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Discrimination in the Welfare Benefits system: compensation claims against DWP

2018-12-05 14:57:46

The Equality Act 2010 imposes obligations on service providers anyone who exercises public functions. This means that the Department of Work and Pensions has duties under the Act and must not discriminate against a person requiring or using the service or victimise or harass them.

Broadly speaking, these duties are owed to people requiring / using the service and who have the following protected characteristics; age (over 18’s), disability, gender reassignment, pregnancy and maternity, race, sex and sexual orientation. Each of these characteristics has a specific definition under the Act. For example, A person has a disability if he or she has a physical or mental impairment that has a substantial, long-term adverse effect on his/her ability to carry out normal day-to-day activities.

Unlawful conduct under the Act can include direct and indirect discrimination, discrimination arising from disability, the failure to make reasonable adjustments, victimisation and, for some characteristics, harassment.

For example, service providers and those exercising a public function have an anticipatory duty to make reasonable adjustments to provisions, criteria and practices (PCPs) (the arrangements) which put disabled people at a substantial disadvantage. This requires being proactive and thinking about the likely impact of PCPs. This could include changing an appointment to enable a disabled service user to make arrangements to travel with a supporter or carer.  Failure to make reasonable adjustments for disabled service users could be a form of discrimination.

Discrimination arising from disability occurs where a disabled person is treated unfavourably, (as opposed to less favourably) where this treatment is because of something arising in consequence of the disabled person’s disability, and where it cannot be shown that this treatment is objectively justified. For example, a service user may have difficulties completing on-line forms in consequence of a disability. Offering assistance to complete the form might be a reasonable adjustment. But refusing a claim or applying a sanction in these circumstances, could be argued as discrimination arising from disability if it cannot be shown to be a proportionate means of achieving a legitimate aim.

Remedies

The DWP has a compensation scheme for maladministration (where things have gone wrong).

In addition, it may be possible to claim compensation for discrimination if need be, through the Sheriff Court.

In general, there is a time limit for raising actions of six calendar months (less one day) from the date that the discrimination took place.

It is possible to seek an extension to the time limit, although this should be avoided.

What you can do for your clients?

LSA will be running a free discussion event, taking place on Tuesday, 22nd January 2019 at 2.30pm to 4.30pm at our offices at Fleming House, 134 Renfrew Street, Glasgow, G3 6ST.

The speakers will be Kirsti Nelson, Senior Associate, LSA, and Angus McIntosh, Principal Solicitor, Castlemilk Law Centre.

If you wish to attend this event, send an email to seminars@lsa.org.uk.   We will be running a formal training event in the late winter.

Alternatively, and as well, LSA is happy to receive referrals now of clients who have a protected characteristic and who have lost out as a result of some form of discrimination by the DWP in claiming their benefits:  particularly a failure to make reasonable adjustments.

We do not yet know how effective such claims will be, however, given the time limit, it is our view that referrals should be made speedily with necessary action taken as soon as possible, with the overall effectiveness of the action being assessed as the cases develop.

Referrals can be made to LSA’s Housing and General Court Department (Equalities team) by telephoning for an appointment on 0141 353 3354 or a client simply attending a drop-in surgery: 

·    Monday     10.00am to 1.00pm

·    Tuesday     10.00am to 1.00pm

·    Thursday   10.00am to 1.00pm and 4.00pm to 6.45pm

·    Friday        11.00am to 2.00pm    

In addition, there is a fast track homelessness drop-on every weekday 10.00am to 12 noon:  equalities issues relevant to homeless clients can be dealt with then as well.