Time limits to issue claim - failure to make reasonable adjsutments

[heisenberg]

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

No it isn't, unless you completely disregard the PCP, context, circumstances etc.
It's a lot like saying that a non-disabled person would suffer the same disadvantage.

A person in a wheelchair suffers no disadvantage compared to someone who can walk when doing all sorts of day-to-day activities.
They can complain of a failure to make a reasonable adjustment when their disability makes it impossible to undertake a day-to-day task like climbing stairs because they can't walk.
They can't complain that someone failed to make a reasonable adjustment to enable them to brush their hair because the ability to walk is not required to do this.
The function of a reasonable adjustment is to avoid or minimise the disadvantageous, substantial, adverse effect that an individual's particular disability has on their ability to carry out an everyday task.

If I remember, the reasonable adjustment that you wanted was connected to the quality and quantity of their communication throughout a complaint process.
Although I recall you saying that a PCP should be liberally interpreted; I don't think that you actually defined your PCP. Specifying the precise PCP is the first thing you need to do in a reasonable adjustment claim.

I see what you mean.

The problem with a mental impairment is things aren't always crystal clear (ironically).

I think I argued in the case that is currently running at a County Court that the PCP was the practice of providing limited, unclear and confusing responses where they responded at all. I think I invited the inference that a healthy-minded individual would not face the same disadvantage (perhaps if you were to see the medical evidence surrounding my disability this argument would appear to be more compelling). This is of course a point where a Judge needs to exercise his/her subjective view on proper appreciation of all the facts.

I think what you are saying is there needs to be a clear connection between the alleged disadvantage and the disability?

I appreciate your input mariefab. :stars:

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It is also subject to objective justification - if they can show a reasonable reason why they acted as they did, it would be a defense.
It's a sort of balancing act between what they did, & a good reason why they did it.

Is there a binding case you have cited in this respect?

[charitynjw]

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

I see. I have not looked into that. I think I might have to. :goodjob:

Discrimination can be a tough nut to crack (unless it's obvious ie a racial attack, or not allowing a disabled person onto a bus).

Have you given thought to a plain old negligence claim?

[heisenberg]

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

Discrimination can be a tough nut to crack (unless it's obvious ie a racial attack, or not allowing a disabled person onto a bus).

Have you given thought to a plain old negligence claim?

Agreed. What is worse is that the other side will not even admit the discrimination to themselves on occasion let alone make overt admissions.

There is no legal aid for negligence claims and those are certainly tough nuts to crack to.

[mariefab]

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

If the firm you spoke to said that after reading some of the responses that you describe as, limited, unclear and confusing, that suggests that they concluded that anyone (with or without your disability) would agree with your description.
That blows up your PCP.
The claim would end at that point because unless you first establish a prima facie case the burden of proof doesn't shift to the defendant.

[charitynjw]

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

Agreed. What is worse is that the other side will not even admit the discrimination to themselves on occasion let alone make overt admissions.

There is no legal aid for negligence claims and those are certainly tough nuts to crack to.

This is a fairly detailed guidance from the EHRC.

[heisenberg]

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

If the firm you spoke to said that after reading some of the responses that you describe as, limited, unclear and confusing, that suggests that they concluded that anyone (with or without your disability) would agree with your description.
That blows up your PCP.
The claim would end at that point because unless you first establish a prima facie case the burden of proof doesn't shift to the defendant.

This is what they advised:

"Failure to make reasonable adjustments

You need to show that [the organisation] applied a provision, criterion or practice to you that put you, as a disabled person, at a substantial disadvantage. You suggest that you were disadvantaged because your condition affects your memory, concentration and overall cognition. Again my concern here is that you were fully able to engage with the complaints process and to explain what your concerns were at every stage, and you appear to have understood the correspondence, although you were dissatisfied with its content.

In my view it is not a substantial disadvantage to be disappointed with or disagree with the manner in which an organisation deals with complaints. I cannot see that your disability puts you at any disadvantage compared with a non-disabled person
who does not think their complaint is being dealt with correctly or who feels the process is inadequate.

You consider that [the organisation] should have helped you to “better understand the issues and liaise with [you] on a reasonable basis”, if necessary by adjusting their central complaint policy or the complaints handling procedure. Even if you could show that receiving an outcome you did not want did in some way put you at a substantial disadvantage as a disabled person, I am not sure what adjustments you are suggesting that would have alleviated that substantial disadvantage, other than starting the process again in the hope that a different outcome would be reached. I consider that [the organisation] explained clearly why they were not prepared to accept further complaints/enter into further correspondence about your complaints, i.e. that they had looked into all the issues you raised. I do not consider that a court would find it was a reasonable adjustment to continue answering your questions until you were satisfied in circumstances where there is no suggestion that you had additional evidence that [the organisation] should have considered when looking into your original complaint against the psychotherapist."

Firstly. I think they jumped to the conclusion that because I wrote to them expressing concerns that this automatically means I did not face any difficulty in my dealings with them and/or as a consequence of my mental health. I also think the assertion that I "understood the correspondence" needs to applied with caution.

Secondly, it is far from clear what the organisation's policy or standard practice is when providing reasons so there was an assumption made here. Indeed I raised a complaint about this but this was completely disregarded.

The have not explicitly stated that the organisation acted poorly or incorrectly from the perspective of any person.

This statement has me a little perplexed:

"Even if you could show that receiving an outcome you did not want did in some way put you at a substantial disadvantage as a disabled person, I am not sure what adjustments you are suggesting that would have alleviated that substantial disadvantage, other than starting the process again in the hope that a different outcome would be reached."

The whole purpose of asking for fuller reasons was to help me understand where my complaint had failed so I could draft another (against the psychotherapist) more reasonably whilst suffering from a debilitating mental illness. I don't think it was a lot to ask for in the circumstances.

My current solicitor has asserted he in not sure how to assess this case as the other side has failed to engage with the CPR (unlike this organisation to explain itself clearly).

[mariefab]

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

Did just one employee of the NHS deal with your complaint from start to finish?
If more than one employee was involved , how many?

[heisenberg]

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

Did just one employee of the NHS deal with your complaint from start to finish?
If more than one employee was involved , how many?

Hi again.

The complaint was against just one NHS employee (the psychotherapist). I raised a formal complaint (which was probably looked into by various people) with the NHS and later raised a complaint with the PHSO.

The organisation I have issued proceedings against is not the NHS. I will give you a clue as to who they are by saying they are an organisation not too dissimilar to the British Association for Counselling and Psychotherapy (BACP) though appear to be vastly inferior.

I took my complaint right to the Chair of the organisation so more than one person dealt with aspects of that (fobbing me off each time and, by so doing, creating more difficulty for me).

[charitynjw]

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

This statement has me a little perplexed:

"Even if you could show that receiving an outcome you did not want did in some way put you at a substantial disadvantage as a disabled person, I am not sure what adjustments you are suggesting that would have alleviated that substantial disadvantage, other than starting the process again in the hope that a different outcome would be reached."

Imho & from a slightly different perspective, they are saying

1/ The service provider has a policy or practise, which they regard as reasonable, & applicable to disabled & non-disabled persons without discrimination.
2/ They adhered to that policy/practise when dealing with you.
3/ The result was not in your favour.
4/ You now dispute the legal fairness of the policy/practise. (there's a big difference between legal fairness & a subjective opinion of moral 'fairness').
5/ You want to challenge the policy/practise, & perhaps have it altered in a way that suits you.
6/ You have not suggested a fair alteration (although this is not strictly necessary, it would help if you could suggest an equitable remedy)

The whole purpose of asking for fuller reasons was to help me understand where my complaint had failed so I could draft another more reasonably whilst suffering from a debilitating mental illness. I don't think it was a lot to ask for in the circumstances.

Some years back you could send them a 'disability questionnaire'which they had to answer, but I don't think that's applicable any more.

My current solicitor has asserted he in not sure how to assess this case as the other side has failed to engage with the CPR (unlike this organisation to explain itself clearly).
https://www.justice.gov.uk/courts/pr...rt18/pd_part18

cccc

[heisenberg]

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

Perhaps I should clear up that this thread initially related to a different person/consultant (a maxillofacial surgeon who I raised an NHS complaint against). It appears things have diverted somewhat and perhaps caused confusion. :sorry:

[wales01man]

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

If you were to take and win an action what would you expect to get out of it in monetary terms, If its a pay out you are after want advice did the Solicitor you consulted give as to an amount to expect

[heisenberg]

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

Imho & from a slightly different perspective, they are saying

1/ The service provider has a policy or practise, which they regard as reasonable, & applicable to disabled & non-disabled persons without discrimination.
2/ They adhered to that policy/practise when dealing with you.
3/ The result was not in your favour.
4/ You now dispute the legal fairness of the policy/practise. (there's a big difference between legal fairness & a subjective opinion of moral 'fairness').
5/ You want to challenge the policy/practise, & perhaps have it altered in a way that suits you.
6/ You have not suggested a fair alteration (although this is not strictly necessary, it would help if you could suggest an equitable remedy)

Whoa! That is jumping the gun a tad old chap. :eek2:

I think they, the firm, overlooked the argument I was trying to make that it was not unreasonable for them (the Defendant in this case), in all the circumstances, to provide a full breakdown of the rationale used in every aspect of my complaint.

Some years back you could send them a 'disability questionnaire'which they had to answer, but I don't think that's applicable any more.

I sent them a pre-action letter - they just ignored that. I have issued a claim - they have ignored that too apart from the odd threat of costs. So, I would argue that sending them a request for further information is futile.

[charitynjw]

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

Perhaps I should clear up that this thread initially related to a different person/consultant (a maxillofacial surgeon who I raised an NHS complaint against). It appears things have diverted somewhat and perhaps caused confusion. :sorry:

Lol!

You don't want to be labelled a vexatious litigant (& accusing the court of being discriminatory as well might be a step too far!)
Just joking!

[heisenberg]

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

If you were to take and win an action what would you expect to get out of it in monetary terms, If its a pay out you are after want advice did the Solicitor you consulted give as to an amount to expect

My solicitor has put 9k to them. Whether we get anything near that remains to be seen.

The problem they face is that if the Judge agrees they have aided unlawful discrimination they are financially liable for the act they have aided.

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Lol!

You don't want to be labelled a vexatious litigant (& accusing the court of being discriminatory as well might be a step too far!)
Just joking!

Indeed. Where did I accuse the court of anything discriminatory?

[charitynjw]

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

Indeed. Where did I accuse the court of anything discriminatory?

Just pre-empting the possibility is all! (& I did say I was joking :taunt