Ladd v London Borough of Bromley

The Court of Appeal allowed the council's appeal against a finding of disability discrimination. The key legal issues were whether the council's requirement for an independent assessment of Blue Badge applicants amounted to less favourable treatment under section 21D(1) of the Disability Discrimination Act 1995 or amounted to a practice, policy or procedure falling within section 21E (and thus a breach under section 21D(2)). The court held that no proper comparator or class had been identified for section 21D(1) and that section 21E requires evidence of a practice that affects disabled persons as a class; the trial evidence showed the claimant's situation was unique and there was no such class-based effect.

The court further held the council's policy was rationally grounded in Department for Transport guidance and the need to deter fraud; the authority had in any event made an exceptional home visit for assessment in this case. For these reasons the District Judge's finding of unlawful discrimination could not be sustained.

Background and parties: The claimant, Mrs Ladd, a 91-year-old polio survivor who had previously held a Blue Badge issued by Lewisham, applied to the London Borough of Bromley for a replacement Blue Badge after moving into Bromley. Bromley operated a policy of requiring assessed eligibility (normally at an assessment centre) in line with Department for Transport guidance. When Mrs Ladd refused to attend the Civic Centre she threatened judicial review and the council exceptionally arranged a home assessment; after the assessment a Blue Badge was issued. She nevertheless sued for discrimination under the Disability Discrimination Act 1995 and for breach of Article 8; the county court accepted the discrimination claim and awarded damages of 5,000, but rejected the human rights claim.

Procedural posture and relief sought: The defendant council obtained permission to appeal. The appeal was limited to the disability discrimination claim. The claimant had sought damages and costs (including pre-action costs) in the county court and relied on section 21D(1) and section 21D(2) (read with section 21E) of the 1995 Act.

Issues before the Court of Appeal: (i) whether the council's conduct constituted "less favourable treatment" for the purposes of section 21D(1) and, if so, whether a proper comparator was identified; (ii) whether the council's policy amounted to a practice, policy or procedure under section 21E thereby requiring reasonable steps to change it under section 21D(2); and (iii) whether any failure was unjustified having regard to the council's legitimate aims (including deterrence of fraud and reliance on DfT guidance) and the fact the council made a home visit in this case.

Court's reasoning: The court found the county court's reasoning unclear and insufficiently grounded in the statutory tests. On section 21D(1) the claimant had not identified an appropriate comparator; the comparison she pleaded (a person able to attend the Civic Centre) did not fit the comparator principles drawn from Lewisham BC v Malcolm and there was no evidence of others treated differently. On section 21E the court emphasised that the provision is directed at group or class effects; there was no evidence or finding that the policy made it impossible or unreasonably difficult for a class of disabled applicants to obtain badges. The council's policy was consistent with Department for Transport guidance and justified by the need to deter fraud and to maintain a workable administrative scheme. The authority had also made an exceptional reasonable adjustment by conducting a home assessment. For these reasons the Court of Appeal concluded the discrimination finding could not be sustained and allowed the appeal.

Appeal allowed. The Court of Appeal concluded that the District Judge's finding of discrimination under the Disability Discrimination Act 1995 could not be sustained: no appropriate comparator or class was identified for the section 21D(1)/21D(2) claims, the claimant's circumstances were effectively unique, and the council's policy (consistent with Department for Transport guidance and aimed at fraud prevention) was a justified and reasonable administrative measure; the council had in any event made an exceptional home assessment.

Appeal from a reserved judgment of District Judge Silverman at the Central London County Court (judgment handed down 14 November 2011) granting damages of 5,000 for disability discrimination; permission to appeal was granted by Rafferty LJ. The Court of Appeal allowed the defendant's appeal on 4 October 2012.