OUR GUIDE
Legal Services Agency Launches Disability Discrimination Guide
The Disability and Social Justice Project provides specialist legal advice, assistance, and representation to disabled people throughout Scotland. It has been set up to address the lack of legal provision for disabled people in Scotland. This is important because disabled people are more likely than non-disabled people to be involved in civil disputes.
We receive enquiries from disabled people who are seeking advice on their rights after having experienced discrimination from service providers. Our work with disabled organisations and charities has highlighted that many disabled people are not aware of their rights in relation to service providers, and that they are unsure how to make a complaint or bring a claim. One example of this is that some of the enquiries that we receive are out with the 6-month time limit to make a claim.
We hope that our guide will help to address these problems faced by disabled people.
Our Guide
Our guide provides you with information and practical tips on making a complaint if you are disabled and have experienced disability discrimination from a service provider. This can be direct or indirect discrimination, harassment, victimisation, or a failure to make reasonable adjustments.
This guide will also provide you with information about making a legal claim. If you are thinking about making a legal claim, we recommend that you seek independent legal advice.
WHY MAKE A CLAIM
Experience demonstrates that one person can make a difference for the many. If you have had to complain about the way you have been treated due to your disability, there will likely be many others who have also had to do the same. If you can persuade a service provider either through a complaint or legal claim to change or improve the way it delivers its service, this could benefit others who have been in a similar position and help to promote access to justice for disabled people.
If you succeed in a claim, you may receive compensation. The amount of money you could be awarded will vary depending on the circumstances.
Remember - the court cannot order an apology. The court can determine right or wrong but cannot make anyone apologise. It can be something we ask for, however.
CASE STUDIES
Mrs W, a deafblind client, was refused service in a cafe because she had a service dog. A worker in the cafe told Mrs W and her guide communicator to leave the premises because she was allergic to dogs. This was discrimination under the Equality Act 2010. Mrs W was hurt and embarrassed by the way in which she was told to leave. After attempts to communicate with the cafe were unsuccessful, LSA were contacted by RNIB and Deafblind Scotland on behalf of the client. LSA were able to identify the cafe's owners and successfully made a claim in the Sheriff Court for compensation for a breach of the Equality Act 2010.
Mrs W had made the claim to highlight the illegality of refusing a guide dog entry into premises and how that refusal can impact on people’s lives. She sought an apology for the way she was treated. After the claim in the Sheriff Court was successful, LSA was able to contact the worker who apologised to Mrs W. Mrs W was happy to accept the apology and did not request that the compensation was paid.
Ms Y is a wheelchair user with decreased mobility. Her health condition requires her to carry oxygen cylinders. Ms Y booked a taxi with a company that she had been using for many years and was aware of her disabilities. Following a period of waiting for the taxi to arrive, Ms Y was informed the taxi driver was exempt from picking up wheelchair passengers.
Ms Y then had to wait another hour for a taxi. Her oxygen cylinders had a limited supply; if the waiting time had been longer, she may have had to call an ambulance.
Ms Y complained to the taxi company and was told that the wheelchair exemption was to do with loading and unloading passengers. However, Ms Y can get in and out of her chair, and on this occasion, she also had her son with her to help. She was told by the taxi company that they would investigate but they did not reply so Ms Y approached LSA for help.
LSA provided Ms Y with legal advice regarding disability discrimination under the Equality Act 2010. LSA wrote to the taxi company. The taxi company apologised and provided taxi vouchers as a gesture of goodwill. After further negotiation by LSA, the company offered a higher value of vouchers.
Mr Z is legally blind. Due to his disability, he is unable to use a supermarket’s online services. When he phoned his local supermarket to check the availability of certain goods he was told to use their website. He is unable to use the website and complained, asking for an adjustment to be made. He did not receive a full response from the supermarket.
LSA advised the client that the supermarket may be in breach of its duty not to discriminate under the Equality Act 2010, particularly in relation to its duty to make reasonable adjustments.
LSA submitted a complaint to the supermarket. After the complaint was lodged, changes to practice on the phoneline were made. The client checked this and found that he was provided with information and support and could check stock levels using the phoneline.
What the law says about disability discrimination in relation to service providers
What the law says about disability discrimination in relation to service providers
The Equality Act 2010 makes disability discrimination unlawful. It also legally requires service providers to consider the needs of disabled customers and adapt their services to take account of disabled people’s needs.
Examples of service providers include: supermarkets, local authorities and government departments, bus, rail and taxi companies.
The Equality Act means that service providers:
- Must take steps to remove barriers to the services they offer.
- Must not treat disabled people less favourably because of their disability or long-term health condition.
- Must not harass disabled people.
Key Terms for disability discrimination in relation to service providers
Some of these terms also apply to other types of discrimination (for example, sex discrimination) and do not only apply to service providers. The following definitions are about disability discrimination in relation to service providers only.
Disability
The Equality Act 2010 explains that a person has a disability if they have a physical or mental condition which has a substantial and long-term effect on their ability to carry out normal day-to-day activities.
If you are diagnosed with HIV, cancer or multiple sclerosis, you will automatically be considered as disabled under this definition.
You can find out more about the definition of disability in this short video, made by the Equality and Human Rights Commission.
types of discrimination
Treating a disabled person less favourably than someone in the same situation who is not disabled.
Rules or polices which apply to everyone but which in practice place disabled people in an unfair position. This type of discrimination can be justified if the service provider can show there is a good reason for the rule of policy.
Behaviour which causes a disabled person to feel frightened, degraded, humiliated or offended.
Unfair treatment directed at a disabled person because they have made a complaint about disability discrimination or harassment.
Unfair treatment directed at a disabled person without good reason because of something connected to their disability.
Service providers have a duty to make reasonable adjustments so that a disabled person can access their service.
More information and examples of the different types of discrimination can be found here:
What counts as disability discrimination - Citizens Advice Scotland
I think I have experienced disability discrimination, what can I do now?
You can start by making a complaint to the service provider. This is something you can do yourself; you do not need a solicitor to write this letter.
Remember, if you plan to make a claim in the court, you must do so within 6 months from the act of discrimination. If you are close to this time limit, you may wish to immediately seek legal advice, rather than starting with a complaint letter.
Advice for writing a complaint letter
The first step is to find out who you need to write your complaint letter to. You can normally find this on the service provider’s website.
We recommend that you include the following in your complaint letter:
Briefly explain:
- the details of your disability
- how your disability impacts your ability to carry out normal day-to-day activities
Be as specific as possible. Try to include:
- Date(s) the discrimination occurred
- Time(s) the discrimination occurred
- Who you were with
- The names/job titles of people who were present from the service provider
If your complaint concerns being prevented access to a venue, and you wish to take your claim to court, you may need to prove that you were at that venue. In anticipation of this, you can also use the letter as an opportunity to ask for CCTV footage and provide proof (for example tickets) to show that you were there.
Explain in as much detail as you can what happened. The following questions may help you when writing this section:
- Was there a physical feature that prevented access to the service provider’s building?
- Did you ask for help with something but were refused assistance?
- Did you ask for a British Sign Language interpreter but were refused?
- Were you not provided with information in an accessible format?
- Were you refused access to a service or building because of your guide dog?
- Were you treated differently because of your disability?
Explain in as much detail as you can how the incident made you feel. Examples could include:
- inconvenience
- anxiety
- distress
- vulnerability
- loss of dignity
- delay
- embarrassment
- insult
- Harassment
Explain clearly what you want to see happen. There are no constraints on what you can ask for, but we recommend that you keep them realistic. This could include:
- An apology
- Change(s) in the way they offer their service and a specified timeframe in which you want the change(s) to take place
- Reimbursement
- Compensation
- Promise to consult with disabled people in the future
- Retraining staff
- Installation of a ramp, automatic door, larger signs or a hearing loop system
- Changes to a website to allow assistive technology to work
If you are complaining about a failure to make reasonable adjustments, it is helpful to explain what you think the service provider could do and explain why you think those changes would be reasonable.
Always include the date which you expect to receive a response by. This is normally 2 weeks, however, in more urgent situations this could be reduced.
Name of business that you are complaining about
Address:
Post Code:
Date:
Dear Sir/Madam
Re: Compensation Claim for Disability Discrimination
Name:
Dob:
Address:
I am writing to complain about an experience at your business on (Date) at (Location) and to ask you to make your service more accessible to disabled customers.
Information about my Disability
I am a disabled person within the meaning of section 6 of the Equality Act 2010. I am unable to walk because of (XXXX), and this means that I use a wheelchair to travel independently.
Events Giving Rise to this Complaint
On the 14th January 2022, I went to your supermarket at around 10:30am to buy some essentials. This shop had been chosen as it is local to me and on this morning, it was useful because it was on my route to work. I used my wheelchair and when I arrived at the shop l learned that there was no ramped access but there was a wheelchair buzzer. I rang the buzzer to signal the attention of staff, and a shop assistant responded. The member of staff explained that he believed there was a portable ramp to provide access but that he did not know where it was in the store. He said he would speak to the manager the following day.
The next evening, I returned to the store as requested. Again, I rang the buzzer to try to gain access to the store, presuming that the ramp would have been found and that I would now be able to enter. My partner had to enter the store to request that the General Manager attend, at which point the General Manager moved outside to tell me that there was no ramp, that there never had been and never would be because the Landlady of the property refused to allow ramps on her listed building. I was told that if I wanted to buy anything from the shop the staff could take my card or cash to complete the purchase on my behalf. I left, feeling very upset and powerless. I felt that my rights did not matter and that your staff could not assist me.
What I would like this complaint to achieve.
- A written apology;
- Installation of a ramp at the door entrance;
- Equality Act training for all customer facing staff;
- Independent Access Audits of each of your stores across Scotland;
- Ensure that all stores across Scotland are fully accessible to wheelchair users by (date);
- A specific complaints process for disabled customers;
- A proposal for compensation
I am happy to engage with you to explore alternative ways to resolve this dispute. However, I invite you to bear in mind the time constraints set out in the Equality Act 2010. If I do not hear from you by (date), or if you deny that you are in breach of the Equality Act then I plan to instruct lawyers and commence court proceedings. This will add in additional costs which would be unfortunate.
I look forward to hearing from you.
Yours sincerely,
What to do after submitting a complaint letter
If you are unsatisfied with the response (or receive no response at all) from your complaint letter you may consider escalating the complaint. You may also wish to consider taking legal action.
Considerations before taking legal action
Remember, if you plan to make a claim in the court, you must do so within 6 months from the act of discrimination.
If you are thinking about making a legal claim, it is important that you seek legal advice.
We have a dedicated team at Legal Services Agency (LSA) providing specialist legal advice, assistance, and representation to disabled people throughout Scotland. You can find information on how to contact us here.
You can also search for specialists using the Law Society of Scotland website.
Before your appointment, try to gather the information listed in the ‘Advice for writing a complaint letter’ section of this guide. This will help your legal advisor to provide you with advice.
Making a claim does not necessarily mean that you will have to go to court. Many cases settle. This means that an agreement is reached between both parties without the claim being heard in a court.
You may also wish to consider mediation as an alternative to going to court. In mediation, a conversation between you and the party you are making the claim against is facilitated by an impartial person (the mediator). Mediation allows both parties to find an agreed outcome to the claim and can provide opportunities for rebuilding relationships.
Making a claim can require a lot of time and energy. It is natural to find the process stressful and you may wish to consider this in relation to your personal circumstances before taking legal action.
Making a legal claim can be expensive. There is also possibility that, if you lose your case, you may have to pay the legal costs of the other party.
However, you may be eligible for legal aid. You can speak to your legal advisor about this.
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