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Challenging disability discrimination: the legal implications of RS after the Administrative Court grants permission to apply for Judicial Review (28 March 2019)

Date: 28/03/2019
Duncan Lewis, Main Solicitors, Challenging disability discrimination: the legal implications of RS after the Administrative Court grants permission to apply for Judicial Review

In an Order issued on 25 March 2019, the Administrative Court of Justice held that it is arguably unlawful for a local authority to require a person with permanent and significant non-physical disabilities to attend a mobility assessment as a mandatory pre-requisite for determining their eligibility for a disabled parking badge (Blue Badge).

Background to this application

The Claimant is a highly vulnerable, disabled man by reason of his mental impairment. He has Autism Spectrum Disorder (ASD), Asperger’s Syndrome and Hyperacusis, a highly debilitating hearing disorder which causes increased sensitivity to certain frequencies and volume ranges of sound, and he also has learning difficulties.

The Claimant had been in receipt of a Blue Badge for many years as a direct result of his permanent and significant disabilities. However, the Defendant (the London Borough of Brent) has persistently refused, since March 2013, to consider renewing the Claimant’s Blue Badge, notwithstanding the Defendant accepting that the Claimant’s disabilities are permanent.

Following the issuing of letters before claim on the Claimant’s behalf on 25 September 2018, the Defendant undertook to reconsider the Claimant’s eligibility for a Blue Badge. In a subsequent decision dated 25 October 2018, the Defendant went on to refuse to reconsider the Claimant’s application to renew his Blue Badge, unless and until the Claimant attended a physical mobility assessment.

On 24 January 2019, we filed an application for permission to apply for Judicial Review seeking to challenge the Defendant’s decision of 25 October 2018 on the following basis:

  1. The Defendant’s imposition upon the Claimant of a requirement that he undergoes a mobility assessment to assess his gait as a prerequisite for considering his eligibility for a Blue Badge is unlawful, irrational and unreasonable;

  2. The Defendant’s position is contrary to the Department for Transport’s (DfT) published Guidance, contrary to the Defendant’s past conduct of granting a Blue Badge to the Claimant without the need for a mobility assessment, contrary to the Defendant’s equality duties, discriminatory and in breach of the Claimant’s rights under Articles 8 and 14 of the European Convention on Human Rights;

  3. The Defendant’s refusal and requirement imposing a mobility assessment in the knowledge the Claimant has no physical disability and that this will cause him extreme distress is unreasonable and unlawful and fails to properly apply the Blue Badge eligibility criteria and/or the DfT’s published guidance;

  4. The failure to grant the application and the imposition of a mobility assessment is wholly irrational and perverse given the Claimant’s disability, mental impairment and history. It is also irrational given the Defendant’s knowledge and understanding of the Claimant’s disability as reflected in the past grants of a Blue badge;

  5. No reasonable decision maker would impose the mobility assessment requirement or refuse to consider and grant the application on the basis of the evidence submitted. The ongoing refusal also fails to consider the extensive expert medical evidence submitted in support;

  6. The ongoing failure and decisions are contrary to the Defendant’s duties under the Equality Act 2010;

  7. The failure to consider the Claimant’s application and the Defendant’s subsequent decision to impose the requirement of the mobility assessment is in breach of the Claimant’s private life and causing him severe distress and significant reduction to his quality of life. That is a disproportionate interference in light of the circumstances of his case, the nature of his disability and vulnerability and the previous grants of Blue Badges to the Claimant.

Notwithstanding the Defendant’s opposition, the Administrative Court granted RS permission to apply for Judicial Review in an Order issued on 25 March 2019.

Implications of a Grant of Permission to Apply for Judicial Review

In granting permission, the Administrative Court confirmed that all of the above Grounds raised on behalf of the Claimant are arguable, insofar as it is arguable that the London Borough of Brent’s insistence that the Claimant must undergo a mobility assessment is unnecessary and irrational, and is unlawfully discriminatory under the Equality Act 2010 and also fails to comply with the Defendant’s Public Sector Equality Duty.

Irrespective of the final outcome of this case, which is currently scheduled to be listed for a final hearing, the granting of permission signifies that, contrary to the assertions advanced by the London Borough of Brent in this case, it is arguably unlawful for a local authority to insist that a disabled person attends a physical mobility assessment, especially when the authority in question knows full well that the Blue Badge applicant has permanent and significant disabilities which are non-physical in nature.

Under the circumstances, requiring such an individual to undergo a mobility assessment shows a total disregard for the subjective characteristics of the disabilities in question, which supports the overall contention that such a practice is unlawfully discriminatory in nature.

It is hoped that now permission has been granted, local authorities will be less inclined to impose requirements upon disabled individuals which fail to recognise or otherwise account for their particular needs.

Representation

RS is represented by Nicola Braganza of Garden Court Chambers, instructed by Trevor Hatton, of Duncan Lewis Solicitors.

Trevor is a Director of Public Law and Immigration at Duncan Lewis. Trevor has amassed extensive experience in virtually every aspect of immigration law, and specialises exclusively in Judicial Review and Court of Appeal cases. On 1 June 2016, he became the 50th lawyer in England and Wales to obtain the Immigration Law Advanced Accreditation from the Law Society. In recognition of this expertise and excellence Trevor is recognised by Legal 500 2019 as a Recommended Individual for Public Law. On 25 January 2019, Trevor was appointed as a Fee Paid First-tier Tribunal Judge of the Immigration and Asylum Chamber (IAC).

Contact Trevor on 020 7275 2884 or via email at trevorh@duncanlewis.com.

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