Ladd v London Borough of Bromley [2012] EWCA Civ 1586

Subjects: Public Authorities – Direct Discrimination – Assessment of Disability

Facts

C suffered from a weakened leg and damage to her back as a result of contracting polio as a child. C, a “Blue Badge” holder, applied for a new badge from D when she moved to D's Borough. ”Blue badges” are awarded to disabled drivers under the Disabled Persons (Badges for Motor Vehicles) (England) Regulations 2000. It was D's standard policy that they did not issue badges to new applicants without an assessment by an Occupational Therapist. C said she could not attend an assessment and that evidence from her GP should be sufficient. A proposal was eventually made that the eligibility assessment should take place at C's home and C was granted a “Blue badge” as a result. C nevertheless applied for damages alleging disability discrimination pursuant to s 21D(1) and (2) of the DDA 1995 and breach of her Article 8 rights under the ECHR. DJ Silverman awarded damages of £5000 for disability discrimination and rejected the claim under the HRA 1998.

Held

The Court of Appeal held that there was no less favourable treatment. C had claimed that the less favourable treatment was insisting that she should allow an Occupational Therapist into her home to carry out an assessment. Her comparator was a person who was able to attend the assessment centre. They would not have been treated in this way. The Court of Appeal found that this was not an example of less favourable treatment but a concession made in C’s favour. The Court held that the correct comparator ought to have been an applicant for a ’’Blue badge” who was unable to attend the centre for assessment for a reason unrelated to disability or perhaps an applicant who was claiming some other disability benefit who was unable to be assessed at the centre for a reason unrelated to disability. There was no evidence as to the treatment of these comparators and D's policies required all applicants were to be treated the same way. The appeal against the finding of indirect discrimination was allowed. There was no evidence of finding that, as a group, applicants for “Blue badges” would find it difficult to attend assessment centres. This was a “unique” case. Finally, the District Judge erred by not considering what was reasonable from D's point of view, in particular the need to deter fraudulent applications for “Blue badges” and in following Department of Transport Guidelines.

Comment

This is likely to be a case which is confined to its facts and the Judges raised a warning note about claimants who bring judicial review proceedings (with a cost to local taxpayers) when public bodies have taken steps to be accommodating, as D had been in this case. At the end of their judgment, the Court of Appeal highlighted the importance of courts considering what was reasonable from the local authority's point of view and that in this case as a matter of evidence, a fact which was strongly in D's favour was that D were prepared to carry out and assessment in C’s home.