Tag: disability

Smith v Secretary of State for Levelling Up, Housing and Communities & Anor

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Court of Appeal, Sir Keith Lindblom, Holroyde and Coulson LJJ, [2022] EWCA Civ 1391, 31 October 2022

The claimant/ appellant successfully appealed the refusal of her application to quash a decision dismissing her appeal against a refusal of her application for planning permission for a permanent site for Gypsies and Travellers. The definition of “Gypsies and Travellers”, set out in the policy document “Planning Policy for Traveller Sites” (“PPTS 2015”) had been amended in 2015 to remove the express inclusion within the category of “Gypsies and Travellers” of those who permanently ceased to travel as a result of, inter alia, disability or old age. The effect of the exclusion was that the claimant was not regarded for planning purposes as a Traveller. Continue reading →

R (JJ) v Spectrum Community Health CIC

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King’s Bench Division, Administrative Court, HHJ Sephton KC [2022] EWHC 2440 (Admin), 30 September 2022

This was an unusual case in which the claimant, a prisoner who was paralysed from the neck down, without any teeth and unable to chew, sought to challenge restrictions imposed by the defendant on his diet. The defendant, which was responsible for feeding the claimant, sought to refuse him access to solid foods because of a high risk of choking. The unsuccessful challenge was brought on a number of grounds including under the EqA. Continue reading →

Cowie & Ors v Scottish Fire and Rescue Service

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EAT, Eady J , Mr D G Smith and Mr S J W Torrance, [2022] EAT 121, 11 August 2022

The defendant fire service was sued by two groups of employees, the first disabled workers who had shielded during Covid and the second women who had faced disruption to childcare arrangements during Covid. The defendant permitted staff to accrue time off in lieu (TOIL) through working overtime and operated a special leave policy which permitted staff who had exhausted TOIL entitlements to request time off to deal with emergencies and unforeseen needs. Continue reading →

R (Jwanczuk) v Secretary of State for Work and Pensions

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Queen’s Bench Division, Administrative Court, Kerr J, [2022] EWHC 2298 (Admin), 7 September 2022

The High Court ruled that the exclusion from entitlement to a bereavement support payment (‘BSP’) of the widower of a woman who had, by reason of disability, paid no national insurance contributions (because she was unable to work) breached Article 14 ECHR read with A1P1. In doing so the judge reached the same conclusion as Northern Ireland’s Court of Appeal had in O’Donnell v. Department for Communities [2020] NICA 36. Continue reading →

R (Efthimiou) v Mayor and Commonalty and Citizens of the City of London

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Queen’s Bench Division, Administrative Court, Cotter J, [2022] EWHC 1588 (Admin), 23 June 2022

This was a challenge brought under the EqA and the HRA to increases in the charges for use of Hampstead’s Ladies’ Pond. The claim was that the increased charges breached the defendant’s duty to make reasonable adjustments for disabled persons under ss20, 21 & 29 EqA and indirect discrimination against disabled people contrary to s19 EqA and Article 14 ECHR read with Article 8 and/or Article 1 Protocol 1. Continue reading →

R (CN) v Secretary of State for Health and Social Care

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Court of Appeal: Sir Geoffrey Vos MR, King and Dingemans LJJ, [2022] EWCA Civ 86, 4 February 2022

The claimant sought to challenge the exclusion from an infected blood compensation scheme of people who contracted hepatitis B (HBV). He had contracted HBV from unscreened blood in 1989 but HBV was excluded from the scheme because blood donors had been screened for HBV since 1972. The claimant sought to rely on Articles 8 and 14 and A1P1 ECHR and on s15 EqA (disability discrimination). His claim failed and the Court of Appeal rejected his appeal, relying on the Supreme Court’s decision in R (SC) v Secretary of State for Work and Pensions & Ors [2021] UKSC 26,  (see previous post) and ruling that any differential treatment of similarly situated individuals was justifiable given the intensity of review appropriate to judgments of social and economic policy notwithstanding the fact that disability discrimination was alleged. Continue reading →

R (Sheakh) v Lambeth London Borough Council

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Court of Appeal; Sir Keith Lindblom, Males and Elisabeth Laing LJJ, [2022] EWCA Civ 457, 5 April 2022

The Court of Appeal dismissed an appeal, based on the PSED, from the order of Kerr LJ refusing the claimant’s application for statutory and judicial review of experimental traffic orders (ETOs) creating Low Traffic Neighbourhoods which had been made by the respondent. Continue reading →

MOC (by his litigation friend) v Secretary of State for Work and Pensions

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Court of Appeal: Peter Jackson, Singh and Andrews LJJ, [2022] EWCA Civ 1, 11 January 2022

This decision concerned a challenge to the suspension of Disability Living Allowance (“DLA”) after an individual in receipt of the benefit has been hospitalised for 28 days. The challenge was brought under Article 14 read with A1P1 to the Convention by MOC, a 60 year old man with complex medical conditions and disabilities whose sister, MG, had been appointed to act as his deputy by the Court of Protection. Prior to his hospitalisation MOC, who had cognitive, mental capacity and mental health issues, Down’s Syndrome, deafness, blindness, dermatological issues, mobility issues, Hirschsprung Disease, double incontinence, dietary issues and severe learning disabilities, had lived with MG prior to his period of hospitalisation and was provided around-the-clock care by MG and her family. When MOC’s DLA was removed he appealed to the First-tier and Upper Tribunal and thereafter to the Court of Appeal. The claimant’s case was that his need for MG to look after his interests and advocate on his behalf did not cease during his period of hospitalisation. His appeal failed. Singh LJ, with whom Peter Jackson and Andrews LJJ agreed, ruled that the claimant had failed to establish the collective disadvantage required for an indirect discrimination claim, and could not rely on (lack of) capacity as a “status” due to its shifting nature, and that any discrimination was in any event justifiable. Continue reading →

Judd v Cabinet Office

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EAT: Jason Coppel QC, UKEAT/0260/20/AT, 9 December 2021

This is an interesting case in which the EAT rejected an appeal from a finding that the claimant had not been discriminated against because of something arising in consequence of her disability (s15 EqA), or denied reasonable adjustments (s20(3) EqA) when an offer of a secondment in Montenegro was withdrawn on health grounds. The claimant had been the victim of a crime shortly before having been offered the secondment and had had to attend A&E twice thereafter with significant health issues as a result, but refused to make full disclosure of her health condition. A tribunal dismissed her claim on the basis that the adjustments she sought would leave her at risk and that it was reasonable for the employer to withdraw the secondment offer. The situation was complicated by the claimant’s refusal to make full disclosure to her employer’s OH advisers of her medical history. Continue reading →

SM (a child, by his father and litigation friend) and another v Hackney LBC

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Queen’s Bench Division (Planning Court): Kerr J, [2021] EWHC 3294 (Admin), 7 December 2021

This was an unsuccessful challenge under Articles 8 and 14 and s149 EqA (the PSED) to experimental traffic orders (ETOs) made by the respondent which took effect from 9 November 2020. The applicants complained that they are severely prejudiced by increased car journey times to and from their school. The challenge was brought under paragraph 35, Part VI, Schedule 9 to the Road Traffic Regulation Act 1984 rather than by way of judicial review, and so did not require permission, but Kerr J pointed out at §4 that the same principles applied. He expressed sympathy for the applicants who he accepted had been disadvantaged by the ETOs but upheld them as proportionate measures in pursuit of legitimate aims of reducing congestion, improving air quality, road safety and accessibility, encouraging active travel to school and social distancing (applying R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, [2021] 3 WLR 428 [and see earlier blog]. He rejected the PSED claim on the basis that, taken in the round, the respondent had taken sufficient steps to comply with the duty of due regard.

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