham J declared at §39 that while “[t]he PSED is characterised as being concerned with ‘process’ rather than ‘outcome’ (or ‘result’) [citing R (Bridges) v Chief Constable of South Wales Police [2020] EWCA Civ 1058 [2020] 1 WLR 5037 §176; Adiatu §204] … ‘process’ here includes enquiry, thinking-process and reasoning-process. Indeed, ‘regard’ is the language of statutorily-prescribed ‘relevancy’. But the PSED is more than a ‘relevancy’ provision. The special nature and value of the PSED is linked to the ideas of “due” and “need”, to the limbs (a) to (c) of the PSED, and to the statutory purposes in a statute concerned with equality… Enforcement of the PSED does not extend to the question of how much “weight” to give to the duty, or what “weight” should be given to the equality implications of a decision or action: these are matters which fall outside the PSED as a ‘process’ duty [citing Hotak v Southwark LBC [2015] UKSC 30 [2016] AC 811 §75; Bridges §175(6).]”

The argument put for the claimant was that the defendant had failed to have due regard to the relevant equality issues in that it had produced a PSED assessment only on the eve of the hearing, “too little too late”. The assessment was said to lack (§41) “meaningful evidence-based thinking (eg. concerning the position of Deaf BSL users and levels of literacy)” or consideration of the on-platform provision of BSL interpreters in Scotland and Wales. “[T]here has been no commissioning of any research; there is no clarity as to policy implications; assertions are made without being underpinned by evidence or enquiry, including points referable to the position of Deaf BSL users themselves (eg. asserted disadvantages for them of on-platform provision of BSL interpreters); there is an underlying absence of a legally sufficient enquiry and consultation with those affected; and the PSED Assessment does not grapple with the reasonable adjustments legislative policy of ‘closest reasonably approximated access’. As to ‘too late’: the PSED Assessment was provided at 6:30pm on Friday 28 May 2018, just one working day prior to the deadline for the Claimant’s skeleton argument for the substantive hearing; it is clearly a ‘last-minute job’, produced in response to judicial review proceedings; and as a “rear-guard action” (Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 134 §26(4)).

Fordham J considered the PSED assessment in great detail. That document paid specific, detailed consideration to the relative merits of “in screen” and “on platform” BSL interpretation and to the role of the briefings in the overall communication about Covid. Fordham J rejected the claimant’s criticism of it notwithstanding what he described as “three question-marks” which arose from it (§44):

“(1) Neither the PSED Assessment nor the submission which accompanied it directly address the reasonable adjustments legislative policy of ‘closest reasonably approximated access’… (2) The PSED Assessment identifies as a “disadvantage” of on-platform provision of BSL interpreters that they are worse for Deaf BSL users themselves, in particular as to prominence and visibility (“the BSL interpreter would be much less prominent. At present, they are at the front of the screen, clear and well lit. If on platform, they would be less visible”) but no link is made to what is known about what Deaf BSL users themselves think about such a “disadvantage”. (3) The PSED identifies this and other ‘disadvantages’ of on-platform provision (in the context of data-slides and journalists’ questions) but no link is made to what is known about the experience in Scotland and Wales, where on-platform provision is made. Those are three serious question-marks… they each operate as weaknesses in the Defendant’s reasoning when the Court comes to apply the objective standard in enforcing the reasonable adjustments duty … I accept that (2) and (3) can be characterised as aspects of rigour, proactivity, evidence-based thinking and sufficiency of enquiry … But, in my judgment, they are points, in the present case, whose force properly belongs to the Court’s substantive objective analysis of the reasonable adjustments duty. Putting the point another way, the vice – if there is one – lies not in the ‘process’ or the ‘enquiry’. It is not about things ‘not yet … known’ to the Defendant (Bridges §181: §43 above). The Defendant has the fruits of enquiry, sufficient in order to make a lawful decision. The issue is known to have been raised … with views expressed, and points made about Scotland and Wales. The PSED Assessment itself … refers to the issue of on-platform provision having been repeatedly raised… and to the ‘number of organisations [who] had requested that an on-platform interpreter be provided’. If there is a vice in these question-marks, it is not one lost to the legal analysis. Rather, it is one which informs the area in which the Court is applying the substantive criterion of reasonable adjustments”.

As to the fact that the assessment had been (§43) “produced in the context of the judicial review proceedings, and ‘at the door of the Court’.

Nothing is more likely to focus the judicial mind. But the standards of scrutiny remain the same. I do not accept that the PSED Assessment is a rear-guard shield. No evidence before me suggests that it was produced with an ‘agenda’, or that the writer was reasoning backwards from a chosen policy position being defended before a Court. If any material or information existed of that kind it would have to be disclosed under the duty of candour and cooperation, one feature of the relationship of trust between Court and public authority which is so central to the rule of law and access to justice. The Court has been presented with the PSED Assessment as an objective and open-minded consideration of the issues. I accept what is presented to me: that the document is what it purports to be. In my judgment, and on that basis, the PSED Assessment is a rigorous evaluation which recognises the features of the statutory duty and which cannot, in any material respect, be said to be a failure of ‘due regard’. In the language of Bracking (§26(8)(i)) this Court must ‘ensure that there has been a proper and conscientious focus on the statutory criteria’. I have. In the language of Bridges (§175(6)) this Court must be satisfied that the PSED has been rigorously considered ‘so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them’; and (§181) this Court must also be satisfied that the Defendant has taken ‘reasonable steps to make enquiries about what may not yet be known to’ it. I am”.

Finally, as regards the substantive discrimination challenge to the ongoing failure to provide “on platform” as distinct from “in screen” BSL interpretation, Fordham J accepted (§45) that “Unless there were provision for on-platform BSL interpreters, but bearing in mind the provision of in-screen BSL interpreters and subtitles… people with a hearing impairment [would] be put at a more than trivial disadvantage in comparison with people not having a hearing impairment, in relation to the Government provision of information about the pandemic.” He did not accept that the disadvantage was “serious” where in-screen BSL interpretation was provided, but took the view that the presence of this ameliorating factor was not relevant at this stage, as distinct from when considering whether the duty to make reasonable adjustments had been met. Having concluded that the burden had passed to the defendant to demonstrate that the duty to make adjustments had not been breached (§45), Fordham J went on to accept the defendant’s argument, relying on Roads §13; MM, Finnigan §36, VC §153 and the Code §7.30, that it was entitled to select between different ways of fulfilling the duty.

The Judge regarded the case for on-platform BSL interpreter provision for the Briefings as “a powerful one”, referring at §48 to its use in Wales and Scotland; to “the fact that an on-platform BSL interpreter could be readily and inexpensively arranged” and to various to advantages, “directly linked to the relevant legislative policy of closest reasonably approximated access: that the presence of on-platform interpretation (1) would necessarily translate onto any broadcast; (2) would guarantee “that nothing can be missed through miscommunication or a technical issue or for any other cause or reason, in relying on an in-screen BSL interpretation feed for live event coverage” (3) serves to include Deaf BSL users “alongside everybody else, through the same primary routes and the same choice of routes as are available to the public generally” and (4) serves to promote the message of that inclusion. At §§49-50 he concluded that the original justification of social distancing for not having a BSL interpreter in the room, originally powerful, had faded with the move of briefings from cramped room to larger studio. Having considered in detail the points made in the PSED assessment about the adequacy and proportionality of in-screen BSL interpretation and the advantages of in-screen over on-platform interpretation Fordham J concluded at §55 that the latter was “closer to the standard of access normally offered to the public at large” and so, “[s]ubject to questions of reasonable practicability, and questions of what is reasonably possible … better promotes the legislative policy”. He discounted many of the arguments put for the Defendant about the relative advantages of on-screen interpretation, significantly because they did not reflect the views of Deaf BSL users/ user groups: “The fact that the Defendant has identified no support from any such persons or group leaves the suggestion that ‘Deaf BSL users are themselves better off’ with a hollow ring fatally undermining its capacity to persuade”. However, in view of the apparently intractable problem posed by the frequent use in briefings of data slides which, when broadcast, inevitably ejected platform interpreters from the screen, Fordham J concluded at §56 that the Defendant had “by reason of the PSED Assessment discharged the burden of showing … that it is not in breach of the reasonable adjustments duty: that it has, through in-screen provision, taken such steps as it is reasonable to have to take to provide BSL interpreters for the service of providing information about the pandemic through the Briefings”. This being the case (§57) “Whether to have an on-platform BSL interpreter for announcements and briefings from the Downing Street press room remains, as a policy choice, for Government to make and ‘own’, in respect of which it is accountable to Parliament and to the public… It is not the Court’s role in enforcing the reasonable adjustments duty – whether in a judicial review case involving a public authority service-provider, or in a county court claim involving a public authority or any other service-provider – to make or impose a choice from ‘comparably reasonable solutions’ in a case where there are different ‘steps’ which it would be ‘reasonable to have to take’.”

Claimant: Catherine Casserley,  instructed by Fry Law

Defendant: Zoe Leventhal and Nathan Roberts, instructed by Government Legal Department

post modified 15 January 2022