Access to Justice - Research Report June 2016

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Contents

1. Introduction..........................................................................32. Background to this research..............................................33. Methodology........................................................................54. Findings................................................................................64.1 Physical, Communication and Accessible Information barriers.....................................................................................64.2 Financial barriers...............................................................74.3 Capabilities and accessibility of Scottish Law Firms.....84.4 Awareness of legal rights...............................................104.5 Routes to justice..............................................................115. Law Centres in Scotland...................................................176. Meeting eiht the Scottish Government and the Scottish Legal Aid Board Next steps and recommendations...........187. Next steps and recommendations...................................19Annex 1...................................................................................21Annex 2...................................................................................23Annex 3...................................................................................27

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1. Introduction

The ILiS project works with the Scottish Government, disabled people and other key stakeholders on the strategic interventions that make equality and human rights the reality for disabled people in Scotland.

The Solutions Series: “Justice is served? Disabled people’s access to justice” think tank took place on 3rd December 2014. This led to further discussion about disabled people being able access justice under the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and to this work, reaching out to decision makers and service providers.

This research aimed to address the denied justice for disabled people by establishing why there are so few disability discrimination cases progressing through Courts and Tribunals in Scotland. ILiS explored; the preparedness and knowledge of Scottish law firms in being inclusive to disabled people; if the Scottish law firms were ready and able to provide disability discrimination advice to disabled people; and if they were accessible not only to disabled people but also to disabled legal professionals. We also explored the number of disability discrimination cases in Employment Tribunals, the Additional Support Needs Tribunals for Scotland and the Sheriff Courts, as well as other barriers whether physical or otherwise.

Our recommendations are at section 6, below.

There are additional and more in depth analysis or recommendations in this version which we have highlighted.

ILiS prepared this research report to support dialogue between ILiS, Scottish Government and SLAB with the objective of creating a network of law centres and lawyers who specialise in disability legal issues as well as eventually, a Disability Law Centre in Scotland.

2. Background to this research

The Independent Living in Scotland (ILiS) project has researched the barriers to Access to Justice for disabled people. The research focused on the accessibility and inclusion of disabled people and the barriers

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they face in accessing civil justice and redress disability discrimination law in the Scottish Justice system.

The research focuses on civil justice because we know that disabled people face multiple discrimination in their daily lives which breaches their rights to equal and participative citizenship – as consumers, employees, patients, learners and in many other ways. There is a wealth of anecdotal evidence collected by DPOs directly from disabled people which amply illustrates the prevalence of discrimination in their daily lives and the impact of this. We are happy to supply or signpost examples of this.

That said, disabled people do have rights, as citizens and as disabled people. These include rights to; equality and not to be discriminated against; fair and equitable treatment in employment, education and a minimum standard of living; and rights not to experience abuse, hate crime and harassment. Such rights are protected, promoted and progressed in various ways including in laws, in policies, by practices and by regulation and scrutiny.

The Equality Act 20101, the Human Rights Act 19982, Hate Crime laws3, the Patients’ Rights Act4, the Scotland Act 20125, the United Nations Convention on the Rights of Disabled People (UNCRPD)6 and others all set out these rights. Having such protection in the law is not simply welcome it is an essential part of underpinning the equality and human rights of disabled people.

As one in five people in Scotland are disabled, the judicial system needs to be accessible and inclusive. There is a huge impact on disabled people not being able to access justice as their human rights are being breached under Article 13 of the United Nations Convention of the Rights of Persons with Disabilities (UNCRPD). Breaking down the barriers to disabled people accessing justice, will not only be an improvement for individuals but also for society as a whole.

Disability discrimination claims take place in the Employment Tribunals, the Additional Support Needs Tribunals for Scotland (ASNTS) and the

1 http://www.legislation.gov.uk/ukpga/2010/15/contents2 http://www.legislation.gov.uk/ukpga/1998/42 3 http://www.legislation.gov.uk/asp/2009/8/contents4 http://www.scotland.gov.uk/Topics/Health/Policy/Patients-Rights 5 http://www.legislation.gov.uk/ukpga/2012/11/contents/enacted 6 http://www.un.org/disabilities/convention/conventionfull.shtml

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Sheriff Courts. However, we are conscious that there is a dearth of case law and use of the legal system for redress for and by disabled people.

Disabled people have previously asked the Scottish Government to commit to focus on access to justice in its UNCRPD Draft Delivery Plan. These asks are based on similar anecdotal evidence collected specifically for this purpose, and presented ahead of the Scottish Government’s development of its’ UNCRPD Draft Delivery Plan.

These asks include: Set up a network of Disability Law Centres, supported by a

National Disability Law Centre. Research and address issues which halt disability discrimination

cases. Develop a directory of legal services for disabled people. Ensure that the support that disabled people need is readily

available when navigating the justice system e.g. Social Care, communication support etc.

Improve and fund access to language / communication support in civil cases.

Develop capacity for Disabled People’s Organisations locally so that they can help ensure justice for disabled people.

Improve accessible information on individual rights for disabled people in the justice system.

Address physical barriers to accessing legal services and courts etc.

Address communication barriers which prevent disabled people from accessing their legal rights and being treated equally in the justice system.

Raise awareness amongst disabled people and groups on how to access the justice system.

(See Annex 1 for the full lists of asks relating to Justice.)

3. Methodology

Desk research formed the backbone of this research project as done to gather and collate appropriately. The research also entailed contacting the Scottish Courts and Tribunals Service besides the HM Courts and Tribunals Service to determine the number of disability discrimination cases taking place in Scotland. 

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A survey was sent out to law firms across Scotland which offer legal advice in respect of disability discrimination law. The aim of the survey was to help us determine the current capability and preparedness of Scottish law firms in accommodating disabled clients and disabled legal professionals.

A copy of the Survey is at Annex 2.

4. Findings

4.1 Physical, Communication and Accessible Information barriers

Not all law firms or their services are accessible to disabled people. There are many reasons for this. One is that the premises do not comply with accessibility standards in general, and also that some of the premises may fail to make reasonable adjustments to enable potential and existing disabled clients to access their services. Additionally, some law firms may not be providing information in accessible formats such as a website which adheres to international accessibility standards.

The specific reason/s for these failures could be that law firms do not understand the nature of accessibility, what the reasonable adjustment duty entails or how to comply with it in practice.7 Other reasons could be financial on the basis that they do not have the money to make adjustments to the premises or because the solicitors do not expect to have disabled people as clients or employees.

If law firms do fulfil their duties as service providers and ensure that reasonable adjustments are in place they may not have made disabled people aware that they are available.8 It may be the case that some law firms and law centres have few resources in order to provide accessible services or reasonable adjustments to disabled people.9

7 House of Lords Select Committee on the Equality Act 2010 and Disability (2016) The Equality Act 2010: the impact on disabled people [pdf] Available at: http://www.publications.parliament.uk/pa/ld201516/ldselect/ldeqact/117/117.pdf [Accessed 24 May 2016]8 Henery, I. (2007) Disabled from suing? The Journal [online] Available at: http://www.journalonline.co.uk/Magazine/52-2/1003859.aspx [Accessed 12 Apr. 2016]9 Flynn, E. (2015) Disabled Justice? Access to Justice and the UN Convention on the Rights of Persons with Disabilities

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Courts and Tribunals have also proven to be inaccessible to disabled people due to being physically inaccessible in terms that there is no suitable step-free routes within a building etc. In addition, there was a communication barrier in some Courts and Tribunals because the loop system was not readily available or was not functioning.

In conclusion, the Scottish Government has clarified that the legal requirement for physical access to justice buildings has improved over recent years and therefore, this should be less of a barrier to disabled people. In contrast, law firm buildings are not regulated by a body which means that they may not have same motivation to adhere to physical access under the Equality Act 2010. In some cases law firms are unclear of their legal duty how to make premises accessible to disabled people. In addition, if the law firms are small they are more likely to have a limited budget in order to implement the changes need to make premises accessible. Whereas large law firms should ensure that their premises are physically accessible to disabled people since it is expected that they will have larger resources.

In respect of communication and accessible information barriers some of the Courts and Tribunals have not provided reasonable adjustments because the staff did not understand their duty under the Equality Act 2010. The other reason is that some of the equipment needed for the accessible communication did not work or accessible information was not provided. Sometimes it can be the case that accessible communication is not in place since a palantypist or BSL interpreter is not available. Likewise, in law firms the staff may be unaware of their anticipatory duty to ensure that have basic reasonable adjustments in place.

We recommend that more research is done to establish prevalence and the root causes of this.

4.2 Financial barriers

Financial barriers to justice affects many people in society, but particularly disabled people. The introduction of fees for all cases has prevented many disabled people, who are more likely to live in poverty than non-disabled people, from bringing valid Employment Tribunal claims.10 The cost of issuing a discrimination claim is £250 and a further

10 Equality and Human Rights Commission (2015) Equality, human rights and access to civil law justice: a literature review [online] Available at:

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cost of £950 if the case proceeds to a hearing is a clear deterrent to many disabled people.11 The level of fees being charged in the Employment Tribunal is greater than fees charged in other Courts across Scotland.12

The House of Lords report: “The Equality Act 2010: the impact on disabled people” suggests that the number of restrictions allowing disabled people to access justice has been increased. It highlights that tribunal fees and changing the costs rules are having a negative impact on disabled people.13

In conclusion, disabled people face a financial barrier in accessing justice because the cost of going to Court has increased and there is less financial help to do it. Disabled people may be able to access free legal advice. However, not many lawyers offer pro-bono services and even fewer have the expertise knowledge surround disability legal issues. Therefore, disabled people have few avenues to turn to in respect of accessing justice.

ILiS suggests that this is taken into account by the Scottish Government and SLAB when / if Employment Tribunals are devolved to Scotland.

4.3 Capabilities and accessibility of Scottish Law Firms

Our research identified that solicitors in general lack the sufficient knowledge, training and awareness to fully address the legal issues that disabled people and their carers face.14

A survey was sent out to a small sample of 21 law firms across Scotland. The sample was chosen from firms listing themselves on Law Society of Scotland website as offering legal advice in respect of disability under consumer and civil rights, and presenting a reasonable spread of size-of-

http://www.equalityhumanrights.com/sites/default/files/publication_pdf/Equality%20human%20rights%20and%20access%20to%20civil%20law%20justice_0.pdf [Accessed 24 May 2016]11 GOV.UK (2014) Make a claim to an employment tribunal [online] GOV.UK Available at: https://www.gov.uk/employment-tribunals/make-a-claim [Accessed 24 May 2016]12 House of Lords Select Committee on the Equality Act 2010 and Disability (2016) Oral and Written Evidence – Law Society of Scotland [pdf] Available at: http://www.parliament.uk/documents/lords-committees/equality-act/equality-act-and-disability-committee-evidence.pdf [Accessed 30 Mar. 2016]13 House of Lords Select Committee on the Equality Act 2010 and Disability (2016) The Equality Act 2010: the impact on disabled people [pdf] Available at: http://www.publications.parliament.uk/pa/ld201516/ldselect/ldeqact/117/117.pdf [Accessed 24 May 2016]14 Flynn, E. (2015) Disabled Justice? Access to Justice and the UN Convention on the Rights of Persons with Disabilities

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firm and geographies. The survey was sent out to law firms in the 20 Local Authority areas (see list at Annex 3). The survey aimed to demonstrate the current capability and preparedness of Scottish law firms to meet the needs of disabled clients and disabled legal professionals.

The survey included questions about accessibility, marketing, their clients who are disabled people, types of cases and training. (See Annex 2).

The law firms were emailed the survey and given a deadline date of 13 th May 2016 to complete the survey. A week before the deadline the law firms were emailed to remind them of the approaching deadline to complete the survey. The volume of the responses, however, was very low at 5% - 1 respondent.

Failed to respond88%

Responded 5%

Could not respond7%

Fig 1. Law Firms Responded to the Survey

Failed to respond Responded Could not respond

Two of the law firms (7%) stated that they could not respond to the survey. One stated that they no longer practiced litigation work and the other stated that they did not have an Employment Solicitor. This is despite the survey also specifying cases in Sheriff Courts and Additional Support Needs Tribunals.

This is clearly very disappointing and it means that it is not possible, based on these findings, to take an illustrative vox pop of the capabilities and accessibility of Scottish Law firms. However, it is evident that the

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majority of law firms who failed to answer the survey do not consider the needs of disabled clients or legal professionals to be important.

The little evidence we do have lends itself to recommending that firms review their Law Society listing and that similar research is undertaken on a larger, more formal and more robust footing.

4.4 Awareness of legal rights

Existing evidence highlights that disabled people may not realise that they have been subjected to disability discrimination or how to materialise these rights, including through legal redress under the Equality Act 2010.15 Some disabled people may not be conscious that that the daily obstacles they face in respect of accessibility, charges etc. are simply unlawful. They may not be aware that a legal remedy exists or that a solicitor can help them with their situation if they feel that they have suffered discrimination.16

Furthermore, disabled people may still refer to the Disability Discrimination Act 1995 instead of the Equality Act 2010.17 Where disabled people do have the awareness of their legal rights, they do not always know where to go for advice on this or what area of law their issue falls under. Similarly, they do not always frame their concerns in terms of ‘equality and human rights’.

Article 8 of the UNCRPD states that the countries must raise the awareness of the legal rights of disabled people. We therefore recommend that more is done to ensure that disabled people are aware of their rights and including their rights to legal redress and that their capacity and confidence to use this is increased.

4.5 Routes to justice

15 House of Lords Select Committee on the Equality Act 2010 and Disability (2016) The Equality Act 2010: the impact on disabled people [pdf] Available at: http://www.publications.parliament.uk/pa/ld201516/ldselect/ldeqact/117/117.pdf [Accessed 24 May 2016]16 House of Lords Select Committee on the Equality Act 2010 and Disability (2016) The Equality Act 2010: the impact on disabled people [pdf] Available at: http://www.publications.parliament.uk/pa/ld201516/ldselect/ldeqact/117/117.pdf [Accessed 24 May 2016]17 House of Lords Select Committee on the Equality Act 2010 and Disability (2016) The Equality Act 2010: the impact on disabled people [pdf] Available at: http://www.publications.parliament.uk/pa/ld201516/ldselect/ldeqact/117/117.pdf [Accessed 24 May 2016]

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In Scotland there are a few routes to justice in the area of civil law open to disabled people. Cases can be taken to the Employment Tribunal for disability discrimination Employment cases, to the Additional Support Needs Tribunal for cases involving disability discrimination cases in schools and to the Sheriff Courts for other disability discrimination cases.

Under the Scotland Act 2016 the Employment Tribunals and Employment Appeal Tribunals are likely to be devolved to Scotland. This means that the Scottish Tribunals will take on Scottish cases where the defender or one of the defenders lives or carries on business in Scotland. In addition, an employee employed by a UK-wide employer which carries out part of its operations in Scotland is qualified to raise a claim in the Scottish Employment Tribunal.18

Both the Sheriff Court and the Employment Tribunal present institutional barriers due to the formalities and the way they work.19 Problems may arise where disabled litigants are unable to understand papers that they are sent for an Employment Tribunal case or a Sheriff Court case because they are not accessible to them.20 Attitudinal barriers left disabled people feeling that they were not taken seriously by the staff in the justice system. In addition, there was a general feeling that some justice staff did not understand their duty as a service provider to make reasonable adjustments. Some disabled people highlighted that they had asked in advance for reasonable adjustments to ensure that they could participate in the proceedings and that staff had reacted with negatively.21

The number of disability discrimination complaints received in Employment Tribunals in Scotland are show below in Table 1.22

Table 1.

Year Number of Disability 18 Napier, B and Mitchell, J. (2015) Employment Tribunal fees – a new Scottish dimension. [Blog] Cloisters – Employment. Available at: http://www.cloisters.com/latest/employment-tribunal-fees-a-new-scottish-dimension [Accessed 24 May 2016]19 Capability Scotland (2009) 1 in 4 Poll on the Scottish Justice System20 House of Lords Select Committee on the Equality Act 2010 and Disability (2016) Oral and Written Evidence – Discrimination Law Association [pdf] Available at: http://www.parliament.uk/documents/lords-committees/equality-act/equality-act-and-disability-committee-evidence.pdf [Accessed 24 May 2016]21 Capability Scotland (2009) 1 in 4 Poll on the Scottish Justice System22 Tribunals and Gender Recognition Statistics Quarterly: October to December 2015 Annex C: Employment Tribunal Receipts tables [online] Available https://www.gov.uk/government/statistics/tribunal-and-gender-recognition-statistics-quarterly-october-to-december-2015 [Accessed 24 May 2016]

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Discrimination Complaints received in ETs in Scotland

2012 5332013 4392014 2682015 254

201236%

201329%

201418%

201517%

Fig 5. Percentage of Disability Discrimination Complaints received in Scottish Employment Tri-

bunals

2012 2013 2014 2015

The number of disability discrimination complaints received in the Employment Tribunal in Scotland has steadily decreased over the years since 2012. This may a combination of reasons as to why disabled people are not raising their disability discrimination complaints at the Employment Tribunal. They may be that their claim is resolved through the Advisory, Conciliation and Arbitration Service (ACAS), they drop their claim due to fees, and they are advised to not take the claim forward by solicitors because they do not have enough evidence.

Many disabled people have multiple protected characteristics and the discrimination they face may be based on two or more such characteristics. However, at present, disabled people are unable to take dual discrimination claims under the Equality Act 2010 since the

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appropriate section has not been brought into force.23 Therefore, the solicitors of disabled people who have faced multiple discrimination are instead pursuing cases where there is stronger evidence for one protected characteristic.24

Since May 2014 anyone wishing to make a claim to an Employment Tribunal must go through ACAS first, provided that both parties agree to participate in the conciliation process. In 2014 -2015, over 83,000 cases were notified to ACAS including about 6,900 cases involving possible disability discrimination. Both parties agreed to participate in early conciliation in 75% of cases and only 18% of cases led to a tribunal claim. The figures from ACAS illustrate that disability discrimination claims can be resolved before they get to the Employment Tribunal. They also show that 15% of conciliation cases for disability discrimination result in a settlement, 63% do not result in a settlement or progression to Tribunal. The final 22% of conciliation cases do not progress to the Tribunal and the most common reason for not proceeding is fees.25

The Additional Support Needs Tribunals for Scotland can hear and decide claims of disability discrimination relating to disabled pupils in school education under the terms of the Equality Act 2010, Schedule 17, Part 3. The Additional Support Needs Tribunals dealt with five disability discrimination claims during the reporting year of 2014 and 2015. In the previous reporting year there were twelve claims made.26 This number is judged by ILiS to be low taking into consideration the anecdotal evidence from disabled people.

23 House of Lords Select Committee on the Equality Act 2010 and Disability (2016) The Equality Act 2010: the impact on disabled people [pdf] Available at: http://www.publications.parliament.uk/pa/ld201516/ldselect/ldeqact/117/117.pdf [Accessed 24 May 2016]24 House of Lords Select Committee on the Equality Act 2010 and Disability (2016) The Equality Act 2010: the impact on disabled people [pdf] Available at: http://www.publications.parliament.uk/pa/ld201516/ldselect/ldeqact/117/117.pdf [Accessed 24 May 2016]25 House of Lords Select Committee on the Equality Act 2010 and Disability (2016) The Equality Act 2010: the impact on disabled people [pdf] Available at: http://www.publications.parliament.uk/pa/ld201516/ldselect/ldeqact/117/117.pdf [Accessed 24 May 2016]26 Dunsmuir, M. (2015) Additional Support Needs Tribunals for Scotland 10th Annual Report [online] Available at: https://www.asntscotland.gov.uk/sites/default/files/files/ANNUAL%20REPORT%202014-2015.pdf [Accessed 24 May 2016]

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2010/20112%

2011/201214%

2012/201343%

2013/201429%

2014/201512%

Fig 2. Percentage of Disability Discrimination Claims received at the Additional Support Needs

Tribunals in Scotland

2010/2011 2011/2012 2012/2013 2013/2014 2014/2015

Prior to 2012, the Equality and Human Rights Commission’s Helpline provided advice to people who believed that they had experienced discrimination (or human rights abuses in England only). This was replaced with the Equality and Advisory Support Service which is a government-funded helpline providing information, advice and support on discrimination and human rights issues. The Equality and Advisory Support Service cannot provide legal advice.

The following tables show the sources and types of discrimination which disabled people called the helpline about.

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No value5%

Employment52%

Services and Public Functions30%

Premises4%

Education8%

Associations0% Public Sector Equality Duty

1%

Fig 3. Calls from Disabled People in Scotland to the Equality Advisory Support Service from October 2012 -

May 2016

No value Employment Services and Public FunctionsPremises Education AssociationsPublic Sector Equality Duty

From Fig. 3 above it can be stated that the majority of the calls from disabled people in Scotland were in respect of Employment issues at 52%. 30% were calls in respect of Services and Public Functions.

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No Prohibited Conduct20%Direct Discrimination

8%

Indirect Discrimination 1%

Discrimination Arising from Disability

22%Failure to make a Reasonable Ad-justment

40%

Harassment4%

Victimisation0%

Breach of Public Sector Equality Duty1%

Other2%

Fig 4. Type of conduct calls from Disabled People in Scot-land to the Equality Advisory Support Service from Octo-

ber 2012 - May 2016

No Prohibited Conduct Direct DiscriminationIndirect Discrimination Discrimination Arising from Disability Failure to make a Reasonable Adjustment HarassmentVictimisation Breach of Public Sector Equality DutyOther

Fig 4. illustrates that between the years of October 2012 – May 2016 that the majority of the calls were about the failure to make a reasonable adjustment. 23% of the calls were about discrimination arising from disability and 8% were about direct discrimination. This highlights that callers still face disability discrimination.

Overall, it can be stated that the Sheriff Courts and Employment Tribunals may be inaccessible to disabled people due to the regulations and the format of the Court or Tribunal documentation. The number of disability discrimination complaints received in the Employment Tribunal is lower than in 2012. This is because there are barriers to disabled people being able to raise claims in the Employment Tribunal. This is because of the fees in Employment Tribunals and that the disability discrimination claims are largely resolved through conciliation before reaching the Employment Tribunal. In addition, the number of disability discrimination claims heard at the Additional Support Needs Tribunals for Scotland is low too. Suggesting that a few disabled pupils do not know that they can raise a claim against the local authority when they face disability discrimination. The Equality and Human Rights Commission’s Helpline data shows that reasonable adjustments and direct discrimination are still faced by disabled people.

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5. Law Centres in Scotland

There are eleven law centres in Scotland which provide legal advice to specific groups or communities of people and/or to certain geographical areas of Scotland. Six law centres provide legal advice to clients across the whole of Scotland whilst others provide legal advice only in specific geographical areas. The majority of the law centres provide legal advice in the respect of Housing, preventing Homelessness, Welfare Benefits, and Mortgage Repossession. Others provide legal advice only in respect of Immigration law, Asylum, Human Rights, Discrimination law and Employment law. These law centres have a proven track record in supporting their specific clientele, raising awareness and building expertise.

However, there are no law centres that provide legal advice tailored specifically to the needs of disabled people across Scotland. This means that disabled people are not able to access justice in the same way as many other dis-advantaged groups because there is no law centre that offers legal advice for disability discrimination or other legal advice that disabled people may need.

London’s Disability Law Service offers disabled people in the vicinity of Greater London legal advice in the respect of Community Care, Disability Discrimination, Employment Law and Welfare Benefits. It also has a Multiple Sclerosis Legal Line funded by the MS Society which provides free confidential legal advice to people affected by Multiple Sclerosis in both England and Wales.27

New Zealand launched a disability law centre in 2008. Like Scotland, New Zealand has a relatively small population, in which 1 in 4 people are disabled.28 The Auckland Disability Law centre was set up to meet the “unmet legal needs of disabled people” and to address wider access to justice issues faced by disabled people. The legal case work primarily involves disability discrimination and the law centre handles over 200 cases every year.29 27 Disability Law Service, (2015) Free Advice at DLS. [online] Available at: http://www.dls.org.uk/ [Accessed 24 May 2016]28Statistics New Zealand, (2014) Disability Survey: 2013. [online] Available at: http://www.stats.govt.nz/browse_for_stats/health/disabilities/DisabilitySurvey_HOTP2013/Commentary.aspx#oneinfour [Accessed 24 May 2016]29 Borissenko, B. and Greenland, J. (2016) Access to justice for our most vulnerable: Community Law in Aotearoa. Law Talk, (880), [online] Available at: https://issuu.com/nzlawsociety/docs/lawtalk_880_web [Accessed 24 May 2016]

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In conclusion, the law centres in Scotland do not provide legal advice for disability issues. This means that solicitors have little knowledge in disability discrimination law and other disability issues. Therefore, disabled people do not have many options in choosing who to approach for legal advice in respect of disability issues. Both the Disability Law Service in London and the Auckland Disability Law centre in New Zealand could be considered for research into developing a Disability Law Centre in Scotland.

It is deeply concerning that Scotland has no specialist law provision for disabled people. Such a centre would support the Scottish Government to progress their obligations under Article 13 of the UNCRPD. ILiS has previously presented papers which support this step and which have set out some modelling of either a law centre or a network of DPOs and lawyers to inform, help and represent a marginalised part of society.

6. Meeting with Scottish Government and Scottish Legal Aid Board

A meeting between the ILiS project, the Scottish Government and the Scottish Legal Aid Board took place on Tuesday 31st May 2016. This led to further discussion about access to justice for disabled people.

The future action points that were discussed were: Use the Justice Ministry Advisory Group for the planned

roundtable. The Scottish Government will look at the potential for ILiS/Disabled

People’s Organisation to feed into a future review of the Access to Justice Grant Funding.

ILiS will contact the Scottish Association of Law Centres for further evidence on barriers to disabled people accessing justice.

ILiS will contact the Law Society of Scotland Equality and Diversity Committee for research into possible barriers.

The discussion focussed on several key areas in respect of the Access to Justice project. They were:

Discussion on potential new structures – in a time of austerity there is no room for new niche structures or supports. Any new solution or structure for a Network or Law Centre would need to

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have a wider focus rather than focusing solely on disability or civil law. It is unlikely that there will be funds for a new Disability Law Centre in Scotland.

Research – The Scottish Government stated that there is a wealth of evidence around physical access to buildings for justice and that as it is a legal requirement it has improved over recent years. The Scottish Government stated that there needs to be a real need for research in order for further research to be carried out.

Law Centres in Scotland – IliS will find out what the existing Law Centres in Scotland are doing in terms disability discrimination law through the Scottish Association of Law Centres.

7. Next steps and recommendations

The recommendations outlined above could be made to work in isolation if necessary, or together as part of a combined approach towards making change happen.

List of recommendations

Following analysis of our research, we recommend;

Set up a roundtable event in partnership with disabled people for key stakeholders in the near future to scope further research, discuss the findings of this research and plan for solutions, in the short and longer terms.

Commission deeper research into the barriers to access to justice for disabled people should be commissioned which focuses on the root causes demonstrated in this paper and solution modelling.

Further research should be commissioned to look into softer barriers to access to justice such as physical access, communication access, accessible information, fear and lack of capacity, lack of confidence, Public Sector Duty obligations under the Equality Act 2010 as well as the attitudinal barriers.

Revise upward and outwards the actions for justice in the final Scottish Government UNCRPD Delivery Plan in coproduction with disabled people.

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Creation of a national law network which provides information on where to find legal advice or assistance in either civil as a first step (and possibly extending this to criminal law if useful)

Follow delivery of the above network, working to create a Disability Law Centre for Scotland which would provide legal advice and assistance to disabled people in respect of their rights to equal opportunities and human rights, and their rights to non-discrimination.

Map the current capabilities and preparedness of legal services in Scotland and provide signposts to these.

Work with providers of law services to challenge them to increase, improve and promote their services for disabled people and to ensure that these are affordable, accessible and inclusive.

Work with and resource DPOs to raise awareness amongst disabled people about their rights and routes to justice and build their confidence, capacity and capabilities to use the justice system.

Develop data gathering and analysis frameworks to better monitor and therefore manage and learn from, the disability discrimination cases progressing through the Sheriff Courts

We have not suggested who could or should be responsible for such actions as this is likely to be varied and dialogue on their potential and accuracy in terms of the solution will likely include who could take action.

Laura Murdanaigum and Heather Fisken 6th June 2016Contact: Heather Fisken, Project ManagerEmail: heather@ilis.co.uk

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Annex 1

Extract from list of disabled peoples’ asks of Scottish Government for inclusion in the draft Delivery Plan on the UNCRPD (see page 27, word version, ILiS toolkit - http://www.ilis.co.uk/get-active/2015-uncrpd-consultations-by-scottish-government-and-cosla)

Justicea)Set up a network of Disability Law Centres, supported by a National

Disability Law Centre.b)Develop a directory of legal services for disabled people.c)Review (with DPOs) communication support and accessibility in the

criminal justice system.d)Remove fees for Tribunals.e)Make it possible for the SHRC to take cases and/or that the EHRC

can take human rights only cases in Scotland (as well their existing powers on equality cases).

f) Ensure the support people need e.g. Social Care, communication support and so on, is readily available when navigating the justice system.

g)Develop capacity for Disabled People’s Organisations locally so that they can help ensure justice for disabled people.

h)Improve protection from harassment, and reporting, prosecution and monitoring of it, including by promoting the use of Disability Harassment Toolkit produced by EHRC.

i) Implement a full programme of disability awareness and communication training throughout all aspects of the justice system in Scotland starting with forward-facing staff.

j) Improve access to information on individual rights in the justice system – and ensure that this information is fully and appropriately accessible.

k)Address physical barriers to accessing legal aid servicesl) Address communication barriers which prevent people from accessing

their legal rights and being treated equally within the justice systemm) Address the attitudinal barriers which prevent disabled people from

accessing and attaining their legal rights e.g. through campaigns making it clear what those rights are and what is acceptable/unacceptable behaviour.

n)Research and address issues which halt disability discrimination cases.

o)Remove the small claims exclusion for legal aid in discrimination cases.

p)Develop and promote a system of tailored awareness raising of disability issues (e.g. BSL requirements) within Scottish Court Service,

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Crown Office Prosecution and Fiscal Service (COPFS) and Police Scotland.

q)Remove the prohibition for people with communication support from serving on juries – and research ways to support them to do this.

r) Raise awareness amongst disabled individuals and groups about how to access the Justice system (e.g. the police formerly visited schools as part of their preventative approach).

s)Address the unequal treatment by the criminal justice system of people with a learning disability.

t) Change the Scottish Crime and Justice Survey so that respondents can comment on disability hate crime.

u)Develop mechanisms to ensure that complaints systems are accessible.

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Annex 2Access to Justice Survey for Scottish Law Firms

We have contacted your law firm because the Law Society website states that you offer legal advice in respect of disability under consumer and civil rights. We would appreciate your time in completing the following survey about the current capability of Scottish law firms catering to disabled clients and disabled legal professionals.

The Independent Living in Scotland Project is trying to improve access to justice for disabled people. As part of this, we are researching civil justice and disability discrimination. Our research addresses the barriers to disabled people accessing civil justice and the low numbers of disability discrimination cases progressing through:

Employment Tribunals Additional Support Needs Tribunals Sheriff Courts

The data you provide will help us to identify issues for disabled people’s access to legal redress. It will also provide us with a clearer picture of the services on offer to disabled clients based on issues they face due to their protected characteristic (disability). We are producing a report of our findings and recommendations to the Scottish Legal Aid Board and the Scottish Government. We hope that this will lead to the further development of services and advice for disabled people.

Thank you for taking the time to participate in this research. Your contribution is much valued and appreciated.

The deadline for this questionnaire is Friday 13th May 2016. Please send the completed questionnaire to laura@ilis.co.uk

www.ilis.co.uk @ilisproject

Details of approaches to disabled people and cases

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1. How is your law firm marketing their discrimination services to disabled people?

2. To what extent do you feel disabled people are aware of the discrimination services that you offer?

Not at all

Very much so

3. (a) Have you taken on many disability discrimination cases for clients in the past year? Yes No (Go to 4)

(b) If yes, how many cases have you taken in 2015?

(c) How many cases in 2015 had a successful outcome?

4. (a) How many cases have you taken on in 2015?

(b) Are there any reasons you can identify which contribute to a low case load?

5. Are you able to identify any other protected characteristics which your disabled clients have had which had a bearing on the case/advice?

Please select the following that apply:- Age- Gender reassignment- Marriage and civil partnership- Pregnancy and maternity- Race- Religion and belief- Sex- Sexual orientation

(If you had no cases in 2015, then please use another period and tell us what period it was.)

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Law Firm’s scope of work

6. (a) What services does the law firm offer in respect of disability discrimination?

(b) Do you take claims that appear if the following?- Employment Tribunal? Yes No

- Additional Support Needs Tribunal? Yes No

- Sheriff Court? Yes No

7. Do you offer any another disability legal advice to disabled clients?

Yes No

If yes, please outline what other disability legal advice you provide.

Law Firm’s preparedness in terms of reasonable adjustments/ knowledge/ training

This section is about your firm’s duty to implement reasonable adjustments as defined in the Equality Act 2010 for any disabled clients and legal professionals.

8. Do you have equipment already in place at your office in anticipation of possible reasonable adjustments?

Please tell us what you have:- Step free access and egress- Quiet room- Induction or infra-red hearing loop- Large font papers - Information in Plain English or Easy Read- Information in Braille- British Sign Language interpreter- Palantypist

This list is not exhaustive. If you do not have the above adjustments have you considered alternative means?

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Please select if you have considered the following alternative means:

- Meeting disabled clients in a hotel- Meeting disabled clients in their own home- Use the Scottish Accessible Information Forum to make information

accessible- Offer sign posting

9. Do your staff have repeat Disability Equality Training or Disability Awareness Training?

- Clients Yes No

- Legal Professionals Yes No

10.Has your office premises been adapted to be accessible to all disabled people whether they are clients or legal professionals?

Yes No

11.Do you provide alternative methods of providing the same service to disabled clients and legal professionals if you cannot implement reasonable adjustments?

Yes No

Please feel free to provide the following optional details for the following:

- Your name:- Name of Law Firm:- Email or Telephone details:

We will use your answers to provide a report to the Scottish Government. We will share this information with you if it is required and no firms will be identified in the report.

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Annex 3

List of Local Authority areas in which law firms were surveyed by ILiS.

City of Aberdeen Angus Argyll & Bute Dumfries and Galloway East Lothian City of Edinburgh Fife Glasgow Highlands Moray North Ayrshire North Lanarkshire Perth and Kinross Scottish Borders Shetland South Ayrshire Stirling Falkirk West Dunbartonshire Western Isles

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