After a five year battle we eventually got the Parliamentary Ombudsman to recommend compensation and changes to DWP practices regarding benefits sanctions.

We worked with Rebecca Long-Bailey MP who referred the case to the Ombudsman.  Incredibly the case was rejected and then the DWP was uncooperative making it KDR's longest running ever case.

The complainant was a severely disabled widow.  Her entire income was removed when accidentally missing a Jobcentre Plus appointment having being wrongly found fit for work. 

This was during a very dark period in DWP history when staff were instructed to sanction claimants with targets widely believed to have been in place.  It is appreciated sanctions still happen, but it is not on the scale it was back in the days when Iain Duncan Smith was Secretary of State. 

KDR's client was severely injured by the destitution inflicted upon her, but thankfully recovered - many victims didn't and some were even killed.  Hence we were relieved to get recommendations made by the Ombudsman to hopefully ensure the sanctions regime cannot be used against disabled people in the future.  The DWP eventually agreed to the recommendations.

Here is the report.  The reason for the delay in getting it on here is we've been swamped with face coverings cases!

Our main work prior to January 2021 was PIP when suddenly we were hit with a tsunami of face coverings cases. These should be simple disability discrimination claims but law firms advertise to organisations that they will deal with the claims for them on a commericial (for profit) basis. Their tactics are typically to seek to grind claimants down by spinning the claims out as long as possible and making threats of costs along the way.

We referred many cases to Fry Law who went bankrupt showing the lack of money in disability work. Thus we have a situation where large corporate law firms represent the offenders whereas the victims suffer more injustice with no remotely user-friendly route to get justice being available.

As a tiny limited company (2 full time staff and 3 part time) we could not cope with the massive increase in work. Some customers got angry with us when we couldn’t meet their expectations. Others became disillusioned that justice seemed ever further away. For many the intimidatory tactics adopted by defendants caused them to have to give up to protect their health.

Only a tiny fraction of cases (11) were settled informally with most still ongoing having been referred to other firms when Fry Law went bankrupt. An even greater number fell through the cracks where there was just no capacity to take them forward and / or the prospects of success were very limited.

Given all the above it will come as no surprise that we are continuing to have to say that we are unable to assist with all but the most extreme cases. These are where disabled people’s health is put at risk where they cannot wear face coverings and organisations refuse to accept that they must treat people unable to wear a face covering due to disability the same as those fortunate enough to be able to wear face coverings. Our previous news item has self-help resources.

As a company we are prioritising PIP as this is needed to prevent poverty and deprivation that are damaging to health.

We have been overwhelmed with face coverings cases because so few organisations are tackling this issue, and because it is such a big one.

We are currently unable to take on any new cases but encourage you to consider the following information if you are running out of time to issue your claim, remembering there is a six month time limit.

The following guidance is for peope who have already contacted a service provider about disability discrimination, perhaps using a face coverings discrimination letter and who have either had a negative response or no response.

Your options are:.

1.  To seek a solicitor by contacting the Law Society: https://solicitors.lawsociety.org.uk

2.  To use an alternative route if there is one such as an Ombudsman or the NHS complaints procedure.

3.  To run your own county court claim.  Here is a template court form.  If you are on a low income you can get help with court fees by following this link: https://www.gov.uk/get-help-with-court-fees.  You can then put the reference number in the top right hand corner of the form. 

To identify the correct legal name of the Defendant use the Companies House website to get the correct name and address for the business that discriminated against you.  https://www.gov.uk/get-information-about-a-company.  You can then make sure you have the correct name and address on your claim form.

Once your claim is issued you usually have 4 months to send it to the Defendant if you use this letter when sending your claim to the court.

You should include 3 copies - two to be sealed and returned to you (one to keep and one to send to the Defendant) and one that the court will keep.  But if you have a disability that makes this unrealistic you could use the court email making it clear you are doing that as a disabled litigant in person who cannot meet the standard requirements - This email address is being protected from spambots. You need JavaScript enabled to view it. .

This approach gives you further time to negotiate.  The onus is then on you to send the claim form to the Defendant.

Information on the county court claim process can be found here: https://www.kingqueen.org.uk/dart.  And here: https://www.gov.uk/make-court-claim-for-money.  

To proceed you would then need

a. To be able to write your particulars of claim to follow the claim form.  This is a summary of your case.  Here is a template .   We are sorry this is in PDF - our website does not take other formats but you can convert it to Word and then work with it - various online converters are available.  Or try copying and pasting the text.
 
b. Medical evidence.  Although you don't need medical evidence to exercise a face coverings exemption you will for your court claim.  The evidence must lead a reasonable person to believe you are disabled under the Equality Act 2010 (namely that you have a condition that has a substantial impact on your ability to carry out normal day to day activities for more than a year).  It must also lead a reasonable person to believe you cannot safely wear a face covering.  You do not need to send medical evidence with your claim but you must have it ready in case your claim is defended.

The risks of running your court claim yourself

• The Defendant might intimidate you with threats of costs proceedings against you.  If your case was not allocated to the small claims track, and you lost, and you have income and/or capital and/or assets, you could be liable to pay the other side's legal costs if a court thought it was just for you to do so.  Basically the less you have the less risk there is.  So if you are on means tested benefits and have no savings or assets of any significance there is little risk.  This is because even if the Defendant got an order for costs you could not afford to pay it anyway and it would be an unsecured debt.  If you have income and/or assets the risk is much greater.
  
• Proceedings can get stressful.  Defendants may deploy ruthless lawyers to try and face you down and use intimidatory tactics to do so.  Do no expect any humanity, reasonableness or compassion of any kind.  Lawyers will defend cases using every means at their disposal even when they know you are right and their client is wrong.  Be prepared to be made to feel that you are on trial, but remember you are not, the Defendant is.  Parliament has provided face coverings exemptions, it is considered unlikely a court would find in favour of a service provider trying to argue those exemptions don't apply to it.
• The courts are not necessarily helpful to litigants in person, but the senior judges say they should be: https://www.judiciary.uk/wp-content/uploads/2021/02/Equal-Treatment-Bench-Book-February-2021-1.pdf.  So officially you are welcome in the courts service as a disabled litigant in person and can expect reasonable accommodations as you seek justice.
  
• If you are not court fees exempt you will have to pay court fees and if you lose you cannot recover them.  If you win, however, the Defendant would probably have to pay them.  Information about court fees can be found here: https://www.gov.uk/make-court-claim-for-money/court-fees .  The template claim would attract a fee of £455, if you are not fees exempt, but if you claim less the fee is less.
  

The Advantages of running your own case

•  You do not have to pay anyone a share of any winnings - you get them all.
•  You have control.
•  The court has to make reasonable accommodations for you.
•  The Defendant is likely to have to do the bulk of any paperwork involved to provide the case bundle for the court.
•  The Equality Act is largely only enforced by people bringing cases.  There are so many potential discrimination cases that lawyers and advice agencies will only be able to cover a fraction of the total demand.  If you can do it yourself you are ready to deal with any other discrimination you may face.
  
• There is support available for litigants in person from Support Through Court: https://www.supportthroughcourt.org
  

Please remember there is usually a six month time limit from the incident date to get your case to court.

We are sorry we cannot do more.  We are one of a tiny number of organisations that have done anything about the scandal of disability discrimination arising from the face coverings regime.  Disability and advice charities with substantial funding bases have been largely silent.  We were hoping the work could be spread out more, but so much of it has come to us and we are too small to do it all.

We are seeking additional capacity as we build the business to fight the tidal wave of disability discrimination engulfing society.  Unfortunately, this will take time hence our asking you to use the above information.

 

Unfortunately we are having to dramatically reduce the number of face coverings cases we take on.  This is because:

 

• We are a small company having only 5 staff.
• The face coverings work is swamping other areas.
• Service providers almost invariably seek to defend the indefensible and drag matters out as long as possible.
• Staff are working ludicrous hours trying to deal with it and there is a risk to them unless we reduce demand.
• Some customers form expectations we cannot meet.

 

So reluctantly we have had to bring in the following criteria for us to be able to take on a face coverings case:

 

• The case must involve denial of access to essentials such as health-care, education or employment because you are disabled and cannot safely wear a face covering.
• The guilty party must have confirmed its position in writing.

 

In most cases if a written complaint is made the organisation will change its position.  If, when you've made a complaint, the organisation insists it can bar you even though you have made clear you are exempt from wearing a face covering then let us know and we'll do everything we can.

If you still wish to pursue a court claim then here is a template face coverings discrimination letter.

Taking things further can be done using the Disability Attitude Readjustment Tool in England and Wales.

Alternatively you can use the Equality and Human Rights Commission advice service.

Or there is the Equality Commission for Northern Ireland.

Please always remember there is usually a six month time limit for a disability discrimination claim, although for employment cases it is usually 3 months. 

Unfortunately the face coverings crisis increases with easing of restrictions where people are officially allowed to do more, but where ignorant service providers wrongly believe that people are only allowed to take advantage of services reopening if they are able to wear a face covering. 

All UK devolved governments have approved exemptions so that disabled people unable to wear face coverings are not excluded from society.  Services cannot reasonably make up their own rules that go beyond the face coverings regimes envisaged by UK legislatures, namely that most people have to wear face coverings in relevant places, but not those who are unable to wear one. 

The dangerous mob rule that has sprung up in pockets around the UK, where people favour a 100% face coverings regime with no legal basis and take it upon themselves to enforce it, is a disburbing development in society with a very sinister dimension.   No security guards, members of the public, shop staff etc have any right to try to enforce face coverings.  Enforcement agents are specified in the relevant regulations and typically comprise police officers, police community support officers and local authority officers only. 

Face coverings exemptions cover virtually all indoor service environments.  Individual business owners cannot legitimately declare their premises a private space where the law of the land does not apply.  There is also no legal basis for people seeking to enforce mask wearing outdoors.

Due to the further increase in cases this situation has caused, we regret we can only take on the most urgent and severe cases.  These are typically situations involving harassment and exclusion from essential services of disabled people clearly unable to wear a face covering.  Also please bear in mind that the majority of service providers DO respect face coverings exemptions most of the time.

We do, however, have our services face coverings discrimination letter.  Please note there is usually a maximum of 6 months to get your case to court from the date of the discriminatory incident.

Information about taking matters further can be found here .

Please note service providers are unlikely to cave in without a fight - there is no magic letter or notice that will make everyone see sense.  If you go to court there is always a risk factor.  The risk is less the poorer you are.

Some service providers are very aggressive about the issue of masks - it brings out the worse in people.  The only way to bring cases against them is in the courts.  There is no enforcement body that will enforce your rights unless a criminal offence is committed.  This can be the case in the more extreme incidents but usually it's a breach of civil rights, which is only enforceable by the victim bringing their own proceedings. 

Unless enough of us make a stand, the situation may well get worse and lead to further erosion of basic civil rights.