Finding Specialist Legal Help for Disability Discrimination is Becoming Harder
There is no mainstream political will or interest in State Reform or Constitutional Reform to enshrine disability rights or equality rights for citizens in to our British Constitution.
THE DISABILITY COMMUNITY NEED TO CAMPAIGN FOR STATE AND CONSTITUTIONAL REFORM.
https://t.co/2AFJaCOllH download State Reform and Disability for the PDF Version or iBook version https://itun.es/gb/TZ4l5.l
The disability community needs to develop collaborative models of disability discrimination litigation market services owned by community activism or organisation in the face of cuts to legal aid and increased fees for bring disability discrimination litigation. I am researching an overarching paper on the topic and looking for thinkers, entrepreneurs, philanthropists, crowd founders, charities, disability legal firms and disability barristers to help create a case for parliamentary support.
Finding affordable disability solicitors and counsel is a difficult job on both the part of the claimant and litigator or advocate. The cases are often complex, long and costly.
Since the introduction of the Disability Discrimination Act 1995 and then the consolidation of disability discrimination legislation into the Equality Act 2010, there is still an emerging need to develop the legal sector which provides a functioning market for disability related legal services. The issues of disability are of course cross-cutting such as welfare, housing, services, premises, employment, participation in public life and representation of the disability community as equal stakeholders across the public sector service and it’s delivery functions.
According to the Office of Disability Issues (ODI), 19.7% of the UK adult population that being 11 million persons live with an impairment or health issue amounting to a statutory disability, but members of the community with a disability are highly unlikely to be represented with any degree equity in a broad range of employment, community or public life: councillors, members of parliament, public appointments, judiciary, NHS trusts, health boards in the devolved parliaments, public spending programmes, or civil service. It’s a muted point generally in the media and there is passive acceptance that under representation of disabled persons in public life is a consequence of the kind the of society that that the remaining 83.3% of the community wishes to live. Much the same history of race and gender equality repeating itself.
The rights and enforcement of those entitlements are further undermined by the recent changes to Employment Tribunals to introduce fees for bringing claims for unlawful disability discrimination. Some assessments say that the reduction of disability discrimination claims have fallen since this change from this policy and practice by between 52% and 78%. There continues to be an historic link between poverty and disability which bares out in the huge decline in protection sought from the courts. The change in policy and the well established link between poverty, unemployment and disability in fact renders the advances made by the Equality Act 2010 and it’s predecessor the Disability Discrimination Act relatively obsolete on affordability grounds. There is no public funding for bringing disability discrimination cases. The situation is of course different in USA and some Northern European countries, Scotland has made a little progress in providing legal help for preparing litigation at Employment Tribunals but there is no publicly funded legal representation. Disability litigation is won on strength and merits of argument. Legal representation is the only moral and ethical way to enforce a disabled persons rights.
As Andrew Hogan points out in his blog there is an emerging market for litigating disability discrimination. Mr. Hogan points out that new business models and disability claims show promising potential to develop county court tort actions or high court tort actions, or high court judicial review in the field of disability discrimination. His work includes claims brought for disabled persons accessing buses, trains, local authority services, NHS trusts, Central Goverment Departments and universities. It demonstrates the potential for increasing the disability litigation market sector following the reductions in publicly funded assistance and the effects of the Jackson reforms as discussed by the Law Society.
In fact, a legal firm Unity-Law are a team of specialist Disability Discrimination and occupational disease lawyers, dedicated to helping you achieve the best possible outcome for your legal case. We particularly note “Our personal approach has led us to win a number legal industry awards which recognise our involvement in leading cases and ground-breaking disability rights campaign work. ”
There a number of barristers specialising in disability discrimination claims with direct access arrangements. You may also need to consider instructing a solicitor to help with the litigation but the barrister can give you advise and you proceed with stages of litigation yourself. There are funding issues to resolve. You need to engage a barrister directly on the issues of funding.
The following barristers specialise in disability discrimination claims:
Spencer Keen is a barrister specialising in disability discrimination at Old Square Chambers
Matthew Purchase is a barrister specialising in disability discrimination at Matrix Chambers.
Elizabeth George is a barrister specialising in discrimination at Leigh Day
Disability Counsel are a group of barristers who specialise in disability discrimination
The charitable and social enterprise Disability Discrimnation legal sector is generally under funded and over subscribed. This includes charities such as the Disability Law Service, the Bar Pro Bono Unit, the Free Representation Unit and Law Works. The RNIB provides a small legal team dealing with disability discrimination matters arising from visual impairment. There is also the Law Centre Network. Charitable and public funding severely restrict the extent of any help these enterprises can provide.
Disabled law graduates wishing to pursue a career as a barrister or solicitor are substantially disadvantaged in accessing training as a barrister’s pupil and or accessing training contracts to qualify as a solicitor. A disabled law graduate wishing to pursue a career as a barrister has no other pathway to obtain the required competency and knowlege requirements of the Bar Standards Board. Successive governments have attempted to open up the legal training market to increase access to the Bar and subsequent legislation allowed for training to get to the commercial bar using a Bar Standards. Board approved alternative training organisation. No such routes exist and the access to pupilages are very far and few between.
However, the Law Society has recognised the potential of the charitable and social enterprise sector to engaged law graduate is trainng which can lead to their eventual qualification as a solicitor. Careers can then be pursued in the social enterprise sector or transferred to the private or public sector. There are no equivalent mechanisms to obtain qualification as a practicing barrister.
The legal services market has changed with some law firms and barristers operating from the same commercial entity. This brings future opportunities and Elizabeth George at Leigh Day is a positive example.
Strategic Opportunity for Disability Run Litigation Services
Community Interest Companies (CIC)
The Equality Advisory Support Service (EASS) was the first discrimination advisory community interest company set up which provides free advise and support disabled persons facing discrimination. A community interest company requires that the assets of the company are locked in the community it serves and it has to fulfil its community interest test. Community Interest Companies have an independent regulator.
The Creation of a Disability Discriminaton Law Service Community Interest Company
Andrew Hogan‘s analysis of the emerging disability discrimination litigation market seems to be logically signficant. More houses are being built to a poorer standard. The Government are moving 2 million disabled persons from long term sickness benefit to work without any supporting social, legal or employment infrastructure to cater for individual bespoke needs. More public transport facilities are being built and lessons of accessibility are simply never learned. According to the ODI the disabled population is growing by 100,000 per year which will increase litigation year on year in housing, employment, welfare, transport, public authority services, education, and the NHS. We know that 11.7 million people are statutory disabled in the UK and we know that there is no underlying strategic legal service market to enforce disability rights under the Equality Act.
The regulators of the Legal Profession: the Law Society and The Bar Council need to be persuaded that in the longer term more community interest companies will want to be set up which competes with the traditional network of chambers and law firms to create a cost effective legal services market for litigating disability discrimination claims. The kind of models described by Hogan et al provide exactly the rationale for allowing the creation of a Disability Discrimination Law Community Interest Company run by disabled persons busines persons, financiers, social enterprises or philanthropy; and the like employing disabled barristers or solicitors to litigate in the disability community or public interest. This innovative form of social enterprise could quite easily be approved by the Bar Standards Board as an alternative training organisation to enable many more disabled law graduates to qualify in the profession for the public good.
Community Interest Companies can make profits and are regulated. The must have asset locks and operate in the community interest. They are overseen by the CIC regulator. The legal professional standards would remain. CICs can obtain private capital, borrow, pay salaries, pay dividends, float on the stock market, receive charitable donations, philanthropic investment, local authority funding and public funding. Two signficant differences are that the assets accumulated by the CIC will be locked into the disability community it serves to fulfil its community interest objectives principally to provide advice and representation at an affordable cost to the disability community. Secondly, there will be strategic value to development and performance of disability discrimination litigation and a competitive market against the relatively fixed market of chambers and law firms proving a Cinderella disability litigation service.. There would also likely follow a restructuring of the social and charitable enterprise sector providing legal help . Lastly, as well seeking new innovative funding models, there would be opportunities to charge basic operating fees for clients much below market rates along the lines of Stephenson Solicitors albeit on a structurally different basis to cover basic operation costs. In other words disabled barristers or solicitors basic salaries would be paid to enable them to litigate higher volumes of work and rewarded on the merits of their success through the traditional cost or compensation recovery. Finally, there is no current market concept for mutuality disability discrimination insurance which could be devised with a community interest company product along side traditional event or costs insurance.
The disability discrimination litigation market place
Interchangeability of jurisdiction of the Employment Tribunal Claim and Claims issued at County Courts or the High Court for claims under tort or Judicial Review at the High Court. Employment Trubunal claims can include a head of damage for injury to health arising from the conduct of disability discrimination or a failure in that duty which causes injury. In the alternative, can such claims be brought at the County or High Court as personal injury claims with duties owed in tort, statutory duties or other common law. Additionally, to what extent can can employment related disability discrimination claims have jurisdiction in the County or High court under section 149 of the Equality Act either as a specific remedy or Judicial Review. Does further changes need to be made to the Equality Act 2010 to develop the disability discrimination market, to enable cross jurisdiction claims and engage injury to health claims identified in Employment Trubunal Claims in a jurisdiction that enables access to Conditional Funding Arrangements, costs insurance protection and the development of forms of mutuality insurance that (I) enables a disability discrimination litigation insurance product to be market developed, offered and subscribed to increase enforcement of rights under the Equality Act; (ii) to benefit from the Jackson Reforms and use of injury to health head of damage as a basis of constituting disability discrimination claims in other jurisdictions which enables forms of mutuality insurance as described or with broader ranges of legal service funding based on successful recovery of costs and risk-bases earnings from compensation.
The Office of Disability Issues say there is a disability discrimination market place of 11.8 million people of which 5.2m people are of working age, families have 1.1m disabled children at school and 5m over the age of 65. 2.6m of those disabled persons are in work or in work claiming benefits and the other 2.6m people claim welfare benefits. The welfare reform programme will lead to a reduction of people claiming disability related employment income benefit reduce by 65% in the next 5 years. This will means that around 1.4m disabled person will be expected to engage in work or claim unemployment benefit. The abolition of disability living allowance and replacement with personal independence payment is likely to reduce the 3m disabled persons claiming benefit over a period of 10 years to around 1.5m on the basis of only 40% of existing DLA qualifying claims are being equivalicated in the decisions of personal independence payments claims so far.
Legal aid has been withdrawn for welfare claims advise and representation.
A reform of the way disability welfare legal services and disability discrimination litigation can be achieved by a two way strategy; (I) by legislation to create, structure and regulate the market; (ii) by the disability community enterprise sector devising appropriate legal service structure and offering innovate mutuality insurance products that provide legal cover for:
Making claims for disability related benefits
Providing disability related legal advise services
Providing legal advice representation for appeals on disability related welfare decisions
Providing disability advice and professional recommendations of reasonable adjustments
Providing disability discrimination for employment, education, services etc. disputes early intervention advise and advocacy
Making claims for disability discrimination litigation Providing disability litigation legal advise services
Providing disability litigation end to end claim and customer relationship management
Providing disability litigation legal representation services
Provide mutuality based legal costs and events insurance to limit damages
Provide disability litigation professional services functions including experts
Operate the mutuality principle as a community interest where the product assets are locked in the disability community for future generations but legal professionals can continue to be paid at basic, insurance, market rates or mutuality insurance rates based on a mixed-fee orientation policy. The policy to comprise of an element of contract payment rate for work from the mutuality policy, recovery of costs in the courts, enhancement of income based on risk and success and a level of operational costs recovery from policy excesses depending on the nature and extent of the work.
The guiding principle disabled litigants for a disability driven Disability Discrimination Litigation Community Interest Company, is that if you use the scheme, part of your damages has to be paid back into the Community in order that venture can survive, grow and deliver strategic or landmark disability cases.
Further work: Just a start
A working research paper will be produced in due course based on a range of mutuality models, comparative historical funding issues in other community problems arising from poverty and community interest principals which specifically develop the disability law market. Legislative analysis is required to better define the regulatory framework, increase flexibility in the legal profession for developing this market and to learn from other jurisdictions on how to limit the liabilities of a social legal market which is either provided by State funding or where a jurisdiction accepts that for the market to function properly then stakeholder exposure to liability has to be signficantly constrained reasonable social financing rather than the excesses of the corporate legal sector profitability much the same as legal aid recovery of costs. In any of the models used there would be an increase in those insured, increase in litigation and consequential social mobility, and market improvement for disability discrimination litigation practice and performance.
A work in progress. Any further thoughts are welcome.