Case No: 3SP00071

IN THE COUNTY COURT AT LEEDS

Leeds Combined Court Centre, 1 Oxford Row, Leeds LS1 3BG

Date:

Before :

District Judge Geddes - - - - - - - - - - - - - - - - - - - - -

Between :

JEANINE MELISSA BLAMIRES Claimant

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LOCAL GOVERNMENT OMBUDSMAN Defendant

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Jeanine Melissa Blamires represented herself

Catherine Rowlands (instructed by Browne Jacobson LLP) for the Defendant

The court heard evidence on: 20 February 2017, 27 February 2017, 1 March 2017 and 3 March 2017 and read written submissions from the parties

JUDGMENT

1. This is the final hearing of the Claimant’s claim issued on 4 June 2013 for remedies under the Equality Act 2010, Data Protection Act 1998 and the Human Rights Act 1998.

2. The Claimant represents herself with the help of her husband and with considerable support from the Personal Support Unit. The Defendant is represented by Solicitors and Counsel.

3. I have read two trial bundles plus a supplementary bundle and Defendant’s authorities bundle. The Claimant has produced another bundle of authorities as well as a “micro-bundle”. I heard oral evidence from The Claimant and read her husband’s statement, which is unchallenged. I heard oral evidence on behalf of the Defendants from Mr Jonathon Buckley and Mr David Pollard.

4. I have sat throughout this hearing with an assessor Mr Grasby. I am grateful to him for his contribution which can be summarised as follows:

a. Advising me on matters relating to the conduct of the hearing in order to maximise the Claimant’s ability to participate fully in it; and

b. Discussing with me points of fact and mixed fact and law going to the disputes in this case; and

c. Prompting me with questions or points where gaps arose; and

d. Discussing this decision.

5. I have discussed the evidence I have heard and the substance of my decision with Mr Grasby on the Equality Act 2010 claims. His advice has been invaluable, but the decisions are mine. As it happens, however, there is no difference of approach between us.

6. At the outset of this hearing I gave a short judgment on the Claimant’s oral application to set aside a paper decision of mine to refuse a further direction for specific disclosure which would have necessitated the adjournment of this hearing. I did so because I considered such an order to be contrary to the overriding objective.

7. Significant issues are agreed. They can be summarised as follows:

a. The Claimant has a disability within the meaning of section 6 of the Equality Act 2010 (EQA).

b. The Local Government Ombudsman (“LGO”) was a “service-provider” within the definition of section 29 of the EQA and therefore had the duties set out in that section not to discriminate including under subsection (7) the “duty to make reasonable adjustments” in the sense set out in section 20 of EQA.

c. The LGO was a data controller and The Claimant a data subject within the meaning of the Data Protection Act 1998 (DPA);

d. Data controlled by the LGO in respect of The Claimant included personal data within the meaning of section 1(1) of the DPA and some was “sensitive personal data” within the meaning of section 2 of the DPA.

8. The issues and facts before the court which are in dispute can be summarised as follows:

a. The nature of the service offered by the LGO.

b. The relevant Provision, Criterion or Practice(s) to be identified for the purposes of the EQA.

c. The significance, if any, of the issue of a Provisional View.

d. Whether the Claimant was in fact at a substantial disadvantage in accessing the Defendant’s service.

e. Whether the Defendant made or failed to make reasonable adjustments to avoid that disadvantage.

f. Whether having regard to the findings made on the issues above (and in any event):

i. the LGO discriminated against The Claimant during the investigation of her complaint by:

1. ceasing their service or treating her unfavourably as a result of her disability contrary to section 15 of the EQA or terminated her service or ceased their service or subjected her to a detriment contrary to section 29; and

2. applying a provision, criterion or practice which is discriminatory in relation to her disability contrary to section 19;

3. failing to provide reasonable adjustments contrary to section 20 and 21.

g. If any or all of the matters complained of by The Claimant are established what damages should flow, including whether the court should award aggravated and/or exemplary damages

h. Whether the LGO breached:

i. The 1st principle of the DPA by failing to process her data lawfully and fairly.

ii. the 7th principle of the DPA by failing to ensure appropriate technical and organisational measures were taken against unauthorised or unlawful processing of The Claimant’ sensitive personal data destroying or mis-filing sensitive personal data belonging to The Claimant; and/or

iii. The 4th principle of the DPA by failing to ensure her sensitive personal data was accurate and kept up to date;

i. Whether, if so, any damage was caused to The Claimant; and/or

j. Whether she is otherwise entitled to damages for distress.

k. Whether there has been a relevant, free-standing breach of The Claimant’s rights to a fair trial under Article 6 in the conduct by the Defendant of their investigation.

9. As a civil claim the burden generally lies on the Claimant to prove her case on the simple balance of probabilities.

10. However, by section 136(1) of the EA: “This section applies to any proceedings relating to a contravention of this Act.” And (2) “If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred”. And (3) “But subsection (2) does not apply if A shows that A did not contravene the provision”.

Chronology

11. In around March 2012 the Claimant helped her daughter J (by then an 18 year old) telephone the Defendant in relation to a complaint she had about the conduct of North Yorkshire County Council (NYCC). This enquiry was allocated a case number by the Defendant (11021987 – “case 11”). On 15 August 2012 The Claimant submitted a complaint on her own and her family’s behalf in relation to NYCC’s failures as she saw them. That complaint was submitted via the LGO’s online complaints system and was allocated a case number (12008643 – “case 12”).

12. It is now common ground that the Claimant submitted the following under section 4 of the online form “More Help” which was a section designed to allow the user to indicate what help they might need to use the service: “Mrs Blamires has severe ME/CFS and Dystonia. Mr Blamires has ME/CFS, Chronic Pain and Dyslexia [.…1] It is better for us if we are seen and receive support while this case is being dealt with. Though e-mail is useful, regular meetings are better, we have a lot of evidence and we are not sure about what you will need. The phone can be difficult because The Claimant has intermittent loss of speech and Mr Blamires struggles to focus when in a lot of pain. What help can you provide?”

13. In section 8 the Claimant submitted the following: “We are a family of four with varying needs. My husband and two daughters are dyslexic, I have severe ME/CFS, my husband suffers moderate me/cfs exhibiting chronic pain…”

14. On 16 August 2012 a member of the LGO’s staff (an “adviser”) transferred the data contained in the online complaint form into case 11 and deleted case 12. They did so without reference either to the Claimant or J. This decision was taken before the case was allocated to the investigator. I was told in oral evidence that this would usually be a decision for the investigator themselves.

15. A further technical step appears to have been around this time to convert the online complaint form into a different format. There was conflicting written evidence from the LGO’s witnesses about the process by which the data was transferred into the new format and what it looked like to the reader.

16. I understood from Mr Buckley’s oral evidence that the adviser effected the transfer of the case form by selecting an option from a drop down menu. This (at the time) was said by the Defendants to have caused all of the data except for that contained in section 4 in relation to Reasonable Adjustments to be copied over automatically into a word format document such as that seen in the bundle at page 708. The adviser was under instructions (according to Mr Buckley) to manually copy over any data contained in Section 4 of the form.

1 Here an account is given of the rest of the family’s needs, which is not directly relevant to this case

17. In its defence to this claim dated 3 July 2013 the LGO made the following assertion at paragraph 30: “The claim includes a complaint that the Ombudsman did not bring the policy2 to her attention. The complaint form used by the Claimant when making her complaint to the Ombudsman…contained a section titled “More Help”. This invited complainants to indicate anything that would make it difficult for them to use the Ombudsman’s service, using the space provided. The complainant did not include any information in that space. Whilst the Claimant did include information as to the special needs of the family, she did not express any concerns about her ability to utilise the Ombudsman’s service...” The Claimant is and always has been since receiving a copy of the incomplete form in the defence pack aggrieved that this assertion was made endorsed with a statement of truth. She questioned David Pollard to the effect that she had drawn the discrepancy to the attention of the Defendant shortly after the claim was issued. I accept that she did, and that this would have been in 2013.

18. Despite this, it was not until the production of a statement from David Pollard dated 31 July 2015 that the LGO first admitted that the information contained in section 4 had not been transferred over – and that by implication (although not acknowledged even then in so many words) the assertion at paragraph 30 of their defence was false. Mr Pollard in oral evidence provided no satisfactory explanation for the delay, merely saying that it was not until shortly before this statement when he saw the two forms I have in the bundle that he realised an error had been made. This does not explain the two years over which the Defendant could have corrected their wrongful assertion given that they had, could have accessed or had been given the information to enable them to do so.

19. Thus it is now – eventually – “conceded”3 by the Defendants that the resulting form retained by the LGO for consideration by its investigator was the incomplete form shown at pages 708-712.

20. A further, agreed, consequence of this is that on the ECHO screen for case 11 no “red flag” would have been visible. The intention of the “red flag” would have been to alert the investigator to the need for reasonable adjustments.

21. On 19 September 2012 the complaint was assigned to an investigator, G.

22. On 24 or 25 September 2012 there was a telephone conversation between the Claimant and G. It is the Defendant’s case that there was no discussion in that conversation of any reasonable adjustments. This differs from the Claimant’s recollection but is consistent with the contemporaneous record.

23. On 12 October 2012 G wrote stating “I understand your health issues mean it may take you some time to collect together the information you want me to see, and that is not a problem, however I just felt the need to check in.”

24. The Claimant replied the same day: “Very sorry, we have had a difficult few weeks. We started scanning our evidence last night. The first attachment is included, not

2 Being its policy for offering reasonable adjustments to those with disadvantages which was contained in a leaflet entitled “Help for Complainants with different needs”.

3 I qualify this concession by noting that it cannot be correct in fact as the form disclosed at 708 contains a number of blank boxes which contained information which it is common ground that the investigator must have seen such as the identity of the offending Council

promising but we usually try to do as much as possible in our good bits. So will try to get as much to you as we can this weekend. To be honest it is so big it’s overwhelming and we can’t even get voluntary support to help. Apparently it’s not appropriate…”

25. After submitting some additional documents on 29 October 2012 (seven of which she now says were blank) The Claimant wrote “Sorry I have run out of energy. Thank you for your patience”. The Claimant submitted some documents on 7 November 2012 and ended her information with the words “Once rested I’ll start emailing the case notes that we believe are suspect”. There was no response from G but the record shows that she discussed the case with a colleague who suggested she should “pv and close the complaint…”

26. On 12 November 2012 G made the decision that J’s name should be removed from the complaint and it should proceed as a complaint in the name of Mr and Mrs Blamires only “I have asked Sue to change this complaint to Mrs and Mrs B and remove J’s name. I have not spoken to J”. She did so despite recording on the 7 November 2012 that she needed to write to J and perhaps speak to her. This contemporaneous evidence is in direct contrast to the position the Defendant took in this hearing which was to assert that the complaint was treated as a complaint on behalf of the whole family. Mr Pollard told me when dealing with the reasons for the voiding of case 12 that “Since it [case 12] is dealing with the same issues [as case 11] we dealt with it as one complaint.” Still G neither wrote to nor spoke with either the Blamires or their daughter. His oral evidence is further contradicted by the content of the Provisional Views which were issued, both of which decline to deal with any issues going to the provision of adult services for J.

27. On 5 December 2012 The Claimant wrote “Sorry for the delay, bit of a struggle at the moment…” and attached some letters. On the same day G appears to have received the Stage 2 documentation from NYCC.

28. On 6 December 2012 G wrote to the Claimant with her Provisional View, which was not to investigate the complaint further. She said this “I have had the opportunity to fully consider the details of your complaint and the documents provided so far. I know that with your health problems it is difficult for you to send the documents to me, and so I feel it is only fair that I write to you now about your complaint.”

29. The Claimant complained straight away about the failure as she saw it of the LGO to give her reasonable adjustments by telephone on 19 December 2012 when she asked for a face-to-face meeting to allow her to present her evidence and then again in a letter dated 2 January 20134 complaining about G’s actions and asking for reasonable adjustments to be made for her disability.

30. On 4 January 2013 the Claimant indicated she wished to make a formal complaint against G following this with a letter on 10 January 2013. She asked G to “halt” any further action – meaning as she explained to me in evidence that she wanted to avoid G issuing a Final Decision from which there was no appeal.

31. On 28 January 2013 the Defendant’s Sharon Chappell wrote to the Claimant. In that letter she acknowledges that the Claimant was dissatisfied with the service she had received and that in relation to the Provisional View “you have submitted comments and these will be fully and properly considered before any final decision is made”.

4 Which added some other complaints not relevant to today’s decision about an earlier investigation

She states that G had suffered an accident over the Christmas period and had not returned to work. As a result the complaint was to be reallocated. She says “You will be contacted by your new investigator in due course. They will discuss your request for a meeting. Given the significant resource implications we generally do not meet face-to-face with complainants but the investigator will explore with you what adjustments we can reasonably make to enable you to submit any further comments you may have”

32. Nothing was heard from the new investigator other than an e—mail or letter apologising for a lack of contact on 28 February 2013.

33. On 27 March 2013 it appears that the Claimant contacted the Defendants querying the lack of contact and repeated her request for a meeting as it became more difficult for her to use the telephone.

34. On 11 April 2013 R issued a provisional view, indicating that the Council had agreed to offer a financial remedy of £500 on the basis of admitted fault on the part of NYCC.

35. The issue of this PV led to further complaint by the Claimant about the process and about the conduct of the investigator. After discussion between R and David Pollard an extension of time to comment on the PV was offered to 29 May 2013.

36. On 4 June 2013 the Claimant issued this claim. She did so just in time for her claim in relation to the 6 December 2012 PV to be in time.

37. On 6 June 2013 Mr Pollard wrote in response to the complaint about how the case had been handled by R asserting that the Claimant had had reasonable opportunity over the previous nine months to submit her documents and inviting a response to the second PV as follows: “You may disagree that the remedy is adequate and, if so, the best way forward would be for you to explain why. I do not consider that this necessitates you providing a significant quantity of evidence or R visiting you to go through it. You could do this in a straightforward way in an e-mail”.

38. A lengthy period of litigation ensued, which I have described in my earlier judgment. Eventually the LGO issued a Final Decision on 13 April 2015

Finding on the Nature of the LGO’s service for the purpose of section 29 of the EQA

39. The nature of the service offered by the Local Government Ombudsman is described in its closing submissions as that defined by Part III of the Local Government Act 1974 (“LGA 1974”). By section 26 of that Act the Defendant “may investigate in relation to a local authority: (a) alleged or apparent maladministration in connection with the exercise of the authority’s administrative functions; (b) an alleged or apparent failure in a service which it was the authority’s function to provide; (c) an alleged or apparent failure to provide such a service.”

40. The LGO has a discretion to initiate, continue or discontinue an investigation under section 24A of the LGA 1974. There is a 12 month limitation period for complaints which may be dis-applied at the LGO’s discretion (S.26B(3) and time only starts to run once the person affected “first had notice of the matter” (s.26B(2)9a). Under section 28 the LGO has a wide discretion to adopt and adapt its own procedures so long as it gives the person complained against an opportunity to comment.

41. Counsel for the Defendant makes a number of assertions in her submissions about what the service is not. I have picked out a sample of the examples given, which seem to me to illustrate an inconsistency in the Defendant’s position in these proceedings compared with what I read of its powers and duties in legislation and guidance.

42. Counsel submits that the service is not “making the complaint for or on behalf of a complainant” or “taking sides” yet section 26C makes provision for Local Authorities to self-refer to the LGO and section 26D make provision for the LGO to investigate injustice to the public of its own initiative. The LGO’s leaflet on the help available to those with additional needs specifically sets out that the LGO may help those who have difficulty “assembling and considering” written material by meeting with them or even advocacy.

43. Counsel submits that the service is not “a wholescale examination of all dealings between the complainant and the subject of the complaint”. This assertion is meaningless in my judgment as I suspect that in many cases they do in fact review all of those dealings which may be very straightforward. Even if complex, the powers they have would certainly allow them to do so.

44. Counsel submits that the service is not “re-taking decisions of the local authority”. Perhaps not, but the guidance on remedies makes it plain that the LGO can recommend that a Council reconsider its decisions, re-assess families, enable corrections to documents or a record of the objection of a party to be included on a file, ensure training of staff to prevent re-occurrence of the issue and so on. In other words, wide recommendations covering non-pecuniary matters and which could result in a further service being offered by the authority to the complainant.

45. Counsel submits that the service is not “awarding such sums as might be awarded by the civil courts”. Throughout this case I have been led to believe by the LGO that the remedies it can award are very limited. Having now read the guidance I am quite satisfied that those remedies are wide-ranging indeed and cover both pecuniary and non-pecuniary remedies. The pecuniary remedies include unlimited compensation for injustice caused by fault including for example, compensating for lost earnings, for the loss of a better outcome from assessments, lost services, reduced property values and so on. Indeed the overall aim across the guidance is for the victim of injustice to be put back in the position they would have been but for the fault – a formulation which clearly has its roots in civil law. In short, it seems to me from reading the guidance that the LGO indeed has powers to order compensation of the nature awarded by the civil courts and has the additional power to award nominal sums for distress which is not recognised as a separate head of damage in most civil claims.

46. It is disappointing that I have had to obtain this information for myself. In paragraph 3 of my case management judgment I recorded this “I am told by the Defendant that it is a small body with limited resources and narrow functions”. Later in the same judgment as I considered the question of proportionality I said this: “Due to the limited nature of the Defendant’s function it is reasonable to think that any additional compensation awarded as a result of their investigation is likely to have been very limited. Indeed, given that they ultimately upheld the complaint on a number of issues and endorsed an offer of NYCC of compensation in the figure £500 it is arguable and no doubt will be argued that there was no loss in this respect .” Neither of these statements was corrected by the Defendant and I had not been provided with

a copy of their remedies guidance despite Counsel purporting to attach it to her closing submissions. I now consider my comments to be unsound.

Findings on the Relevant Provision, Criterion or Practice (PCPs)

47. Section 20 of the EQA relies on the court identifying a relevant PCP from which to measure whether adjustments are reasonable. “It is important to distinguish between a PPP5 and the adjustments made to a PPP to alleviate the detrimental effects to which a disabled person may be subjected by it. The PPP represents the base position before adjustments are made to accommodate disabilities. It includes all practices and procedures which apply to everyone, but excludes the adjustments. The adjustments are the steps which a service provider or public authority takes in discharge of its statutory duty to change the PPP. By definition, therefore, the PPP does not include the adjustments.” Finnegan v Chief Constable of Northumbria [2013] EWCA Civ 1191

48. The Claimant identifies two PCPs in her amended statement of case:

a. “A practice of not helping complainants with communication difficulties to complain and adequately present information relevant to the investigation”; and

b. “A practice of only retaining all complainant information if the complainants do not require reasonable adjustments and have previously asked for advice”

49. Neither formulation is right. The first is a mere restatement of the complaint that the Defendant failed to make reasonable adjustments. The second is nearer to the mark the Claimant wishes to hit although for reasons set out below I think it is more apt to be considered in the light of section 19 than section 20 of the EQA.

50. The Defendant offers a reformulation. They contend that the base position is “an alleged practice of helping complainants to complain and present their information from which the Claimant has unlawfully been excluded by the failure to make adjustments”. I cannot accept that this is the base position and the inclusion of the word “alleged” is curious considering it appears in a part of the submissions intended to provide me with a baseline.

51. In my judgment the first relevant provision, criterion or practice is the “paper-based” or “web-based” service offered by the Defendant to all of its customers. It is described in David Pollard’s statement as follows: “The Ombudsman’s usual procedure is a paper-based procedure. This means that the investigator will normally just look at documents and not meet with complainants or the subject of the complaint”. In fact, at the time of this complaint the procedure was not so much “paper-based” as “web-based”. This is the base position before any adjustments are offered.

52. The second relevant provision, criterion or practice the Claimant is driving at is the practice the LGO had (at the time) of transferring data automatically from one format into a different, “word” document with the exception of data contained in section 4 which was to be transferred manually.

5 Now PCP

53. This is not a PCP which on any view could require “reasonable adjustments” and I do not consider it in relation to section 20. In my judgment it is better understood on the Claimant’s case as a PCP which might have been indirectly discriminatory against people with disabilities contrary to section 19.

Finding on the issue of the significance of the Provisional Views

60 The Claimant’s case is that by issuing a Provisional View (“PV”) on 6 December 2012 and then again on 11 April 2013 he Defendant ceased to provide a service to her/subjected her to a detriment and/or treated her unfavourably as a result of her disability and that in doing so it discriminated against her. The Defendant argues the PV is immaterial to the ultimate outcome because it can be reviewed before the Final Decision.

61 I have carefully read the PVs of both G and R and their covering letters together with the Notes and Analysis document and other contemporaneous records. I have heard oral evidence on the point from David Pollard.

62 Upon lodging a complaint, the complainant is given an opportunity to explain her case (whether on paper or by telephone or in person) and expects the LGO’s officer to investigate. The scope of the enquiry will differ in every case and, as in this case, the decision can be made by the LGO’s investigator to conclude the “investigation” without investigating at all.

63 Once the investigation has concluded or sufficient information has been received to decide that no investigation is to be undertaken the investigator issues a PV.

64 Objectively, the importance of the PV is clear to me. It is set out in the form of an official report with findings and a recommended remedy or a decision not to investigate or discontinue investigating. It is sent under cover of a letter which invites a comment on the PV rather than inviting additional evidence on the complaint itself. It triggers a tight deadline for comment to be received before a final decision.

65 The Defendant’s own contemporaneous records demonstrate that the issue of the PV is a material and important step. G records on 7 November 2012 “Spoke to Victoria…V suggests I pv and close the complaint…” Again, on 5 December [2012] “Now see[n] all docs, as above need to pv and close…”. This phrase “pv and close” is a shorthand for what I understand to be the true position – that upon issue of the PV the investigation is basically complete. All that is left to do is to receive comment on the PV and issue a Final Decision. This is a short and simple process as Mr Pollard points out and is basically one step from finalisation. This is also clearly illustrated by the Skype meeting convened during the stay. It was ineffective because the LGO insisted on taking the PV as its starting point, whereas the Claimant wished to discuss the whole course of the complaint. If the Defendant’s submissions were correct starting at the PV or back at the beginning would make no difference.

66 Subjectively, I accept that the Claimant was “devastated” when she received the PVs in this case. I would suppose that anyone receiving an official report dismissing a complaint or upholding it but recommending what was perceived as an inadequate remedy would be upset and stressed by the turn of events. The fact that this is couched in provisional terms does not detract from its impact on the recipient in my judgment.

67 I have concluded therefore that the issue of a PV is an important and material event.

Failure to make Reasonable Adjustments contrary to sections 20 and 21

68 At the heart of this claim is the allegation that the Defendants failed to make reasonable adjustments to allow the Claimant to formulate and present her claim against NYCC to the Defendants.

69 Under section 20 of the EQA the duty comprises three requirements, the first of which is relevant to this case. By s.20(3) “The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.” By s.21(1) “A failure to comply with the first…requirement is a failure to comply with a duty to make reasonable adjustments” and “(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.”

70 I have been presented with much case law on the subject, most usefully Finnigan (above) and the recent Supreme Court decision in Paulley v FirstGroup plc [2017] 1 WLR.

71 The LGO argues its investigators were aware throughout of the Claimant’s disabilities and made appropriate reasonable adjustments by allowing her more time to collate her information and submit them to the investigator.

72 David Pollard said this at paragraph 11 of his 26 August 2016 statement: “I note from the file that G was aware of the Claimant’s difficulties in making oral representations and that the Claimant was given extra very long time [sic] to put together her representations”. G has not given a statement.

73 The Defendant’s own evidence does not in my judgment support the assertion that G knew of the Claimant’s disabilities as they had been described by her but instead shows she was not provided with key information:

a. That the Claimant suffered dystonia as described in section 4 as well as the ME/CFS she notified them of elsewhere on the form. I take judicial note that dystonia is a movement disorder in which a person’s muscles contract uncontrollably. The contraction causes the affected body part to twist involuntarily, resulting in repetitive movements or abnormal postures; and

b. That the Claimant had requested the following: It is better for us if we are seen and receive support while this case is being dealt with. Though e-mail is useful, regular meetings are better, we have a lot of evidence and we are not sure about what you will need. The phone can be difficult because The Claimant has intermittent loss of speech and Mr Blamires struggles to focus when in a lot of pain. What help can you provide?; and

c. That she had included the above in Section 4 of the form which should itself have alerted the investigator (whether through the “red flag” it would have put onto the case file or otherwise) to the need to consider making reasonable adjustments.

74 My conclusion that the above was material information in a material location is reinforced by the inclusion in paragraph 30 of the Defence of specific reference to its absence as a pleaded point. Furthermore, on the Defendant’s own case there was no discussion of the reasonable adjustments the Claimant might need during the long conversation on 24 September 2012 and no further conversation between the investigator and the Claimant before the issue of the PV on 6 December 2012.

75 It is common ground that G gave some time for documents to be sent. She did so apparently in response to what she described as the Claimant’s “health difficulties” and knowing, as the Defendant has always conceded, that the Claimant was in fact disabled.

76 Nowhere does G suggest that she has considered and rejected the Claimant’s own requests for reasonable adjustments. She could hardly have done if she was unaware of them.

77 I find that G moved to issue a Provisional View (PV) on 6 December 2012:

a. Without being aware of the Claimant’s disabilities as fully described by her in section 4 and that this was material because it included reference to the dystonia which causes the Claimant physical and communication difficulties;

b. Without having considered, allowed or rejected the Claimant’s request for particular adjustments (support and regular face-to-face meetings) and without suggesting or agreeing any alternatives;

c. Without exploring the issue of reasonable adjustments with the Claimant at all (on the Defendant’s own case);

d. Without giving the Claimant a warning that she was to issue the PV or exploring with her how much more time she might need;

e. Knowing that the Claimant had expressed on more than one occasion how overwhelmed and fatigued she was by the process;

f. Without informing the Claimant that she might have the right to seek other adjustments or providing her with the LGO’s own leaflet Help for Complainants with different needs; and

g. Without informing the Claimant that her request for particular adjustments was not even being considered.

78 I have identified the PCP above. The fact that the nature of the service might put some people at a substantial disadvantage is recognised by Mr Pollard in his statement and in the Defendant’s leaflet Help for Complainants with different needs. In that t a number of alternative means of accessing the service are described and said to be “available for complainants who need them” [subject to the availability of resources]. Mr Pollard states that “The investigations, and any adjustments to be made to the normal procedure, are a matter for the discretion of the investigator.” I would add that this must be subject to that discretion being exercised lawfully.

79 Once a service user has identified potential adjustments to the service provider it is for the provider to show that such an adjustment was not a reasonable one to make – Project Management Institute v Latif [2007] IRLR 579 as accepted by Dyson LJ

within Finnigan v Chief Constable of Northumbria Police (CA) [2014] 1 WLR 455 paragraph 38.

80 How does the Defendant attempt to discharge what I find to be the burden upon them to prove they provided reasonable adjustments notwithstanding that it is now common ground that the Claimant identified and asked for specific adjustments in section 4 of the application form which were not passed to the investigator at all?

81 Firstly the Defendant claims that the Claimant was not in fact put at a substantial disadvantage by their system pursuant to sections 20 and 21.

82 “Substantial Disadvantage” means more than “trivial or minor”. The Equality and Human Rights Commission Code of Practice on Services, Public Functions and Associations at paragraph 5.10 says this about disadvantage and its associated term detriment:

‘Disadvantage’ is not defined by the Act. It could include denial of an opportunity or choice, deterrence, rejection or exclusion. The courts have found that ‘detriment’, a similar concept, is something that a reasonable person would complain about so an unjustified sense of grievance would not qualify. A disadvantage does not have to be quantifiable and the service user does not have to experience actual loss (economic or otherwise). It is enough that the person can reasonably say that they would have preferred to be treated differently.

83 The Defendant has argued in this case that the fact that the Claimant was able to use e-mail and has been able to write letters and has been able to collate a large amount of information for these proceedings is evidence enough to defeat an argument based on the Claimant being at a substantial disadvantage. I disagree. The Defendant was aware of the impact of fatigue on the Claimant through her e-mail correspondence. They were aware that she found the volume of paperwork she had “over-whelming” and was struggling both to know what to submit in support of her claim and to physically complete the task of sending it by reason of her disabilities. They were aware that she had difficulty at times in physically articulating herself orally. They knew, or should have known, that she had had the help of both an advocacy service and a home visit to help her formulate her original complaint to NYCC (this information having been contained in the Second Provisional View and which I infer must have come from the Stage 2 documents the Council submitted to the Defendant on 5 December 2012). I accept from her evidence that the Claimant has taken advantage of many hours of assistance from the Personal Support Unit to help her formulate her arguments, submissions and applications into a form for submission to the court. This is similar to her experience of making earlier complaints in relation to her Housing for example.

84 I find that the Claimant was as a matter of fact at a substantial disadvantage in accessing the Defendant’s service as a result of her physical disabilities and communication problems. She did struggle to consider and assemble material and to communicate what she wished to communicate to the Defendant. This is obvious from her correspondence in September to December 2012 and her difficulties were acknowledged at the time. The defence to this claim is inconsistent with that acknowledgment.

85 Alternatively the Defendant argues that the provision of “extra” time was a reasonable adjustment and that any liability to extend such adjustments to the Claimant is satisfied by that. Again, I disagree. It was patently obvious from the correspondence and acknowledged by the Defendant at the time in correspondence that what the Defendant describes as a large amount of extra time was not effective on its own to achieve a position where the Claimant had put forward what she felt to be the relevant material for consideration of her claim. It is not enough in my judgment to say that she got there or would have got there in the end by using e-mail when the process caused her such obvious distress and fatigue as a result of her disability (a clearly adverse experience when compared with someone without her disability) and when her case throughout has been that she did not “get there” at all. Even if the Defendant is right that time alone would have been a reasonable adjustment, they do not explain why G felt the need to move to a PV on 6 December 2012 rather than simply allow more time or at least explore with the Claimant how much more time she might need.

86 The Defendant can say nothing about its obligation to at least consider and allow or reject the adjustments identified by the Claimant, namely support and face-to-face meetings. It makes no acknowledgement in its amended defence of the consequence of finally abandoning its wrongful assertion that none had been identified.

87 The Code of Practice on Services, Public Functions and Associations at paragraph 7.30 gives a non-exhaustive list of factors which may be relevant to the question of whether the adjustment sought is reasonable and this is cited most recently in the Supreme Court decision of Paulley v FirstGroupplc [2017] 1 WLR paragraph 27:

a. Whether taking any particular steps would be effective in overcoming the substantial disadvantage that disabled people face in accessing the services in question;

b. The extent to which it is practicable for the service provider to take the steps;

c. The financial and other costs of making the adjustment;

d. The extent of any disruption which taking the steps would cause;

e. The extent of the service provider’s financial and other resources.

88 Adopting the words used in Paulley at paragraph 60 the Claimant would have to prove that not only should the LGO have made “an adjustment to its PCP but that had that adjustment been made, there is at least a real prospect that it would have made a difference”

89 In its leaflet the Defendant identifies a large number of possible adjustments it might take for those with disabilities (physical, sensory, communication, and learning) and other people. It says “The following alternative arrangements are available for people who need them”. It says “Complainants who need alternative arrangements should tell the investigator who is dealing with their complaint”.

90 Assistance available to people with English not as their first language includes “Meetings: consideration will be given to holding a meeting to discuss the complaint, with an interpreter present, to help reduce the need for correspondence”. Under “Sex” it says “Where the sex of an investigator is an issue, we will consider arranging

for same sex staff to conduct interviews and may consider reallocating the case”. For deaf people “We can arrange to conduct interviews using Text Relay…by internet exchange…either in person or through video conferencing” For those with mobility difficulties the “reception areas and interview rooms at all our offices are wheelchair accessible” and “most interviews are carried out by telephone or at the complainant’s home. Where another venue needs to be chosen for an interview…a venue with suitable access…will be arranged”

91 The Defendant’s leaflet goes on to make the following statements under a heading: “Our approach to advocacy” “Some complainants may encounter difficulty in assembling or considering the written material associated with their complaint, because of a communications problem or learning disability. We may be able to meet with these complainants if this would be helpful in addressing their difficulties.” They go on “We will help to put the complainant in touch with voluntary or charitable bodies who may be able to help; in some cases it may be possible and appropriate to obtain help from a local authority keyworker” and “We will consider funding advocacy for people in need of them, who cannot obtain funding elsewhere, sufficient to enable proper consideration of the complaint.”

92 I can only conclude from this that the Defendant has – as it must under the EQA - properly anticipated reasonable adjustments to its procedure in order to assist those who would otherwise be disadvantaged by it. Indeed it is a striking feature of this case that the Claimant was not asking for anything that the Defendant did not already offer as a possible reasonable adjustment to those needing extra help. It must also follow that the Defendant considers that such adjustments are capable of making a difference generally to people requiring extra help.

93 Notwithstanding the above, the Defendant has argued that its limited resources simply do not allow for face-to-face meetings or the provision of advocacy or other personal support by way of reasonable adjustment. The implication of this argument is that the promises made in the leaflet I have referred to are published to pay lip service only to the duties the Defendant has to anticipate and make reasonable adjustments. The leaflet refers in multiple places to interviews face-to-face and to accessible meeting rooms. The leaflet promises sign-posting to advocacy services and even funding of such services if necessary. It would be disingenuous in my judgment to now argue that none of these resources could in fact have been extended to this Claimant6.

94 I would be very surprised if the Defendant is indeed so remiss as to pretend it will offer help when it fact it will not. It is much more likely that the Defendant simply failed in this case to consider reasonable adjustments for this Claimant adequately as a result of their own failure to transfer the relevant data on the form over for the consideration of the investigator and the failure of G to explore the question of reasonable adjustments with the Claimant at all.

95 Finally, the Defendant suggests that even if it had offered the adjustments to the Claimant she sought it is unlikely she would have either taken them up or benefitted from them and that in this way it would not have made a difference.

6 The evidence of Mr Pollard does not in fact contain this assertion which appears to be confined to submissions only. His evidence relies on the argument that it was a reasonable exercise of discretion to limit the adjustments offered to extra time. I have dealt with that elsewhere.

96 Yet again I do not consider that I can safely conclude that the Defendant is correct. The first part of the assertion is based largely on the Claimant’s failure to respond to the two PVs in substance and/or to take up a much later offer of a meeting which the Defendant says the Claimant would not agree to. This results in my judgment not from the Claimant’s lack of engagement but from the fundamental difference of approach between the Claimant and the Defendant on the PV which became entrenched and this litigation which has been bitter.

97 The Claimant’s evidence, which I accept, is that she had substantial help from voluntary or local authority funded advocacy services to assemble and bring successful complaints in the past and I also accept that she has taken up very substantial help from the PSU in these proceedings. These facts are not consistent with someone who would have refused to take up the adjustments she had asked for if they had been offered. Furthermore it is evident from the papers produced in this case that with that help the Claimant can be very effective in presenting a case.

98 The Defendant cannot prove that the adjustments sought by the Claimant were unreasonable in my judgment. Had they offered her the support, advocacy or face-to-face meetings she had requested I am quite satisfied that there is a real prospect it would have “made a difference” in the following ways:

a. By providing her with the physical help she needed to collate and present documents;

b. By making the process less stressful and overwhelming for her; and

c. By increasing the chance that the Defendant would either have decided to investigate further or recommended a pecuniary or non-pecuniary remedy rather than decided not to investigate

99 I base these findings on the following:

a. The Defendant’s own anticipatory adjustments as set out in their leaflet suggest that what the Claimant wanted was just the sort of support the Defendant considered effective to enable those with like difficulties to access their service;

b. The Claimant in fact achieved a better outcome later in the case, raising the likelihood in my judgment that by being assisted to present her case she would have been able to persuade the investigator to recommend a remedy or at least to investigate further;

c. She had already been partially successful in her complaint against the Council at Stage 2, which had been achieved with the sort of help she was asking for here albeit over a protracted period;

d. She has shown ability with assistance to win previous successes in complaints against public bodies as were described to me;

e. With help she has presented this case in a way which significantly contrasts with her engagement with G’s investigation;

f. I am satisfied that (notwithstanding her difficulties in articulating herself orally at times) it would have been a far easier and less stressful experience for her to sit down with the investigator and discuss and hand to them the

documents she thought relevant compared with having to select (a physically difficult task for her in itself at times), describe in writing, scan and e-mail documents in trances which she clearly found onerous and exhausting.

100 After the issue of the First PV and The Claimant’ complaint against G the Defendant wrote to her.

101 The Defence at paragraph 35 asserts that: “In the letter of 28 January 2013, the Defendant withdrew the first Provisional View so during the period 28 January 2013 to 11 April 2013…the Claimant was not required to make any comments on the Provisional View [my emphasis]. As a result, the Claimant had additional time, with the investigation re-started, to make any submissions and submit any further documents. She did not avail herself of that opportunity…” This is a very unfair allegation on an examination of the facts.

102 The first point to make is that Sharon Chappell’s letter refers to a new investigator but neither promises a new investigation nor invites the Claimant to submit additional evidence.

103 R did not have the information contained in section 4 of the original complaint. The evidence does not reveal whether she was aware of Sharon Chappell’s letter of 28 January 2013 although it is assumed she was.

104 Mr Pollard says this in his statement at paragraph 16 “I can see from the case file that when R took over the investigation she started the investigation afresh and that she knew the Claimant was disabled and was aware of the need to make reasonable adjustments. I refer in particular to her letter dated 28 January 2013 in which R indicated she would explore with the Claimant the reasonable adjustments which could be made to enable her to submit any further comments, but also noted that the Ombudsman did not generally have face to face meetings with complainants.” In paragraph 17 he says “R concluded that reasonable adjustments in this case were to allow the Claimant more time to make her submissions, which is what she did. There would have been no reason for R to make such an offer and to do so unless she was aware of the need to make reasonable adjustments and she would not have made that offer unless she considered that it was the appropriate reasonable adjustment to make” At paragraph 18 “It is also clear from the case file that R did not think it would have been a good idea to have a face to face meeting…” At paragraph 19 “Instead R gave the Claimant additional time to comment on the provisional view before proceeding to issue it…”

105 This evidence has contributed to the contentious litigation on disclosure in this case as the Claimant has tried to obtain the documents upon which it was based. In cross-examination Mr Pollard was asked either to refer to the documents upon which he had based this evidence or to concede that full disclosure had not in fact taken place. He could not do show me such documents although he contends that full disclosure has been made. The letter of 28 January 2013 was not from Mrs R at all. He told me the Notes and Analysis document was the “key document” but had to concede there was no reference to any of the steps he alleges within that document. In short he had to concede that I could not rely on his evidence in these paragraphs.

106 I am quite satisfied that:

a. Like G, R was unaware of the full extent of the Claimant’s disabilities or the support and meetings she had requested as reasonable adjustments at the outset as she did not have access to section 4 of the online complaint form and neither she nor the Claimant knew that this information was missing from the file;

b. Like G, R did not explore the question of reasonable adjustments at all with the Claimant at any stage, despite the promise from Sharon Chappell;

c. R had no substantive correspondence with the Claimant and no conversation with her at all whether about the substance of the claim, the process by which the claim would be re-investigated, the impact on the Claimant and her family or the remedy sought before she issued her PV;

d. Unlike G, R was probably aware from the outset of the request for a face-to-face meeting but the reasons for the request were not explored with the Claimant, none was facilitated and no explanation for the refusal was proffered until the issue of the PV. Given the missing data in section 4 and her failure to explore reasonable adjustments with the Claimant I cannot see how she could make a sensible judgment on the reasonableness of the request.

e. Although her covering letter of 11 April 2013 purports to deal with the question of a meeting, the way it reads suggests that rather than recognising that the purpose of a meeting would be to enable the disabled complainant to put forward her complaint on an even playing field with the able-bodied complainant (i.e. a reasonable adjustment to enable participation in the process) it implies that the question of a meeting is no more than might arise in any case in order to supplement information already provided. This is an apparent misunderstanding of the purpose of the requested meeting, perhaps arising from her failure to explore the purpose of a meeting with the Claimant.

107 As I have already found that the Claimant was at a substantial disadvantage in accessing the Defendant’s service and had requested reasonable adjustments both in her original complaint form and in her correspondence of January 2013, the burden is on the Defendant to prove that they did so before R also moved to a PV. They cannot.

108 My findings on the significance of the failure to make reasonable adjustments at this stage mirrors that contained in 89-101 above, but I should say something more because the second PV purported to have investigated to the point of recommending a remedy and did recommend a remedy of £500 by way of compensation for the injustice caused by “uncertainty” because “I cannot say re-housing would have happened sooner or additional services would have been offered”.

109 I have made findings on the significance of the PV which I do not need to repeat. The Defendant concedes that the Claimant found the PV “disappointing”. I accept her evidence that it went further than that.

110 In this case the Council had admitted fault in a number of areas and R found injustice had occurred as a result of two of these faults but rejected a number of others and does not appear to have considered recommending a remedy for distress as a result of the failures.

111 The Defendant’s defence is predicated on this being a fresh investigation yet it cannot prove that it offered reasonable adjustments to the Claimant – or even gave the question any thought before issuing the amended PV - to enable her to participate in that process. For the same reasons I have set out above in relation to G’s PV, I consider that there is a real prospect that offering reasonable adjustments would have made a difference to the Claimant’s ability to participate in the process. Indeed I would go further because I have concluded that had she been allowed to participate there was a real prospect that the Claimant would have been able to persuade the LGO to look beyond the mere admissions of NYCC and investigate those complaints which NYCC had not upheld at Stage 2. I also consider there to be a real prospect that the LGO would have considered the impact of the NYCC defaults on the Claimant and considered recommending a remedy for distress.

112 The Claimant states she has continued to be denied the reasonable adjustments she requires to present her evidence throughout the whole of the period before the Final Decision. The issue of the Final Decision did not take place until 13 April 2015.

113 Again, there is no note at all in the “key document” of any work undertaken or reasoning applied (let alone “analysis”) before the LGO reached a final decision. There had been one Skype meeting between the parties which was ineffective because of the difference in expectations I have already described and the fact that the Claimant became ill during the meeting. The Claimant’s request for shorter, Skype, meetings was refused.

114 I am not convinced that by then the provision of reasonable adjustments would have made a difference. The parties were entrenched and this litigation was ongoing. A series of short Skype meetings might have allowed the Claimant to say more but are likely by then to also be extremely stressful for her and are very unlikely to have changed minds in the context of this litigation. They would not have given her the physical help with collating or presenting documents which might have made a real difference. She had asked for a new team, which is understandable but this is not a “reasonable adjustment” and is not relevant to that concept. The insistence of the LGO to start from the PV was backed up by the terms of the stay which had been imposed in August 2014 but struck at the heart of the Claimant’s primary complaint (which has ultimately been upheld). Neither party was likely to move on this point without a determination of the Court. The fact that there had been injustice in the way in which the parties had reached that point will be compensated for elsewhere as a result of this judgment.

The Claims under section 15(1) or 29(2)

115 The Claimant claims under section 15(1) of the EQA that the Defendant discriminated against her when she issued their PVs on 6 December 2012 and 11 April 2013 and when they issued the Final Decision in April 2015 by ceasing to provide her with a service or (following the wording of the statute) treating her unfavourably “because of something arising in consequence of her disability”.

116 The wording of the covering letter to the PV on 6 December 2012 is clear and gives rise to facts upon which I could decide in the absence of any other explanation that there had been discrimination: “I know that with your health problems it is

difficult for you to send the documents to me, and so [my emphasis] I feel it is only fair that I write to you now about your complaint..”.

117 I find, therefore, that the burden of proof under section 15(1)(a) falls by virtue of section 136 on the Defendant in relation to the 6 December 2012.

118 The original defence did not deny this part of the claim. The amended defence and Mr Pollard’s witness statement both fail to address the apparently unambiguous message of G’s covering letter which links the decision to move to a PV to the difficulties caused by The Claimant’ health in submitting her documents. It is very difficult to rely on the Notes and Analysis document in the absence of witness evidence from its authors but at best it appears that G was keen to stop receiving documents in this way because she perceived that doing so would be fruitless – a conclusion which in the light of the failure to consider the needs triggered by the Claimant’s disabilities cannot be considered sound or justified.

119 The defence appears to be that the PV was a reasonable exercise of G’s discretion and that she had all the information she needed to issue the PV. I find this defence unattractive and it must be rejected in the light of the failures I have already identified in relation to reasonable adjustments. Further, in the absence of any witness evidence from G or anyone directly involved at the time there is simply no evidence upon which I could safely come to that conclusion.

120 I have concluded, therefore, that the Defendant fails to discharge the burden on them to prove that the issue of the 6 December 2012 PV was not discriminatory under section 15.

121 The issue of the second PV on 11 April 2013 was in the absence of any further contribution from the Claimant. No explanation or evidence is provided as to why if the investigation had started again the Claimant was not spoken to or written to before the PV was issued. There is no evidence produced of any work done, decisions taken or analysis explaining why R did so. I am not sure whether this is because none was done or because her records have not been disclosed.

122 It is reasonable to infer R must have at least read the file. However, she continued to disregard any contribution that the Claimant might have been able to give if offered the adjustments she had requested (or at all). She failed to offer any exploration of the adjustments required. I am satisfied that by doing so the LGO breached section 29(2) by ceasing a service (having regard to my findings on the significance of the PV) or subjecting the Claimant to a detriment just as it had on 6 December 2012.

123 I consider that the period from the issue of the second PV to the Final Decision is more conveniently viewed when I come to assess damages given that there was ongoing litigation between the parties which had become very bitter over time.

Section 19 of the EQA

124 I have described above a practice of the LGO providing for automatic transfer of data from an online complaint form into a word document without including the data entered at section 4.

125 As stated above this is not something for which “reasonable adjustments” can be offered or is relevant and to this extent I agree with the Defendant.

126 The Claimant has formulated her arguments around this issue under section 20 and this is misconceived although she put section 19 in issue in general terms in her first witness statement.

127 Section 19 is breached if “A applies a PCP which is discriminatory in respect of a protected characteristic of B” and it is discriminatory if “(a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.”

128 On the evidence I read and heard from Jonathon Buckley and David Pollard the following findings can be made:

a. The LGO – at the material time – had a practice of automatically transferring the data included on a web complaint form into a different format and that on their own case all of the data was so transferred upon selection of the appropriate drop down menu choice except that contained in Section 4 (if any).

b. The LGO contends that advisers were under instruction to transfer the data contained in section 4 manually.

c. They say that this was a practice which they applied across the board.

d. By deliberately choosing not to provide for automatic transfer of all of the data from one form to the other the LGO exposed each and every case in which data had been included in section 4 to the risk that the needs described would not be recorded in the version retained for transfer to the investigator and would, instead, be deleted or otherwise be made inaccessible as a result of human error.

e. Mr Buckley confirmed there was neither a technical fail-safe or manual safety net (even by way of regular random audit) to avoid this occurring. He conceded in evidence that it was fair to say that the decision “exposes the possibility of the type of error which occurred in this case”.

f. Although this process could in theory disadvantage anyone who put data into that section, I am satisfied that the process put disabled persons at a particular disadvantage when compared to people without disabilities because they were more likely to put data in section 4 which was specifically aimed at recording additional needs and requests for reasonable adjustments.

g. The Claimant was subjected to this practice and was in fact disadvantaged by it in that her data was lost and not put before the investigator.

129 Was this practice a proportionate means of achieving a legitimate aim? The rather confusing evidence I heard from Mr Buckley was that the aim was that in any complaint in which reasonable adjustments were required the Ombudsman wished to make sure they were up-to-date, individually reviewed and that they were not disclosed to the subject of the complaint.

130 His explanation made no sense. The decision to transfer the data was one made at the initial stage before the case was allocated to an investigator. In this case, the data was transferred over within 24 hours of the web complaint form being received. There was no suggestion from Mr Buckley or Mr Pollard that it would be a job for the adviser to decide to edit or alter the contents of section 4 (and why would they) or make any enquiries themselves about how up-to-date the information contained in that section was. Indeed, the complainant would have the right to have their submission considered in its original form and the decision to make or refuse reasonable adjustments requested by the complainant was one for the investigator.

131 It appears that this practice has now ceased.

132 In all the circumstances, although this was by no means the intention, I am satisfied that the practice described to me by Mr Buckley and Mr Pollard did result in discrimination to the Claimant contrary to section 19.

Claim for a breach of Article 6

133 There is nothing inherently unjust in a paper-based complaints system. Regina (Maxwell) v Office of the Independent Adjudicator [2011] EWCA Civ 1236 is good guidance on the way in which such a service as that primarily offered by the Defendant should be viewed, namely not as the equivalent of a rigorous court process but as a relatively informal and proportionate scheme to deal with the vast bulk of complaints.

134 The point the Claimant makes, however, is a different one to that in Maxwell. She points to the fact that she was prevented from proper participation in the service by the Defendant’s failure to offer her the help she said she needed. She has established this above. However, given that the law protects the Claimant by way of the remedies offered under the EQA which I have fully considered I do not consider further determination of this issue is proportionate or would give rise to any separate remedy.

Data Protection Act claims

135. The Claimant claims breaches of the 1st, 7th and 4th principles of the DPA. I consider the 4th and 7th to be the applicable principles. The fourth is “Personal data shall be accurate and, where necessary, kept up to date” and the seventh is “Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data”

136. There are a number of acts complained of by the Claimant:

a. The failure to transfer the information she entered at section 4 of the web complaint form and its subsequent deletion;

b. The transfer of information contained in a form constituting a claim by her personally (case 12) into the file containing her daughter’s enquiry (case 11);

c. The subsequent voiding of case 12;

d. The subsequent deletion of J’s name from case 11;

e. The production within this litigation of a document purporting to be her web complaint form but in fact containing mishandled data.

137. I have described the process under which the information contained in section 4 of the web complaint form came not to be transferred into the new format. On the evidence of Jonathon Buckley I cannot accept that all reasonable steps were taken to put appropriate measures in place to avoid the loss or destruction of that data. The result was that the claimant’s details were not kept accurate or up to date. There was no technical means of avoiding the error. There was no alert triggered when data was not transferred. The failure to transfer the whole of the information automatically exposed a risk that data would be lost in the process of transferring into a new format on each and every occasion. Despite this there was no technical or human oversight to avoid or reduce the risk. Although I am told there was an instruction to the advisers to manually transfer information, the lack of any mechanism to alert the investigator or anyone else to a failure in this regard was unreasonable. There was not even a sufficiently meaningful random audit which could have exposed errors and led more quickly to a resolution across the board.

138. The argument that the information contained in section 4 was adequately covered elsewhere in the form has been rejected above and I do so again in this context. The defence that the breach was inadvertent may be correct but the 7 th

principle specifically protects against accidental loss or destruction.

139. These facts lead me to the conclusion that the failure to transfer the information contained in section 4 and its subsequent deletion constituted a breach of the 7th and/or 4th principles of the DPA.

140. The Defendant tries to explain the decision to transfer the information submitted on her web complaint form in case 12 into case 11 (which was an enquiry belonging to J) was one taken because there were understood to be the same claim. However, on the evidence, this was apparently done without the decision-making process described to me as expected by David Pollard.

141. The Notes and Analysis document amply illustrates the confusion to which this decision led assuming I accept the Defendant’s case that it is the relevant record of the course of the Claimant’ complaint. It is headed with J’s name although David Pollard contends it is the key document in Mrs Janine Blamires’ complaint on behalf of herself and them all. The note of G of 24 September 2012 shows that she had a discussion about J’s competence – which would not have been relevant if the complaint was The Claimant’ own. By 12 November 2012 G records this: “I have asked Sue to change this complaint to Mrs and Mrs [sic] B and remove J’s name. I have not spoken to J, and Mrs B seems to thinks she can complain on her behalf – however, I can address most of the complaint without involving J…” It seems to me that this is clear evidence that the Defendant had in fact disregarded the content of the web complaint form which identified the Claimant as the complainant and assumed wrongly that it was the earlier complaint arising out of the enquiry on J’s behalf. For that reason it had deleted the Claimant’ own claim.

142. I consider that this is a further breach of the principles of the Data Protection Act.

143. Section 13 of the DPA provides at subparagraph (1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.

144. And at (2) An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if—(a) the individual also suffers damage by reason of the contravention, or (b)… (3)In proceedings brought against a person by virtue of this section it is a defence to prove that he had taken such care as in all the circumstances was reasonably required to comply with the requirement concerned.

145. Damage for the purpose of section 13 may be pecuniary or non-pecuniary Google Inc. v Vidal Hall (and others) [2015] EWCA Civ 311.

146. The loss of the information contained in section 4 led to G and then in turn R being unaware of the full nature of the Claimant’ disabilities and being unaware of the request she had made for specific reasonable adjustments. This caused or contributed to the failure to make those adjustments as I have set out above which I was satisfied would have made a difference to the Claimant and which in my judgment is capable of being construed as damage in itself following Vidal-Hall above. However, even if this is wrong whilst the question of whether this would have led to a different, more valuable outcome to the Claimant cannot now be resolved on the balance of probabilities, I am nevertheless satisfied that the Claimant has lost a chance that it might have. The loss of a chance is capable of being quantified and is pecuniary damage. In this case I think the most likely outcome might have been an additional award being recommended for her distress at NYCC’s actions. Having regard to the Defendant’s own guidance on remedies, such awards go up to about £1,000. There were a number of features which might have placed such an award within the middle or even top end of that range such as the length of time over which NYCC’s faults had gone unrecognised, the described impact on the family and the grossly protracted complaints process engaged in by NYCC. I must of course substantially discount for the possibility that she would not in fact have obtained an additional such award or that it would have been at the lower end. I therefore award £250 for the loss of this chance and the non-pecuniary damage.

147. There is no doubt in my mind that the data breaches have caused distress to the Claimant in their own right as well as as a result of the consequences that flowed. I need only look at the very many documents produced by her in these proceedings to try to explain the Claimant’s case to recognise that distress. Aggravating her distress is the way in which the Defendant used its own mishandled web complaint form as a weapon in its defence (producing the form containing the mishandled data in support of the assertion it made at paragraph 30 of its defence that the Claimant had not filled in section 4), the way in which the Defendant resisted the suggestion of a breach and its continued denial of a data protection liability.

148. I do not intend to double-count with damages already awarded under the EQA, which although arising from facts predating the knowledge of the data protection

breaches do compensate for ongoing distress to an extent. There is very little guidance on the appropriate amount of any compensation. In Halliday v Creation Consumer Finance Limited [2013] EWCA Civ 333 awarded £750 for a one-off single incorrect entry on a credit record which did not, in fact, cause any pecuniary loss or damage to his reputation. However, more recently in TLT and others v Secretary of State for the Home Department [2016] EWHC 2217 (QB) damages awarded to 12 claimants were assessed by references to the guidelines for personal injury and ranged from £2,000-£12,000 – most at the lower end of that range. The distress caused in this case all post-dates the receipt by the Claimant of the defence pack which first alerted her to the data breach and does not therefore overlap with the compensation I assess below for breaches of the Equality Act up to and including April 2013. The witness evidence of the Claimant and of her husband and to a limited extent her GP attests to the impact on the Claimant of her distress during these proceedings a significant part of which I attribute to the data protection elements of the claim. I therefore allow £2,250 for this part of the claim.

Quantum on the Equality Act breaches

149. The Defendant has argued that I should look to its own guidance to fix quantum and that £200-£300 would be an appropriate remedy for injury to feelings. They argue it is “difficult” to apply Vento v Chief Constable of West Yorkshire Police [2003] IRLR 102 to this context because that was an employer/employee relationship. I reject their argument. I am quite satisfied that the principles to be applied to an award of compensation for injury to feelings under this Act are those set out in principles for assessing awards for injury to feelings for unlawful discrimination [27]:

"(1) Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation should not be allowed to inflate the award.

(2) Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could….be seen as the way to untaxed riches.

(3) Awards should bear some broad general similarity to the range of awards in personal injury cases. We do not think this should be done by reference to any particular type of personal injury award; rather to the whole range of such awards.

(4) In exercising their discretion in assessing a sum, tribunals should remind themselves of the value in everyday life of the sum they have in mind….

(5) Finally, tribunals should bear in mind….the need for public respect for the level of awards made."

150. The three bands of award set out in Vento remain good law but the amounts have been adjusted in Da’Bell v National Society for the Prevention of Cruelty to Children [2010] IRLR 19 to £600-£6,000 for the lower band of less serious cases such as one-off or isolated incidents of discrimination and £6,000-£18,000 for the middle, serious cases which do not merit the top band of £18,000-£30,000.

151. The Defendant argues that I should place this award – if at all – in the lowest band. They argue that the Claimant issued prematurely rather than “engaging with the PV” and has made things worse for herself by making “constant unfounded allegations of fraud against the Defendant”.

152. I do not agree that the Claimant issued prematurely. She had a 6 month limitation period to meet if she wished to claim under the Act in relation to G’s PV. As I have found the Defendant to have discriminated against her on 6 December 2012 she had to act by 6 June 2013 to be in time. After that the injury was exacerbated by the discriminatory treatment which preceded the issue of the amended PV by R.

153. Moreover, she had been vindicated in many of the findings I have made in this judgment. Whilst she may be wrong to attribute the original acts to malice, it is not surprising that she should be distressed by the Defendant’s continued resistance to all of the facts I have found in her favour.

154. I accept Mr Blamires’ unchallenged evidence contained in his statement dated 1 September 2016: “…the claimant has found the whole process extremely distressing and has on several occasions been reduced to tears by the intransigence of the Defendant in not meeting her disabled needs by making reasonable adjustments. This has led to a deterioration in her condition and a reduction in her ability to fulfil her role as a housewife and mother”.

155. I have decided to limit my award under this heading to compensation for injury to feelings to these acts which took place up until 11 April 2013 because I will consider the impact of behaviour of both parties during the litigation which followed shortly afterwards when I consider the claim for aggravated damages.

156. I had previously considered that this case would not rise above the lowest band. The assessor and I now agree that the cumulative effect of the Defendant’s breaches brings the award into the middle band. However, it is at the lower end of that band in my judgment and I award £7,500 for injury to feelings.

Aggravated Damages

157. The Claimant claims aggravated or exemplary damages. I do not consider that this is a case for exemplary damages, but there are a number of relevant features which in my judgment justify an award of aggravated damages. Those features are primarily associated with the manner in which the claim for discrimination has been defended. The authority of Zaiwalla & Co v Walia [2002] IRLR 697 confirms that this is an appropriate approach, avoiding as it does a need to consider victimisation as a separate claim for conduct during proceedings which by definition always follow the protected acts of an allegation of a breach of the EQA and the issue of proceedings.

158. I have absolutely no doubt that the way in which the defence has been conducted in this case has added to the injury, frustration and distress felt by the

Claimant and that this in turn has at times exacerbated the physical and mental symptoms she suffers as a result of her disability.

159. The acts to which I refer and which together I have concluded merit awarding aggravated damages are as follows:

a. The wrongful assertion contained in paragraph 30 of the original defence that the Claimant failed to take up the opportunity of telling the Defendant about the reasonable adjustments she sought on her web complaint form. This went to the heart of the claim.

b. The fact that notwithstanding being told by the Claimant that this was wrong, it took nearly two years for the Defendant to admit the mistake.

c. That even after two years there was no apology for the fact the defence contained misinformation or acknowledgment of the stress this had caused to the Claimant in having to prove them wrong.

d. That even after two years the evidence of David Pollard asserted that the omission of the information contained in section 4 of the form was a “technical error” and that this was later itself corrected to “human error” in the statement of Jonathon Buckley. The oral evidence I have heard on the issue is also unsatisfactory as I have found the explanation of why it occurred does not make sense.

e. That whilst this misleading information was on the face of the pleadings the Defendant applied to strike out the claim and/or for summary judgment.

f. That the Defendant caused many months delay to the resolution of the proceedings by pursuing its application for a strike out and/or for summary judgment which it then abandoned.

g. The Defendant has produced no fewer than three disclosure lists all purporting to be the complete list. The Claimant should not have had to make applications for specific disclosure but she has done so and was successful in part. Where she has been unsuccessful this has not been as a result of the unreasonableness of her request.

h. The continued dissatisfaction of the Claimant with the process of disclosure is, on the contrary, reasonably grounded in particular in three respects. The first is that the fact that the form produced at page 708 which the Defendant contends is the form put before the investigator simply cannot be that form given that it is blank in numerous fields, not just section 4. Secondly, David Pollard makes a number of assertions in his 26 August 2016 statement which are either based on documents which have not been disclosed or are misleading despite his signature on a statement of truth. I include in that assertions contained in paragraphs 17-19 of his statement as well as the error in paragraph 16. He conceded under oath that I could not rely on his evidence in these paragraphs. Thirdly, the Notes and Analysis document, which is asserted to be the key document containing a record of the work done in the complaint is highly unsatisfactory in that it is purportedly a record of work done on J’s “complaint” and under her name rather than that of the Claimant and contains, for example, no record of any work done by R at all.

i. For all its assertions about its limited resources – so limited that I am told that they would not even stretch to offering the Claimant a face-to-face meeting at the outset of this process - the Defendant tells me it has spent in excess of £80,000 defending this case. The claimant is a litigant in person. She has faced many months of responding to an application to strike out her claim which were entirely unnecessary in the light both of my conclusions and the withdrawal of that application at the last minute. Her case has been opposed in every way with no acknowledgement of those matters which in my judgment could easily have been conceded.

160. With all these matters in mind I intend to award the sum of £2,500 by way of aggravated damages.

161. I will order the Defendant to pay the Claimant’s costs to be assessed if not agreed.

162. The orders I intend to make are therefore as follows:

a. A declaration that the Defendant discriminated against the Claimant contrary to sections 15, 19, 20 and 29 of the Equality Act 2010 in the course of their investigation of her complaint against NYCC made on 16 August 2012;

b. A declaration that the Defendant breached the 4th and 7th principles of the Data Protection Act 1998 in failing to keep the Claimant’s data accurate and up to date, in failing to take appropriate technical and organisational measures to avoid the accidental loss of personal data and by destroying her personal data;

c. Judgment for the Claimant in the sum of £12,500 made up of damages for the Equality Act breaches of £7,500, for the Data Protection breaches of £2,500 and aggravated damages of £2,500.

d. The Defendant will pay the costs ordered to be paid on 30th June 2016 to the Claimant in the sum of £750 within 14 days.

e. [Subject to submissions on the question] The Defendant will pay the costs of the claimant to be assessed if not agreed.

163. I will receive submissions on the question of costs if necessary. If no submissions are received I will order that the Defendant pay the costs of the Claimant to be assessed if not agreed.

HANDED DOWN IN DRAFT 25 APRIL 2017

DISTRICT JUDGE JOANNA GEDDES