Ladd v London Borough of Bromley

From any objective viewpoint this is most unfortunate litigation. The claimant is now 91 years old. In early 2010 she applied for parking purposes for what is commonly known as a Blue Badge from the defendant council, into whose borough she had recently moved. This Blue Badge was not forthcoming, in circumstances which I will come on to relate, and she ultimately threatened judicial review proceedings. There was then a home assessment visit by the council and a Blue Badge was promptly issued to her thereafter.

One would have thought that matters could and should have been left there. Not so. The claimant elected then to issue proceedings in the County Court claiming damages for disability discrimination and for alleged infringement of her human rights under Article 8 of the European Convention on Human Rights. The matter then went to trial. After a two-day trial District Judge Silverman, sitting in the Central London County Court, by a reserved judgment handed down on 14 November 2011 acceded to the claim of disability discrimination. He rejected the claim under the Human Rights Act 1998. He ordered the council to pay damages in the sum of £5,000 as well as all the costs of the proceedings.

The council has appealed with leave granted by Rafferty LJ. Rafferty LJ urged mediation but that proved fruitless. So it is that this matter comes before the court today, confined to the disability discrimination point.

It has to be said that the judgment under appeal, although very lengthy, does not clearly marshal the facts or findings, or the issues arising, as opposed to reciting at great length what the pleadings and arguments asserted and recording the evidence given. The actual reasoning dispositive of the claim is terse in the extreme and, as Rafferty LJ observed with no element of understatement, the District Judge's line of reasoning is not always apparent.

The essential background, however, can I think be quite shortly stated. A Blue Badge for disabled drivers (the scheme first being introduced in 1971) is available to be awarded to a person with a permanent and substantial disability causing inability to walk or very considerable difficulty in walking (see Regulation 4 of the Disabled Persons (Badges for Motor Vehicles) (England) Regulations 2000 as amended). There is no doubt whatsoever but that the claimant, Mrs Ladd, was entitled to a Blue Badge. She was born on 23 January 1921. She contracted polio when she was just one, leaving her with a weakened leg and damage to her back. She needs arm crutches to walk and is liable even then sometimes to fall. She undoubtedly was disabled within the meaning of the Disability Discrimination Act 1995 (as amended) -- the relevant events, I should add, antedate the 2010 Equality Act -- as well as being within the relevant Blue Badge regulations.

Mrs Ladd had lived in the London Borough of Lewisham for many years. That had duly issued her with a Blue Badge and had renewed that regularly each year. The present problem arose when she moved in 2009 to live in an area of the London Borough of Bromley. Her then current Blue Badge, as issued by the London Borough of Lewisham, was due to expire on 26 March 2010. She applied to the London Borough of Bromley for a new Blue Badge on 20 January 2010. Apparently she had driven down to the Civic Centre that day and had given her application to a man whom she saw in the car park, trusting him to deliver her application as indeed he did.

It was the standard, albeit at that time unwritten, policy of the London Borough of Bromley not to issue Blue Badges to new applicants to new applicants without their first having an assessment. I might add that it was common ground that Mrs Ladd was, unusually for someone in her position, not automatically entitled to the receipt of a Blue Badge.

In the event the policy of the London Borough of Bromley, in broad terms at least, accorded with local authority guidance for the Blue Badge scheme previously issued by the Department for Transport in January 2008. In the relevant respects the policy said this:

It was the undisputed evidence of the London Borough of Bromley that it, and indeed all other local authorities, have a significant problem with fraud in this context: local authorities are bedevilled by dishonest applications for Blue Badges or by dishonest transfers of Blue Badges once issued and accordingly local authorities need to be very careful before issuing them.

Of course, Mrs Ladd herself was undoubtedly a bona fide applicant entitled to a badge. The London Borough of Bromley, however, was at that time not necessarily to know that. It is not disputed that a member of the council's Blue Badge team, Amy Hall, rang Mrs Ladd at the beginning of February 2010 after her application had been lodged. The call was routinely recorded and the transcript reads as follows :

In the event Mrs Ladd did write and provide to the council a doctor's letter, the doctor being her GP, which in effect unequivocally endorsed her entitlement to a Blue Badge. That letter, dated 8 February 2010, set out briefly the background history of Mrs Ladd and recorded that she had polio as a child and ended in this way :

In due course Amy Hall on behalf of the London Borough of Bromley sent Mrs Ladd a further letter on or around the 21 February 2010, although it seems that that letter is misdated 21 January 2010. It reads as follows :

As it happened, through inadvertence, no map was enclosed with that letter. Mr Greatorex, counsel on behalf of Mrs Ladd, sought to make something of that but it is a complete nonsense. Mrs Ladd knew perfectly well where the Civic Centre was. She had already been there and in any event she could easily have asked for a map if she had wanted it.

The reality was that Mrs Ladd was very displeased with the whole situation. She considered that she should have been granted a Blue Badge by the London Borough of Bromley without more ado and she greatly resented the requirement for an independent assessment and resented having to enter into her communications with the council to that effect.

Nevertheless the position was that her application had been returned with no further reasons given other than as indicated.

The District Judge, it may perhaps be noted, did not find that Mrs Ladd was a "serial complainer", although there had been evidence that she had made a number of other complaints in a number of other contexts. He in fact described her as a "very sharp and bright" person with degrees from London University who had had a full life and who was "someone to stand up for her rights".

Eventually Mrs Ladd took legal advice, she still not being minded to seek to attend the Civic Centre for an independent assessment. A pre-action protocol letter dated 15 March 2010 was sent threatening judicial review. There were then discussions and a proposal was made and accepted to the effect that the eligibility assessment should take place at Mrs Ladd's home and in the presence of anyone of her choosing, including a lawyer. A date was given by which the assessment should take place with the decision to follow shortly thereafter.

The London Borough of Bromley had thus indicated that, contrary to its normal policy, it would make a home visit by a physiotherapist. Mrs Ladd had agreed to this for practical reasons, as the district judge found. The assessment duly took place on the morning of 18 March 2010. Mrs Ladd was hostile, viewing a number of the questions asked as impertinent or irrelevant. She also refused to demonstrate her inability to walk, although she did walk into the hallway. In the event the London Borough of Bromley told her that same afternoon that she would be receiving a Blue Badge, which was then hand delivered.

Notwithstanding all this Mrs Ladd determined on further legal proceedings, not by way of judicial review but by way of alleging disability discrimination and breach of her Article 8 rights. Mr Greatorex, then as now her counsel, told us that (rather surprisingly to my mind) a significant motivation for the proceedings was to recover the legal costs occasioned by obtaining the initial advice and pre-action protocol letter threatening judicial review. Indeed the claim form, when issued on 18 August 2010, actually saw fit to include those costs as a head of damage sought to be recoverable. A defence was served on 21 September 2010.

The claim for discrimination was formulated in the pleaded case by reference both to section 21D(1) and to section 21D(2) of the 1995 Act. Reference should first, however, be made to section 21B of that Act, which in the relevant respects provides as follows :

“(1)

It is unlawful for a public authority to discriminate against a disabled person in carrying out its functions.

(2)

In this section, and sections 21D and 21E, ‘public authority’—

(a)

includes any person certain of whose functions are functions of a public nature; but

(b)

does not include any person mentioned in subsection (3).”

It is unnecessary to read more.

Section 21D in the relevant respects reads as follows:

“21D (1) For the purposes of section 21B(1) a public authority discriminates against a disabled person if -

(a)

for a reason which relates to the disabled person’s disability, it treats him less favourably than it treats or would treat others to whom that reason does not or would not apply; and

(b)

it cannot show that the treatment in question is justified under subsection (3), (5) or (7)(c )

(2)

For the purposes of section 21B(1) a public authority also discriminates against a disabled person if-

(a)

It fails to comply with a duty imposed on it by s.21E in circumstances in which the effect of that failure is to make it -

(i)

impossible or unreasonably difficult for the disabled person to receive any benefit that is or may be conferred, or

(ii)

unreasonably adverse for the disabled person to experience being subjected to any detriment to which a person is or may be subjected

by the carrying out of a function by that authority; and

(b)

it cannot show that its failure to comply with that duty is justified under subsection (3), (5) or (7)(c)…”

Section 21E reads in the relevant respects as follows :

“(1)

Subsection (2) applies where a public authority has a practice, policy or procedure which makes it—

(a)

impossible or unreasonably difficult for disabled persons to receive any benefit that is or may be conferred, or

(b)

unreasonably adverse for disabled persons to experience being subjected to any detriment to which a person is or may be subjected,

by the carrying-out of a function by the authority.

(2)

It is the duty of the authority to take such steps as it is reasonable, in all the circumstances of the case, for the authority to have to take in order to change that practice, policy or procedure so that it no longer has that effect. ...”

Against that statutory context the pleaded allegation by reference to section 21D(1) was in these terms, as contained in paragraph 27 of the Particulars of Claim:

As to Section 21D(2) the practice, policy or procedure relied on was the insistence that all Blue Badge applicants must without exception be assessed. It was pleaded that this made it unreasonable for Mrs Ladd to get her Blue Badge renewed. It was further pleaded in paragraph 30, by reference to section 21E(2), that the steps that were reasonable in all the circumstances of the case for the council to take were these:

“(1)

to have renewed the Blue Badge without an assessment;

2)

to have raised any concerns it may have had with the Claimant's GP;

3)

to have called at the Claimant's door to confirm her identity."

Whilst recording the arguments at some considerable length (and it may be noted that judgment was reserved) the District Judge did not, with respect, really make clear the reasons for his actual decision, which were in effect contained in just one paragraph, paragraph 75 of the judgment. That in the relevant respects reads as follows :

So far as the 1995 Act is concerned, this reasoning is truly hard to follow or fathom. Much of it would seem to have been more obviously relevant to what may have been needed to have been debated in any judicial review claim. But that was not the claim before the District Judge. It would however appear that the main focus of his decision was a focus on section 21D(2) and section 21E of the 1995 Act and on a finding of failure to make reasonable adjustments: the District Judge apparently accepting what was pleaded in paragraph 30(1), (2) and (3) of the Particulars of Claim, albeit without indicating which particular one found favour with him.

The District Judge at all events made no express finding as to whether there was less favourable treatment for the purposes of section 21D(1) nor, if there was, what the comparator pool was. Further the references to "consideration" in paragraph 75 of the judgment are also, to my mind, difficult to understand. Failure properly to consider matters may quite frequently be relevant to a judicial review claim; but how it can be relevant to this particular discrimination claim is left wholly obscure.

Possibly recognising the potential obscurities and difficulties in the District Judge's judgment, Mr Greatorex has sought to put in a Respondent's Notice dated 11 April 2012. As discussed in argument with Mr Greatorex, and as I think he accepted, it is in unsatisfactory form, not identifying the particular points sought to be relied upon in support of the judgment below but in effect saying simply that the respondent would rely on the arguments and pleadings below. Whilst this is indeed unsatisfactory, we have heard Mr Greatorex. All the same, this does mean, in my view, that Mr Greatorex should not now be permitted to argue his case or put his points in a way which was not argued or pleaded below.

Turning to the disposition called for in this case, given the circumstances of this particular case I can see no proper basis, whether by reference to section 21D(1) or by reference to section 21D(2), for a conclusion in favour of Mrs Ladd.

Some initial factual points need to be made, as I see it. First, it was completely wrong, with respect, for Mr Greatorex to assert that the council had "insisted" that Mrs Ladd allow someone into her home to carry out an assessment. That is a point he had sought to make in his argument. The council had, however, sought to do no such thing, as a matter of fact. What it was insisting on was that, before a Blue Badge could be issued to Mrs Ladd, an assessment must first be made: it saying that it should be at the Civic Centre. It was only when Mrs Ladd herself adamantly refused and only when her legal adviser had threatened legal proceedings and a home visit was then proposed that the council agreed, exceptionally, to make a home visit for the assessment. So this was not an insistence by the council but a concession designed to favour Mrs Ladd.

Secondly, it is also wrong to say dismissively, as Mr Greatorex did in his written argument, that the council "simply returned" her application form. It is true that it did return it. But it did so in circumstances when, as Mrs Ladd herself knew, she was refusing to attend an assessment which (as she knew) the council was requiring, that being (although admittedly not precisely) explained in written reasons given to Mrs Ladd in accordance with the council's then policy. That policy itself in general terms accorded with the Department of Transport guidance, the rationale for which is clear.

Thirdly I have great difficulty with the notion that it was in fact impossible or impracticable or unreasonably difficult for Mrs Ladd to attend the assessment centre. It certainly was not impossible. She could have attended. She could drive. Indeed she had previously driven there. She could walk sufficiently far for her to get into her own car. She gave evidence before the District Judge that she was a regular visitor to the Royal Opera House in Covent Garden and for that purpose would drive into Central London, park nearby and then walk to the Opera House itself. The Civic Centre, as the correspondence stated, had disabled car parking bays, less than 30 yards from the Civic Centre entrances, and wheelchairs were also available. Indeed her own doctor had made such a suggestion of a visit to the Centre if that was needed. It was entirely possible for Mrs Ladd to go there for assessment. The real difficulty was that she did not see why she should.

Mr Greatorex, however, did submit that the judge seemed to have found that it was unreasonably difficult for Mrs Ladd to attend the Civic Centre. If he did so find, the District Judge did so obscurely and without any reasons being given. I will come back to that point.

I turn then to the claim as formulated under Section 21D(1), with which the District Judge did not obviously deal.

It has to be asked, given all the circumstances: where is the discrimination for the purposes of section 21D(1)? It is to my mind very difficult indeed to identify any "less favourable treatment". What was pleaded, as I have said, was the council's alleged “insistence” that Mrs Ladd undergo assessment at home. That, as I have indicated, is not borne out on the evidence. Mr Greatorex sought to depart from that pleaded case in argument, but I think, not least given the way the Respondent's Notice was pleaded, that he should not be permitted to do so. The matter should be confined to the way in which it was dealt with before the District Judge below.

Indeed at one stage Mr Greatorex sought to say that what it came down to was treating all disabled people equally badly. That is an assertion again not the subject of the argument or pleaded case below. I repeat the council had never insisted that Mrs Ladd be assessed at home (the implication behind the allegation presumably being that that was unfavourable or prejudicial to her as involving an invasion of her privacy). On the contrary the therapist had been invited there as part of a sensible arrangement to forestall the judicial review proceedings and which, exceptionally, the council was prepared to agree.

In any event no statutory comparator can be identified. Mr Greatorex's argument below, as I understand it, following his pleaded case in paragraph 27 of his Particulars of Claim was that the comparison for the purpose of Section 21D(1)(a) was with a person able to attend the Civic Centre for an assessment. But that, in my view, simply does not accord with the principles laid down by the House of Lords in Lewisham BC v Malcolm [2008] 1 AC 1399. That decision, it is fair to say, is regarded as controversial in many quarters and indeed has now been overtaken by the provisions of the Equality Act 2010. Nevertheless it is a decision which was binding on the District Judge and is binding on this court.

As far as one can see, the true comparator by reference to the case pleaded below would seem more obviously to have been an applicant for a Blue Badge unable to attend the Centre for assessment for a reason unrelated to a disability; or perhaps an applicant who has some other relevant disability benefit unable to attend the centre for assessment for a reason unrelated to her disability. That was the submission of Mr O'Dair and I agree with it. But there was no evidence adduced that there were any such persons who would be so treated differently. On the contrary, under the council's policies, all were to be treated in the same way. Indeed it may be noted that there was undisputed evidence given at trial by Mr Roberts, a council officer whose evidence the judge had accepted, that in point of fact Mrs Ladd had been the only person to raise an objection to the requirement to be assessed at the Centre or who had claimed to be unable to comply. Indeed relevant disability user groups had indicated to the council they were strongly supportive of the council's policy just because of concerns of abuse of the Blue Badge process.

Turning then to the claim formulated by reference to section 21D(2) and section 21E, to the extent that the District Judge seems to have found, without any elaboration at all, on this part of the case that there had been discrimination by reference to section 21E, that in my view is not sustainable on the evidence as advanced at trial. It is to be noted, first of all, that section 21E(1), in contrast with section 21D(2), is directed at prejudice arising for disabled persons in the plural: that is to say, it connotes that there has to be some kind of group. It is not directed at difficulty for a single disabled person. In the present case there was no evidence or finding by the District Judge that, as a group, applicants for Blue Badges would find it impossible or unreasonably difficult to attend the centre for independent assessment or that unreasonable adversity arose from the policy of requiring such attendance for assessment. Indeed, although it is not perhaps strictly relevant, I repeat that the evidence showed that it was not impossible for Mrs Ladd herself so to attend.

The reality seems to have been that, as Mr Roberts said in evidence and as the judge himself seems to have accepted, Mrs Ladd's situation was "unique". Mr Greatorex nevertheless submitted that, at all events by inference, the District Judge had impliedly found as a fact that it was unreasonably difficult for Mrs Ladd herself and he says that can be extracted from the way in which the District Judge expressed himself in paragraph 75 of his judgment. He went on to submit that it could be inferred from that that, if it was unreasonably difficult for her, it was likewise unreasonably difficult for persons in a position similar to her: namely those having grave difficulty in walking and experiencing pain when they did so.

For this purpose Mr Greatorex pointed to a decision of a constitution of this court in the case of Roads v Central Trains Limited [2004] EWCA Civ 1541. The facts and context of that case are very different from the present case. Amongst other things it may be noted that Sedley LJ said this in paragraph 11 of his judgment by reference to section 21 of the Act and dealing with public bodies:

“They cannot be expected to anticipate the needs of every individual who may use their service, but what they are required to think about and provide for are features which may impede persons with particular kinds of disability...”

The need for there being at least a class of persons was emphasised. At paragraph 26 Sedley LJ said this :

“I do accept, however, that it is not necessary, in order to trigger the section 21(2) duty, for the feature in question to cause unreasonable difficulty for all or most disabled persons: any significant impact on, say, wheelchair users as a class will in my judgment suffice. The question may often have to be answered without reference to direct evidence from which some kind of statistical analysis can be made: indeed the assembly of such evidence, whether pro or con, may well be invidious or arbitrary and therefore an inappropriate exercise to attempt. Judges are likelier to be assisted by their own appraisal and, where necessary, expert evidence.”

And then at paragraph 28 Sedley LJ stated that the judge had found the issue finely balanced, but noted his conclusion that the claimant, Mr Roads, would have found it unreasonably difficult to use the station main route and concluded that that finding was founded on reasoning which was equally applicable to disabled persons, in that case the class of wheelchair users.

Mr Greatorex sought to say that that approach as indicated in paragraph 28 can and should be adopted here, and it can be taken as an inference drawn by the District Judge from Mrs Ladd's own situation that persons in her position would likewise have experienced unreasonable difficulty and so come within the ambit of section 21E.

But in my view, having regard to the evidence adduced, that is not the side of the line that this case could fall on. Mr O'Dair challenged the judge's conclusion on that, and I think he was justified in doing so. The judge certainly gave no reasons to seek to support his conclusion in that regard. It may be said that the lack of reasons given are reflective of the fact that there were no reasons that could properly be given to support such a conclusion. This was indeed a unique case. Certainly no suggestion was made in evidence, and there was no supporting evidence, that others in a comparable position to Mrs Ladd (if there were others of that kind) had in fact experienced any difficulty in attending the centre for assessment.

It may also be noted that people of the kind whom Mr Greatorex has sought to identify might well be automatically entitled to a Blue Badge under the regulations. Mrs Ladd was herself in a most unusual situation, given that she was a person who notwithstanding her severe disablement was not receiving benefits and was not entitled to an automatic issue of a Blue Badge.

All that, I think, is sufficient to dispose of this formulation of the claim. But in any event I would accept Mr O'Dair's further submission that the District Judge went wrong in another way. He did not properly address at all what was reasonable (viz. in relation to the policy of requiring assessment) from the council's point of view: in particular the need to deter fraud and the general good sense in following the Department of Transport Guidelines. Mr Greatorex stressed that those guidelines do not require or mandate independent assessment in all cases and moreover they are only guidelines. That is true. But there is a clear rationale for the council being minded to adopt this approach. Moreover relevant circumstances would include the need for the council to adopt a workable and economic administration scheme and in circumstances where access to the Centre was not otherwise difficult.

Moreover, to the extent that Mr Greatorex sought to say staff could easily contact GPs in an appropriate case, not only does that not sit well with the general guidance given by the Department of Transport but it also raises difficult issues as to how untrained staff are to handle conversations with medical practitioners. Further the District Judge's very reference in paragraph 75 of his judgment to "consideration" does not meet these points at all. Thus there was ample reason for the council to decline to renew the Blue Badge in the absence of an independent assessment and ample reason (for reasons really reflecting what is said in the Department of Transport guidance for the council), not simply to rely on what the general practitioner asserted. The points sought to be made in paragraph 30 of the Particulars of Claim are in effect assertions which were not borne out by the evidence. Indeed one only has to have regard to the third point in paragraph 30 of the Particulars of Claim relied upon as constituting a reasonable adjustment, namely that the council could have called at the claimant's door to confirm her identity, to see that it must be rejected.

It is in any event a point of the strongest comment that the council in this particular case was indeed prepared in all the circumstances to adjust its policy by agreeing on invitation, and exceptionally, to attend Mrs Ladd's home for assessment on 18 March 2010: which is what it then duly did. So it had shown itself prepared to depart from its policy with regard to a person in Mrs Ladd's position.

In conclusion my view is that the District Judge's finding of discrimination cannot be sustained and I would for my part allow the appeal.

I revert to where I started. There can sometimes be a fine dividing line between a commendable desire to vindicate individual legal rights as against a powerful public body on the one hand and intransigent obduracy on the other hand. I say nothing critical at all about the threat to issue judicial review proceedings. But once that threat had resulted in an agreed visit to Mrs Ladd’s home for assessment and the issue of a Blue Badge it seems to me that this claim,when started, falls into the second category. In the result this litigation will not only have been of no profit to Mrs Ladd. It will also have given rise to significant costs both in time and in money to the London Borough of Bromley, which financial costs in part at least will have to be visited upon the luckless local taxpayers. At all events I would allow the appeal and will hear counsel as to what order for costs should be made below and any other consequential matters. It is perhaps something of an irony that we were today told that Mrs Ladd is now no longer driving, even if a Blue Badge may still assist in parking arrangements generally.

I agree in the result and I agree with my Lord's reasons in relation both to section 21D and section 21E of the Disability Discrimination Act 1995. I also share the sentiments as to the underlying nature of this litigation.