Finnigan v Chief Constable of Northumbria Police

A public authority’s duty to make reasonable adjustments is anticipatory and owed to disabled persons as a class. The authority must identify its ordinary provision, criterion or practice before considering adjustments. It cannot discharge the duty solely through ad hoc responses to each individual.

Adjustments may address the needs of categories or sub-categories of disabled persons. A British Sign Language interpreter is not invariably required when police search premises occupied by a deaf person, because other systematic measures may secure effective communication. Liability nevertheless requires the failure to make an adjustment to cause the individual claimant the relevant detriment. Where effective communication occurred despite the failure, the discrimination claim cannot succeed.

A profoundly deaf occupier alleged disability discrimination after police conducted three lawful searches of his home without a British Sign Language interpreter. The first search was governed by the Disability Discrimination Act 1995; the later searches were governed by the Equality Act 2010.

His Honour Judge Walton dismissed the claim. He found that effective communication had occurred during two searches and that the occupier had deliberately prevented communication during the third. The judge treated the relevant practice, policy or procedure as an attempt to establish effective communication and assessed adjustments by reference to the claimant’s individual circumstances.

The appeal concerned the proper identification of the police practice and the anticipatory, class-based nature of the duty to make reasonable adjustments. It also raised whether the judge’s factual finding that the absence of an interpreter caused the claimant no detriment was fatal to the claim.

1. Appeal dismissed unanimously. The judge had misidentified the relevant practice, policy or procedure and had erred in approaching reasonable adjustments by reference to the claimant individually. His finding that the failure caused the claimant no detriment nevertheless defeated the claim.

2. A practice, policy or procedure is the base position before disability-related adjustments are made. It includes the ordinary practices and procedures applying to everyone but excludes measures adopted to alleviate a disabled person’s disadvantage. The judge had wrongly conflated the police objective of effective communication with the means used to achieve it. The relevant practice was communication in spoken English during searches.

3. The duty under section 21E of the Disability Discrimination Act 1995 was anticipatory and owed to deaf persons as a class. It could not be discharged merely by choosing communication methods for each deaf person on an ad hoc basis. The court applied Roads v Central Trains Ltd [2004] EWCA Civ 1541. The public authority had to consider in advance the features impeding people with particular kinds of disability.

4. Reasonable anticipatory adjustments could be directed to a category or sub-category of deaf persons. An interpreter in attendance or on standby was one possible adjustment, but it was not necessarily the only reasonable solution. Systematic use of officers skilled in lip-reading or sign language might permit effective communication with some classes of deaf persons. The evidence did not establish what anticipatory adjustment the Chief Constable had made or ought reasonably to have made.

5. Once a claimant identifies a potential reasonable adjustment, the burden lies on the defendant to show that it was not reasonable. The Chief Constable’s case faced considerable difficulty on that issue. Public authorities should adduce evidence identifying both their relevant practice and the anticipatory adjustments made to alleviate its detrimental effects.

6. The statutory analysis also required the claimant to establish that the failure to adjust had the relevant adverse effect upon him. The trial judge was entitled to find that effective communication occurred during both searches in which the claimant co-operated. The absence of an interpreter therefore caused him no detriment. That factual finding was fatal notwithstanding the errors concerning the scope of the adjustment duty.

1. Court of Appeal (Civil Division): In Finnigan v Chief Constable of Northumbria Police [2013] EWCA Civ 1191, the court unanimously dismissed the appeal. It identified errors in the judge’s formulation of the relevant practice and his treatment of the anticipatory duty, but upheld the result because the failure caused the claimant no detriment.
2. Newcastle-upon-Tyne County Court: His Honour Judge Walton dismissed the disability discrimination claim. No citation for that decision is stated in the judgment.