Time limits to issue claim - failure to make reasonable adjsutments

[charitynjw]

Re: Time limits to issue claim - failure to make reasonable adjsutments

Yeah, that is my concern. Throwing a 'silk' into a small claim does seem like overkill but I wouldn't put it past the NHS. All paid for by the taxpayers like you and me of course.

They may only get some legal costs if the claim is struck out though that would be at the discretion of the Judge.

You reckon it would be Small Claims?

The 'complexity' of the issue might be beyond that.

If it were allocated to fast track or multitrack...........................?

[heisenberg]

Re: Time limits to issue claim - failure to make reasonable adjsutments

You reckon it would be Small Claims?

The 'complexity' of the issue might be beyond that.

If it were allocated to fast track or multitrack...........................?

Yeah, I am still very unsure as to what makes a claim too complex for the small claims track. If it would be allocated to the fast track I would be scuppered.

[charitynjw]

Re: Time limits to issue claim - failure to make reasonable adjsutments

Yeah, I am still very unsure as to what makes a claim too complex for the small claims track. If it would be allocated to the fast track I would be scuppered.

Case Management works in mysterious ways..................................

[wales01man]

Re: Time limits to issue claim - failure to make reasonable adjsutments

I have no legal knowledge but after reading this I think if you try to make a claim you will end up up we a big headache a load of stress and maybe a large legal bill , As you say they will use public money to fight you after all we all know and read what public bodies spend fighting legal claims rightly or wrongly.

[Openlaw15]

Re: Time limits to issue claim - failure to make reasonable adjsutments

I think if I can successfully argue that there is a continues failure to make reasonable adjustments then I would overcome that hurdle. I think the same applies to any continues practice, policy or procedure that causes an issue.

A continuing act of discrimination means ...even though the party are alert to use reasonable adjustments has failed to do so...so the 3 months will start at the last omission.

[heisenberg]

Re: Time limits to issue claim - failure to make reasonable adjsutments

A continuing act of discrimination means ...even though the party are alert to use reasonable adjustments has failed to do so...so the 3 months will start at the last omission.

I thought that was a continuing failure?

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I have no legal knowledge but after reading this I think if you try to make a claim you will end up up we a big headache a load of stress and maybe a large legal bill , As you say they will use public money to fight you after all we all know and read what public bodies spend fighting legal claims rightly or wrongly.

I know what you mean. The sickening thing is the NHS has a duty of candour but they have simply disregarded that duty in my experience (and probably in the experience of others).

[heisenberg]

Re: Time limits to issue claim - failure to make reasonable adjsutments

Here is a fairly recent decision by the EAT on this point:

http://www.employmentcasesupdate.co....aspx?i=ed21773

It does not seem binding on a County Court though.

[mariefab]

Re: Time limits to issue claim - failure to make reasonable adjsutments

Time limits for Services and public function claims.

http://www.legislation.gov.uk/ukpga/2010/15/section/118

[heisenberg]

Re: Time limits to issue claim - failure to make reasonable adjsutments

Time limits for Services and public function claims.

http://www.legislation.gov.uk/ukpga/2010/15/section/118

Thanks mariefab.

This is a tricky one. I think I would need to argue there is a "continuing state of affairs". I am beginning to think that it may be be too risky if they can attain a Costs Order if my claim is struck out.

[charitynjw]

Re: Time limits to issue claim - failure to make reasonable adjsutments

No comparator needed for a section 15 or section 20 contravention. I think the solicitor who 'advised' got himself in a bit of a muddle and certainly left me confused. The firm are refusing to revisit this even after raising a series of complaints and serving a letter before action on them.

To cut a long story short there was an alleged 'breakdown' after I raised a complaint against a consultant. The consultant first asserted it was 'inappropriate' to see him again after I raised a complaint against him (contrary to GMC guidance). The Trust concede this is not standard practice therefore I have been treated less favourably than a hypothetical comparator.

After sending the Trust a letter before action they now contend (and re-jiggle their defence somewhat) that the 'breakdown' was fully justified as they allegedly failed to address my concerns. This, I feel, is a serious case of putting words in my mouth to justify unlawful acts/discrimination.

http://www.legislation.gov.uk/ukpga/2010/15/section/20

The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

[charitynjw]

Re: Time limits to issue claim - failure to make reasonable adjsutments

& s15

15Discrimination arising from disability

(1)

A person (A) discriminates against a disabled person (B) if—

(a)

A treats B unfavourably because of something arising in consequence of B's disability, and

(b)

A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2)

Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

[heisenberg]

Re: Time limits to issue claim - failure to make reasonable adjsutments

http://www.legislation.gov.uk/ukpga/2010/15/section/20

The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

Yeah, that is a point a certain firm that advised me misunderstood albeit in my opinion. I think the part you highlighted above is a reference to a person who does not share that protected characteristic (and therefore does not suffer the disadvantage).

The firm I spoke to said that I suffered no disadvantage when compared to a non-disabled person (which is a bit like saying a person in a wheelchair suffers no disadvantage compared to someone who can walk). That was really poor advice coming from a solicitor who allegedly deals with matters of discrimination on a daily basis.

- - - Updated - - -

& s15

15Discrimination arising from disability

(1)

A person (A) discriminates against a disabled person (B) if—

(a)

A treats B unfavourably because of something arising in consequence of B's disability, and

(b)

A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2)

Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

Thanks. I suspect they would try and argue there actions were fair and legitimate.

[charitynjw]

Re: Time limits to issue claim - failure to make reasonable adjsutments

The firm I spoke to said that I suffered no disadvantage when compared to a non-disabled person (which is a bit like saying a person in a wheelchair suffers no disadvantage compared to someone who can walk). That was really poor advice coming from a solicitor who allegedly deals with matters of discrimination on a daily basis.dated - - -
.

Imho, you are not approaching this properly.
You have to ask yourself the 'but for' question.
"But for my disability, would I have been treated differently?"
Put another way, all they would have to show is that they would have treated a person who does not have the disability in the same manner.
Of course, if you can prove that you were treated detrimentally specifically because of the disability (ie, the disability was the reason for the shoddy treatment), you might be in with a shout.
Bear in mind, however, that the standard of proof (balance of probabilities) is a movable feast, & the bar is likely to be very high (I'd say near on beyond reasonable doubt level).

'Course, that's just my opinion.

[heisenberg]

Re: Time limits to issue claim - failure to make reasonable adjsutments

Imho, you are not approaching this properly.
You have to ask yourself the 'but for' question.
"But for my disability, would I have been treated differently?"
Put another way, all they would have to show is that they would have treated a person who does not have the disability in the same manner.
Of course, if you can prove that you were treated detrimentally specifically because of the disability (ie, the disability was the reason for the shoddy treatment), you might be in with a shout.
Bear in mind, however, that the standard of proof (balance of probabilities) is a movable feast, & the bar is likely to be very high (I'd say near on beyond reasonable doubt level).

'Course, that's just my opinion.

Thanks.

For a reasonable adjustments argument to succeed there is no need for a comparator in my opinion (but that is just my opinion). See also http://www.legislation.gov.uk/ukpga/2010/15/section/23

I think I only need to establish enough of an argument for the the burden of proof to reverse in the first instance:

http://www.legislation.gov.uk/ukpga/2010/15/section/136

[charitynjw]

Re: Time limits to issue claim - failure to make reasonable adjsutments

Thanks.

For a reasonable adjustments argument to succeed there is no need for a comparator in my opinion (but that is just my opinion). See also http://www.legislation.gov.uk/ukpga/2010/15/section/23

I think I only need to establish enough of an argument for the the burden of proof to reverse in the first instance:

http://www.legislation.gov.uk/ukpga/2010/15/section/136

136Burden of proof

(1)

This section applies to any proceedings relating to a contravention of this Act.

(2)

If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.