Katherine Rowley, R (on the application of) v Minister for the Cabinet Office

The reasonable-adjustments duty under the Equality Act 2010 is anticipatory, continuing and objective. It requires service-providers to secure the closest reasonably practicable approximation to ordinary access. For information services, sign-language interpretation may be a paradigm auxiliary service. The comparative-disadvantage trigger is assessed by reference to the relevant class of disabled people, before existing adjustments are taken into account. Failure to secure BSL interpretation for important public briefings breached the duty. However, where in-screen and on-platform interpretation are both reasonably effective, the choice between them is a policy choice for the service-provider. The court must not choose between comparably reasonable alternatives. The public sector equality duty is a process duty requiring rigorous, evidence-based and legally sufficient consideration, but it does not require the court to determine the weight given to equality considerations.

The claimant, a Deaf BSL user, sought judicial review concerning Government coronavirus briefings. She challenged the absence of any BSL interpretation for data briefings on 21 September and 12 October 2020, and the continuing use of in-screen rather than on-platform BSL interpreters. She relied on the reasonable-adjustments duty and the public sector equality duty under the Equality Act 2010, seeking declarations, a mandatory order and damages. The court considered whether the historic failures constituted discrimination, whether current arrangements complied with the statutory duties, and what remedies were appropriate.

1. Historic data briefings. The defendant was a service-provider. Deaf BSL users were the relevant class, and the absence of BSL interpretation placed them at a serious comparative disadvantage in receiving important public information. Subtitles did not remove that disadvantage. BSL interpretation was an auxiliary service within section 20(5) of the Equality Act 2010.
2. The reasonable-adjustments duty was anticipatory and proactive. The defendant could not rely on an informal arrangement under which the BBC decided whether to provide interpretation. It was the Government’s statutory responsibility to secure accessibility. The claimant established facts shifting the burden under section 136, and the defendant failed to show compliance. The failures on both dates therefore amounted to discrimination under sections 21(2) and 29(2).
3. The claimant was entitled to a declaration. The damages claim was transferred to the county court for assessment.
4. Current arrangements. The PSED assessment was produced late but was a rigorous and open-minded evaluation. The PSED is a process duty requiring importance, proactivity, rigour, evidence-based thinking and legally sufficient enquiry. The court does not decide the weight to be given to equality considerations.
5. In-screen interpretation was an accessible format and a reasonable alternative. On-platform interpretation had advantages, including replication, elimination of technical failures, inclusion and promotion, but detailed data slides and journalists’ questions created substantial countervailing concerns. The defendant therefore discharged the burden of showing that in-screen interpretation was a reasonable adjustment. There was no present breach of the PSED or reasonable-adjustments duty. The remaining claim was dismissed.

First-instance judicial review judgment. No appeal decision is stated in the judgment.