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Finnigan v Northumbria Police

Court of Appeal, October 2013
www.bailii.org/ew/cases/EWCA/Civ/2013/1191.html

The Court of Appeal dismissed a claim for reasonable adjustments by a deaf person whose house was searched by the police. He argued they should have brought a sign language interpreter. The Court of Appeal upheld the decision that in this particular case it had been possible to establish effective communication, so there was no claim. However, as regards what adjustments were required, the Court of Appeal critisised the lower court for looking at the individual claimant rather than adjustments for deaf people generally. The reasonable adjustment duty (as regards service providers and public functions) was concerned with changes to a practice, policy or procedure (PPP) applicable to a category of disabled persons, rather than changes applied to an individual on an ad hoc basis.

The police had executed search warrants on the claimant. The claimant was profoundly deaf, and argue there was a failure to make reasonanble adjustments because the searches were carried out without a British Sign Language (BSL) interpreter.

Two of the officers had had previous dealings with the claimant and were satsified they could achieve a basis level of communication with the claimant with the help of his wife, without a BSL interpreter. The police also argued that a sale of cannabis by the claimant to undercover police officers at his home showed that effective communication was possible.

The claim was under both the DDA and the Equality Act as the searches were both before and after 1st October 2010 when the latter took effect. However, it was accepted there was no difference between the two pieces of legislation for present purposes.

The County Court dismissed the claim, holding that effective communication had been possible here, and the claimant received a service from the police which was as close as reasonably practicable to the standard offered to the public at large.

Court of Appeal judgment

The Court of Appeal dismissed the appeal - there had been no breach of the duty to make reasonable adjustments because even if there was a failure to make an adjustment generally, it did not cause a detriment to the claimant since effective communication was possible in his case. He therefore had not claim.

However the Court of Appeal critisised some aspects of the County Court judgment:

What was the PPP?

What was the practice, policy or procedure that put (or didn't put) disabled people at a substantial disadvantage, so as to give rise (or not) to the reasonable adjustment duty?

The County Court had said the PPP was the requirement that police when executing search warrants etc attempt to establish effective communication. It held the police here had achieved effective communication so there was no detriment to the claimant. The County Court also considered the case on the alternative footing - as argued by the claimant - that the PPP was communicating with offenders by way of spoken English. On this alternative basis, the PPP would cause a detriment to the claimant and the police would have to make reasonable adjustments to ensure effective communication so far as reasonably practicable. What was required would vary with the circumstances. However a BSL interpreter was not required in this case at least, where effective communication was possible without one.

The Court of Appeal critisised the County Court for defining the PPP as 'effective communication'. This conflated the aim with the means of achieving it. It was difficult to see such a policy could ever be discriminatory - but PPP includes practices and procedures as well as policies. The PPP is the base position before adjustments are made to accommodate disabilities. By definition the PPP does not include the adjustments, such as use of BSL interpreters, use of lip reading and sign language by trained police officers. The County Court was therefore right to accept the alternative submission that the PPP included communicating in spoken English during the search. The judge was entitle to find that would be the usual practice of Northumbria police.

Should consider disabled people as a class, rather than the individual claimant

The County Court was in error so far as it may have considered whether the police failed to make adjustments by reference to the needs of the claimant, rather than the needs of deaf persons as a class (Roads v Central Trains). It was not in dispute that the duty to make reasonable adjustments is anticipatory, owed to disabled persons at large in advance of an individual disabled person comming within the purview of the public authority (or service provider). The Court of Appeal continued:

"33. It follows that the Chief Constable was obliged to make reasonable adjustments to her PPP of conducting searches in spoken English so that it did not have a detrimental effect on deaf persons. It is clear that this duty could not be discharged by treating everyone as individuals and adopting communication styles to suit the circumstances of the particular case on an ad hoc basis. The anticipatory nature of the duty is inimical to the idea that reasonable adjustments may be made by deciding on an individual basis to conduct a search with or without a BSL interpreter in attendance or on standby according to exigencies of the particular situation."

Like any other public authority, the police were under a duty to take such steps as are reasonable to change their PPPs so as to eliminate or reduce their detrimental effect on deaf persons. One way of doing this in relation to the PPP of officers' communicating in spoken English would be for a BSL interpreter to be in attendance or on standby every time there is a search of premises occupied by a person known or believed to be deaf. But there may be other reasonable steps that could be taken to achieve that result: Effective communication may be possible with some classes of deaf persons by other means, for example, with the assistance of officers skilled in lip-reading and sign language. However:

"It is important, however, to keep in mind the distinction between (anticipatory) changes to a PPP which are applicable to a category or sub-category of disabled persons and changes which are applied to individual disabled persons on an ad hoc basis. The duty to adjust a PPP is to be judged by reference to the former, and not the latter."

In this case, the County Court's decision that there was no breach of the duty to make reasonable adjustments could not be upheld. There had been no finding as to what adjustment the police made to deal with the detriment caused to deaf persons as a class by the PPP through its officers communicating in spoken English during their searches. The judge merely held that no adjustment was required. But that was because he found as a fact that effective communication was achieved with the claimant as an individual.

Comment

The case was decided partly under the DDA and partly under the Equality Act, since the searches were partly before and partly after 1st October 2010. I think the decision was probably wrong to go on the basis that the Equality Act position is the same as the DDA. Unlike the DDA, the Equality Act does not say the claimant must suffer a detriment where the case relates to public authority functions, only that there must be a failure to make the reasonable adjustment 'in relation to' the claimant (s.21(2) EqA) - see MM & DM v Secretary of State for Work and Pensions. EqA s.29(2)(c) requires a detriment in relation to services to the public, but s.29(6) does not in relation to public authority functions. However, counsel accepted that the Equality Act position was the same as under the DDA, so the court did not consider the position.

This case upholds the anticipatory nature of the reasonable adjustment duty for public authorities, but may imply that this can also limit the scope of the duty, in that ad hoc adjustments are not required. The Services Code (para 7.26) does say that once a service provider has become aware of the requirements of a particular disabled person who uses or seeks to use its services, it might then be reasonable for the service provider to take a particular step to meet them, especially where a disabled person has pointed out the difficulty they face in accessing services, or has suggested a reasonable solution to the difficulty. What approach the courts will take here is unclear.


Public authority functions
Services: reasonable adjustments

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