Ladd v London Borough of Bromley

For direct discrimination under section 21D(1) of the Disability Discrimination Act 1995, the claimant must establish less favourable treatment and an appropriate comparator. A disabled applicant who says disability prevents attendance cannot simply be compared with an applicant able to attend.

The reasonable-adjustment duty in section 21E concerns disabled persons as a group, not an isolated individual. In assessing reasonable steps, an authority may consider fraud prevention, official guidance, economical administration and the practical accessibility of assessment arrangements. An exceptional departure from a general policy does not itself establish discrimination.

The claimant had previously held a Blue Badge and applied to the defendant local authority for a replacement after moving borough. The council’s policy required new applicants to undergo an independent mobility assessment at its civic centre. The claimant refused to attend, and the council returned her application.

After a pre-action letter threatening judicial review, the council exceptionally agreed to conduct a home assessment. The assessment took place and a Blue Badge was issued that day. The claimant then brought County Court proceedings alleging disability discrimination under the Disability Discrimination Act 1995 and breach of Article 8 rights under the Human Rights Act 1998. District Judge Silverman awarded £5,000 for discrimination but rejected the human-rights claim. The appeal concerned only discrimination. The central issues were whether the assessment requirement constituted less favourable treatment and whether the policy made it unreasonably difficult for disabled persons to obtain the benefit.

Appeal allowed. Lord Justice Davis held, and Lord Justice Treacy agreed, that the finding of disability discrimination could not stand.

1. The Respondent’s Notice was unsatisfactory and did not identify the points relied upon. The respondent could not advance a case that had not been pleaded or argued below. The council had required an assessment at the civic centre; it had not insisted on a home assessment. The later home visit was an exceptional concession made after the claimant refused to attend and legal proceedings were threatened.
2. Under section 21D(1) of the Disability Discrimination Act 1995, there was no identifiable less favourable treatment. The pleaded comparator was also misconceived. Applying the principles in Lewisham BC v Malcolm [2008] 1 AC 1399, the relevant comparison would have been with an applicant unable to attend for a reason unrelated to disability, not simply with an applicant able to attend. No evidence showed that such applicants were treated differently; the council’s policy applied generally.
3. The claim under sections 21D(2) and 21E failed. Section 21E(1) addresses disadvantage to disabled persons in the plural and therefore requires some form of group or class. The claimant’s circumstances were unique, and there was no evidence that comparable applicants experienced unreasonable difficulty. Roads v Central Trains Limited [2004] EWCA Civ 1541 did not justify inferring group impact from one individual’s circumstances. Its facts and context were materially different.
4. In assessing reasonable steps, the council was entitled to consider the risk of Blue Badge fraud, the rationale of Department for Transport guidance, workable and economical administration, and the accessibility of the assessment centre. Reliance on a general practitioner’s letter or a door-to-door identity check was not shown to be a reasonable adjustment. The council had in any event adjusted its policy by conducting the home assessment and issuing the badge.

The discrimination finding was set aside. The court allowed the appeal and reserved costs and consequential matters for further argument.

• Court of Appeal (Civil Division): In [2012] EWCA Civ 1586, allowed the council’s appeal and set aside the finding of disability discrimination.
• Central London Civil Justice Centre, District Judge Silverman: By reserved judgment dated 14 November 2011, allowed the disability-discrimination claim, awarded £5,000 damages and costs, and rejected the claim under the Human Rights Act 1998.