Finnegan v Chief Constable of Northumbria Police

The Court of Appeal considered whether the Chief Constable breached duties under section 21B/21D/21E of the Disability Discrimination Act 1995 (and, in respect of later searches, section 20 of the Equality Act 2010) by failing to make reasonable adjustments to a public authority practice, policy or procedure (PPP) when executing search warrants at the home of a profoundly deaf man. The court held that the relevant PPP was the police practice of communicating in spoken English during searches and that the duty to make reasonable adjustments is anticipatory and owed to deaf persons as a class. The Master of the Rolls concluded that the judge below erred in approach by focusing on the policy of achieving effective communication rather than on the practice or procedure used to achieve it, and by assessing reasonable adjustments by reference to the individual claimant rather than to deaf persons as a class. Nonetheless, the appeal was dismissed because, on the facts found by the trial judge, no detriment resulted to the claimant during the searches in which he was not obstructive, so there was no actionable failure in respect of him.

Background and parties. The appellant, Mr Bryan Finnigan, is profoundly deaf. He brought proceedings alleging that Northumbria Police discriminated against him during three lawful home searches (31 March 2010, 8 February 2011 and 9 March 2011) by not providing a British Sign Language interpreter or other adjustments. The respondent was the Chief Constable of Northumbria Police. The case reached the Court of Appeal on appeal from Newcastle-upon-Tyne County Court (His Honour Judge Walton).

Nature of the claim and relief sought. The claim alleged breaches of section 21 of the Disability Discrimination Act 1995 (and section 20 of the Equality Act 2010 for the later searches): that the police failed to take reasonable steps to change a PPP which unreasonably disadvantaged deaf persons when executing search warrants. The remedy sought was a declaration and/or damages for unlawful discrimination.

Issues framed.

• What was the relevant PPP for the purposes of section 21E — the policy, practice or procedure to which the duty to make reasonable adjustments attached?
• Whether the duty to make reasonable adjustments is anticipatory and owed to deaf persons as a class, and if so whether the Chief Constable had taken reasonable anticipatory steps (for example, the availability or attendance of a BSL interpreter or training officers in alternative communication methods).
• Whether, on the facts found by the trial judge, any failure to make such adjustments caused detriment to the claimant.
• Allocation of burdens of proof once a potential reasonable adjustment is identified.

Key facts and procedural history. The searches were lawfully executed. The trial judge preferred police evidence to that of the claimant and found that on two of the three searches effective communication was achieved without an interpreter and that the claimant deliberately obstructed communication on one occasion (8 February 2011). The trial judge described the PPP as the requirement to attempt to establish effective communication and found no breach of duty. Permission to appeal was granted by Toulson LJ.

Court of Appeal reasoning. The Master of the Rolls concluded the relevant PPP was the standard practice of communicating in spoken English during searches (the base position before adjustments). He held the duty to make reasonable adjustments is anticipatory and must be assessed by reference to the needs of deaf persons as a class, not merely the particular circumstances of one individual. The judge below erred by conflating the policy aim of effective communication with the operative practice or procedure and by assessing adjustments on an ad hoc individual basis. The court also observed that reasonable steps might include use of BSL interpreters or trained officers competent in lip-reading or sign communication, and emphasised the need for public authorities to give evidence about their PPPs and anticipatory adjustments. However, applying the Lunt six-step approach, the Court of Appeal accepted the trial judge’s factual finding that no detriment was caused to Mr Finnigan in the searches where he was not obstructive, and therefore the failure to make an anticipatory adjustment in relation to him did not result in actionable discrimination. The appeal was dismissed.

Practical note. The court emphasised that public authorities should produce evidence about the content of their PPPs and any anticipatory adjustments made for disabled classes when resisting such claims.

Appeal dismissed. The Court of Appeal held that the relevant public authority practice, policy or procedure was the police practice of communicating in spoken English during searches and that the duty to make reasonable adjustments is anticipatory and owed to deaf persons as a class. The trial judge erred in characterising the PPP and in assessing reasonable adjustments by reference to the individual claimant, but the appeal was dismissed because on the trial judge’s factual findings the absence of an interpreter caused no detriment to this claimant on the occasions when he was not obstructive.

Appeal from Newcastle-upon-Tyne County Court (His Honour Judge Walton). Permission to appeal granted by Toulson LJ. Judgment of the Court of Appeal (Master of the Rolls, Jackson LJ and Gloster LJ) delivered at Royal Courts of Justice on 8 October 2013, [2013] EWCA Civ 1191, dismissing the appeal.