Disabled campaigners travelled from across the country this week to show support for a fellow activist as she took on justice ministers in the high court over the ruinous costs disabled people can face when they take disability discrimination cases.
If she wins, Esther Leighton could give hope to thousands of other people who would otherwise have to abandon their discrimination legal actions because of the risk of having to pay their opponents’ costs if they lose.
She was supported by a string of leading disabled campaigners who travelled to the high court in London on Tuesday to highlight the importance of her legal action.
Leighton, co-founder of the disabled-led campaigning organisation Reasonable Access, has taken many actions against service-providers for discrimination under the Equality Act.
She has often represented herself, to avoid having to pay a lawyer. Her successful cases have often persuaded business to start complying with the Equality Act, and to become accessible to wheelchair-users for the first time.
But she has often had to withdraw from more complex cases because she could be asked to meet the other side’s costs if she loses the case.
Leighton was supported by about 15 disabled people in court for the one-day trial, including as many as nine fellow wheelchair-users.
One of her supporters, Natalya Dell, said the level of support for Leighton showed that she was “not alone” and that one of the government’s planned lines of attack in the case – that she was only taking the case because she was litigious – was simply wrong.
She said: “The government did not raise their ‘only Esther’ argument in their expanded arguments. We clearly made an impact and showed that Esther is not alone.”
She added: “My first discrimination case against HMRC for disability discrimination (settled in my favour) would have been impossible under the current system, so Esther is taking this case for all of us who wish to challenge discrimination using the Equality Act.”
The disabled people’s organisation Inclusion London intervened in the case to share its evidence about the barriers disabled people face when challenging discrimination, and the impact this has on their lives.
Svetlana Kotova, director of campaigns and justice for Inclusion London, said: “It is left to us to police and enforce the Equality Act 2010, but doing it is very difficult and often impossible.
“The risk of having to pay thousands in costs if you lose is a huge barrier which puts people off even before they start.
“This is why the Equality Act largely remains a dead letter, we experience discrimination on a daily basis, and organisations choose to adopt a ‘let’s see what we can get away with’ approach, instead of making their services accessible.
“We are grateful to Esther for bringing this case and we stand in solidarity with her.”
Another of the disabled activists who travelled to the Royal Courts of Justice (pictured) to show his support for Leighton was Doug Paulley, who has himself taken disability discrimination cases through the courts.
He said: “I went to support Esther, who is amazing, and also to support the right of disabled people to take discrimination cases to court.
“For the past seven years, government rules have meant that disabled people usually can’t take court cases without significant risk of bankruptcy.
“Under current rules, I could not have started the case against First Bus.
“This could be sorted with a simple and minor rules change, removing one of the many substantial barriers to enforcing disabled people’s rights. It must happen.”
Alan Benson, chair of Transport for All, said the Equality Act 2010 was “one of a very few weapons with teeth available to disabled people to assert their rights”, but presented “a very real personal financial risk to exercising that lever”.
He said: “It’s an indication of the importance of this case just how many disabled people with a whole range of impairments came from across the country to be present.
“The government barrister cited a fear that if this case succeeds the courts would be flooded with cases from the country’s over 13 million disabled people.
“If true then this simply emphasises just how necessary this tool is to correct systematic and institutional discrimination.
“We believe that empowering individuals in this way could have a huge positive impact across the transport sector.”
Eleanor Lisney, another of the disabled campaigners who supported her in court, thanked Leighton and her legal team for taking the case.
She said: “I was there to show support for Esther because it is an important case for all of us who face discrimination almost on a daily basis.
“Not many of us have the knowledge, determination, energy and courage to take this on.
“As disabled people, we have rights but access to those rights is something else.”
Leighton said this week: “These cases are important because they are about my daily experience.
“Getting into a cafe or a shop may not sound significant to a lot of people, but it is this daily discrimination that excludes me and many disabled people from society.”
She added: “I can’t pay after filling my car up at many garages because of the single steps they have into their shops, but because of the petrol company’s complex franchise model, it’s impossible for me to challenge it without risking being landed with a large bill.
“This loophole means discriminatory service providers don’t change their practices as they know they won’t be challenged, resulting in thousands of disabled people being unable to access basic services on a daily basis.”
Leighton, who is represented by legal firm Deighton Pierce Glynn (DPG), is hoping her legal challenge will extend a system called Qualified One Way Cost Shifting (QOCS), which DPG says works “very effectively” for personal injury claims, so that it can also cover Equality Act cases.
This would allow disabled people and others to challenge discrimination more easily by reducing the financial risk and increasing access to legal representation.
The case is being funded by the Equality and Human Rights Commission.
Leighton said: “I’d be delighted if this case improves disabled people’s access to justice.
“Ultimately, I wish the Equality Act was adequately enforced so I didn’t have to take cases, as the costs of doing so vastly exceeds any compensation awarded, but until then I will continue to challenge discrimination to achieve the shifts in society we so sorely need.”
Judgement on the case has been reserved to a future date.
The Ministry of Justice said it would consider any judgement made by the court.
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