Disability discrimination claims – avoiding being ambushed
DR v London Borough of Croydon 2010 UKUT 387 AAC
The above appeal to the Upper Tribunal relates a claim made under the Disability Discrimination Act 1995 (now replaced by the Equality Act 2010). The tribunal essentially got into a muddle about how to interpret the definition of disability contained in the statute.
With regards to statutory interpretation, it is not clear that it says much we don’t know already.
Perhaps more interesting is what is contained in paragraphs 29 and 30:
29. The tribunal, of course, has an inquisitorial function and is quite entitled to take the disability issue as a preliminary point. It may well be a sensible case management decision to do so. However, I simply note that in this case the tribunal’s detailed pre-hearing case management directions made no reference to the disability question. There was nothing in those directions to alert the parties to the need to bring forward evidence or seek to call witnesses on this issue. Prior to the hearing, the local authority does not appear to have contested the argument that C was disabled, although of course it did resist the argument that it had discriminated against C.
30. I simply note that there are potential natural justice issues here. The tribunal should avoid any risk that the parties, and particularly the parent, are ambushed by a significant new point being taken at the hearing (see further CP v M Technology School (SEN)  UKUT 314 (AAC)).
This refers to the fact that the local authority only brought up the issue of the existence or otherwise of the child coming within the Act at the day of the hearing. The Tribunal in its wisdom hadn’t addressed the matter beforehand, though they seem to have addressed every other issue.
Paragraph 30 will assist any parents who are ambushed on the day hearing with submissions from the respondent that their child’s disability is such that they are not afforded any protection from the anti disability discrimination legislation. In such cases, an unprepared parent may ask for an adjournment to prepare their case and may also consider making an application for costs on the grounds that the issue had not be challenged beforehand.
Earlier articles deal with the definition of disability within the Equality Act 2010. It is not usually too difficulty to work out whether a disability complies with the definition in the statute. When making a claim of disability discrimination it is worth stating that, in your opinion, the child in question does have one or more statutory disabilities and, if this is an issue, asking the Tribunal to rule on the matter before the hearing.
The judgement in this case can be found HERE.