ZH v Commissioner of Police for the Metropolis [2013] EWCA Civ 69

Subjects: Disability ā€“ Discrimination in the provision of Services ā€“ Reasonable Adjustments

C was severely autistic and epileptic. He claimed damages arising out of discriminatory treatment by police officers. A County Court Judge upheld his claim. The Police (D) appealed to the Court of Appeal.

Facts

C visited Acton swimming baths and became fixated with the water. He stood fully clothed beside the pool for 20 minutes. The lifeguards became concerned. C's carer told the pool staff that they must not touch him as he was autistic and he would jump in. C would not move away from the poolside and the manager, having lost patience, called the police. The Judge held that it would have been clear to those observing C that he was disabled. C was making high pitched squeals, jumping up and down and rocking back and forth. The police arrived in full uniform and spoke to the carer. They expressed the view that C needed to be moved as he was in danger of falling in. One officer touched the Claimant gently on the back to gauge what his reaction might be. C moved closer to the water. The officers tried to grab Cā€™s arms to stop him going in. C jumped into the water. The lifeguards formed a cordon around C to try and persuade him to move to the shallow end and out of the pool. C was enjoying the water and splashing around. It took about 5 minutes to move him to the shallow end. During this time the officers did not take advice from the carers and did not attempt to formulate a plan for the safe removal of C from the pool. No advice was proffered by the carers.

C was eventually lifted out of the pool, struggling, and handed to police officers. Five officers restrained him. The carers asked the police not to restrain him physically as he was autistic and epileptic. The officers ceased their use of force only when two pairs of handcuffs and leg restraints were used. C became very distressed by the restraint. C was taken into the carpark and placed in a cage in a police van. His carers were permitted to see him through the cage but not to enter it. C suffered psychological trauma as a result of his experiences.

Held

The Court of Appeal dismissed the appeal. D had a duty to make adjustments to the police force's policy on control and restraint. That policy permits officers to use force equal to the level of resistance perceived by them: if they cannot deal with a situation with verbal communication they can proceed to use the next level of force. There was a duty to make adjustments to this policy because of the relative disadvantage it caused to severely autistic persons who could not communicate verbally. Adjusting the policy did not make practical policing unduly difficult or impossible. The authority had to take such steps as it was reasonable to take in all the circumstances of the particular individual case. The officers knew that the C was autistic and epileptic and should have known that autistic persons were vulnerable and have limited understanding.

Comment

D appeared to argue that adjusting its policy would require officers to make medical diagnoses and was therefore unreasonable. However, D admitted that a duty to make adjustments had arisen in this case and the judge held that the officers knew or ought to know that C was disabled and disadvantaged by D's PCP (since knowledge is necessary for the duty to arise). The Court of Appeal upheld the judge's finding that, in the circumstances of this individual case, it was reasonable for D to adjust its policy on restraint.

Arguments were also made under the ECHR but are not dealt with here.