Scottish Sheriff Court Decisions

A4687/97

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutor of 24 August 1998 complained of; finds the appellant liable to the respondent in the expenses of the appeal; allows an account thereof to be given in and remits the same, when lodged, to the Auditor of Court to tax and to report; certifies the appeal as suitable for the employment of junior counsel.

This is an appeal in an action for damages brought under the Disability Discrimination Act 1995. I am told that, so far as is known, this is the first occasion when the particular part of the Act which was invoked here has been the subject of an appeal anywhere in the United Kingdom. That being so, it is desirable that I should set out at some length both the relevant facts of the case and the submissions which were advanced on behalf of the parties. (In relation to the submissions I should mention that both counsel for the pursuer and the solicitor for the defender lodged detailed written submissions in advance of the appeal hearing. In my view that is a highly desirable practice since it not only assisted my preparation for the hearing but it also had the effect of shortening the actual hearing to a significant extent.)

The relevant facts in the case are effectively not in dispute. In any event the sheriff's findings-in-fact, made after proof, are not now open to challenge since for some reason or other the evidence in this case was not recorded. Consequently, in so far as the determination of this appeal is dependent on matters of fact, I am bound to proceed solely on the basis of the facts as found by the sheriff. Subject to that, the relevant facts appear to be as follows.

The pursuer, who is 27 years of age, is a blind person, having lost his sight in 1984. He works as an assistant television producer with the BBC, and apparently he retains his mobility with the assistance of a guide dog. The defender owns and operates a guest house in Edinburgh. In addition he is a part-owner of a ground floor flat in Edinburgh which he acquired in May 1997. Following its purchase that flat required some work to be carried out on it. In particular, work had to be done to replace a missing handrail alongside five steps which lead to a landing in front of the common entrance door to the building where the flat is located. At the material time there was no handrail in place alongside the steps. To the left of the steps there was a drop of about 21/2 feet from the landing to pavement level, and on the right of the steps there was a drop of about 11/2 feet to an area enclosed by a small wall. When the defender purchased the flat his intention was that it would be let out as self-catering accommodation.

In June 1997 the pursuer was anxious to secure accommodation in Edinburgh for the purpose of a visit to the Edinburgh Festival during the last week in August of that year. After many unsuccesful attempts to find accommodation he eventually telephoned the defender on 25 June. According to the sheriff's findings the defender consulted his diary and advised the pursuer that he did not have a vacancy in his guest house for the whole of that week. However, he told the defender that he had the flat available at a cost of £400 per week. The pursuer expressed interest, but he then went on to state that he was blind, and to inquire whether there would be any objection to his guide dog. At that stage the defender explained that work on the outside of the building still had to be completed, and that he did not know if the flat would be suitable for the pursuer. He thought that the steps would be dangerous for a blind person without an adequate handrail. The defender then consulted his wife who agreed with his view. On returning to the telephone the defender advised the pursuer that he thought access to the flat would be unsafe for him, and that it would not be suitable.

It appears that the pursuer then raised his voice and, shouting, accused the defender of refusing to take his guide dog. The defender denied that and said that his concern was that the entrance would be unsafe for the pursuer. The telephone conversation appears to have come to an end at that stage, and the eventual outcome was that the present proceedings were raised just under six months later.

Before leaving the facts of this case I should just add that the sheriff has also found that throughout the summer of 1997 the defender, through his solicitors, contacted the builders in an attempt to have the missing handrail put in place, but by the end of August that had still not been done. On two occasions during that period the defender and the proprietor of the top-floor flat in the building in question complained to the Environmental Health Department of the City of Edinburgh Council. The sheriff has found that, on 21 August 1997, an inspector from that Department visited the premises and advised that the steps constituted a danger to the public.

The Disability Discrimination Act 1995 (hereafter "the 1995 Act" or "the Act") has been described as a piece of social legislation and, as its long title makes clear, its purpose is "to make it unlawful to discriminate against disabled persons in connection with employment, the provision of goods, facilities and services or the disposal or management of premises". Part III of the Act deals with discrimination in respect of goods, facilities and services and, at the end of the day, the case advanced by the pursuer in the present action was founded on sections 22 and 24 in that Part of the Act.

So far as relevant, section 22 of the Act provides:

(b) by refusing to dispose of those premises to the disabled person"

Section 24 of the Act is headed "Meaning of 'discrimination'". So far as relevant for present purposes, that section provides:

It was a matter of concession in the present case that the defender had been prima facie guilty of discrimination as defined in the Act. However, he sought to maintain at proof, and again in the appeal, that his treatment of the pursuer had been justified in terms of subsections (2) and (3) of section 24 which I have just quoted. After proof the sheriff favoured the defender's position on this matter, and he accordingly rejected the pursuer's claim for damages. He went on, however, to express the view that, had he been disposed to find in favour of the pursuer, he would have awarded a sum of £600 as damages. The pursuer has now appealed against the sheriff's decision on the merits of the case, but he did not seek to challenge the sheriff's decision on the matter of damages. Accordingly, the appeal was solely concerned with the interpretation of the relevant provisions in the Act in the context of the facts as found proved by the sheriff.

The grounds of appeal lodged on behalf of the pursuer were two in number. The first contended that the sheriff had erred in his construction of the health and safety "justification" as set out in section 24 by concluding that the test for justification should be a subjective one. It was contended that, on the contrary, the test should be an objective one in the light of all the relevant evidence. The second ground of appeal for the pursuer was that the sheriff had failed to take into account the guidance contained in the Code of Practice. The Code in question is one relating to rights of access, goods, facilities, services and premises which was issued by the Secretary of State for Social Security in July 1996 (SI 1996/2987). Both counsel for the pursuer and the solicitor for the defender appeared to proceed on the basis that that Code had been issued by virtue of the terms of section 53 of the Act. However, that section makes provision for the issue of codes of practice in relation to employment matters; and, as appears from the title page of the Code to which I have referred above, it was issued by virtue of the provisions of section 51(2) which allows for the issue of codes of practice on the recommendation of the National Disability Council. However, that distinction does not appear to matter for present purposes since the correct Code was in fact referred to and, moreover, the provisions which were founded on, particularly by counsel for the pursuer, are in identical terms both in section 51 and in section 53. Those provisions, as contained in section 51, are in the following terms:

Notwithstanding the separate grounds of appeal which I have mentioned above, in fact counsel's submissions on behalf of the pursuer to a large extent ran the two grounds into one. He began by submitting generally that the overall purpose of the Act is to challenge prejudice in relation to disabled persons, and he submitted that that purpose could never be achieved if compliance with the Act were to be determined solely by reference to the subjective opinion of those dealing with the disabled. A subjective test, he submitted, would merely reinforce existing prejudices and would make the Act unworkable. Moreover, it was submitted, the overall purpose of the Act requires that all parts of it, that is to say those dealing with employment as well as those dealing with the provision of services and premises, should be construed and applied in a consistent manner.

Counsel went on to note that the sheriff appears to have founded his decision at least in part on the fact that, in relation to credibility, he preferred the evidence of the defender and his wife to that given by the pursuer. That, said counsel for the pursuer, was an irrelevant issue in the present case which turns solely on the correct interpretation of section 24 of the Act. On that point I should say at this stage that, while I agree with counsel that at the end of the day this case falls to be resolved by statutory interpretation, I nonetheless consider that the sheriff was fully entitled to express his views on credibility in so far as a crucial issue in the present case is the factual background against which matters of statutory interpretation have to be considered. That is particularly so in relation to the telephone conversation which I have earlier described. Since in any event the sheriff at the end of the day decided the case on the basis of his interpretation of the statute, and not solely on issues of credibility, I reject this criticism of what has been said by the sheriff.

Counsel for the pursuer went on to submit that in a case like the present one, where prima facie discrimination has been admitted or proved, the onus is on a defender to establish the existence of the defence of justification, as provided for by section 24(1)(b). Given the terms of the section, that is undoubtedly correct; and the solicitor for the defender did not seek to suggest otherwise. However, counsel went on to submit that in the present case the defender failed to discharge that onus, and that the sheriff had been wrong to conclude that he had done so.

In support of that submission counsel founded strongly on the fact that, in his judgment, the sheriff makes no reference to the Code of Practice. That, it was submitted, suggested that the sheriff had failed to have regard to the Code notwithstanding the existence of clear authority to the effect that a court or tribunal should have such regard. Reference was made in that connection to Ridout v. TC Group, [1998] IRLR 628, at para 28; Goodwin v. Patent Office, [1999] ICR 302, at 307; and Kenny v. Hampshire Constabulary, [1999] ICR 27, at 37. It is undoubtedly the case that the sheriff makes no reference to the Code of Practice in his judgment; and it is also, of course, the case that section 51(5) of the Act contains a mandatory requirement that provisions in a code "shall" be taken into account. However, that requirement is qualified by the words "if any provision of a code appears ... to be relevant", and I shall have more to say later regarding the relevancy of the Code in the circumstances of the present case.

Counsel then turned to examine some of the provisions of the Code which, he submitted, relate to circumstances such as those in the present case. He referred in particular to para. 1.7 which states:

Reference was also made to para. 3.4, which states that "Even where you think that you are helping the disabled person, but are nonetheless refusing to serve them, you may still be breaking the law"; to para. 5.2, which states that "you are expected to take account of all the circumstances, including the information available to you, at the time"; and to para. 5.7, which states that "disabled people should not be prevented from living where they choose through unfounded concerns for safety". Counsel submitted that the sheriff had obviously failed to have regard to the foregoing provisions in the Code, and that they in any event reinforced his contention that an objective test required to be applied to the provisions of section 24.

Returning to the provisions of that section counsel went on to submit that, in order to succeed in the present action, it was for the defender to show that his admittedly discriminatory action was both necessary and reasonable. It was not enough, it was submitted, for the defender to say that he had acted in the interests of the pursuer. As is shown in the Code, it is for a person in the defender's position to enter into dialogue with the disabled person in order to ascertain not merely the extent and nature of his disability but also the nature and extent of his abilities. The present defender had failed to do that, and the sheriff had been wrong to hold that it was enough that the defender himself was of opinion that a letting of the flat to the pursuer might prejudice his safety.

In support of his earlier submission that it would be unsatisfactory if the employment parts of the 1995 Act and the services parts of the Act were to be construed differently, counsel made reference to Morse v. Wiltshire County Council [1998] ICR 1023 which was a case involving sections 5 and 6 of the Act. Having considered those sections in some detail, and having described the steps which an industrial tribunal ought to follow in such a case, Bell J., delivering the judgment of the Employment Appeal Tribunal, said (at p. 1034C):

Counsel submitted that the same objective criteria should apply in a case involving section 24. The sheriff had not applied such a test in the present case, and accordingly he had erred in concluding that the defender's refusal to let the flat to the pursuer was reasonable within the meaning of the section. In those circumstances, it was submitted, the appeal should be allowed.

In response the solicitor for the defender began by drawing attention to the precise wording of section 24(2) where it is provided that justification will be established where a person can show that in his opinion a condition was satisfied, and that it was reasonable for him to hold that opinion. That test, it was submitted, is quite different in character from the test laid down in the employment provisions in the Act. Reference was made to section 5(1)(b) of the Act where it is provided that unlawful discrimination will arise where an employer "cannot show that the treatment in question is justified". The absence of any reference to "opinion" in the foregoing provision demonstrates, it was submitted, that the test in employment cases is a much higher, and more objective, one than the test in services cases.

In support of the foregoing submission reference was made to the General Note to section 20 of the Act as it appears in Current Law Statutes (the relevant provisions of section 20 being in the same terms as those in section 24). The author of that General Note there states:

While acknowledging that the foregoing passage is in no way authoritative, the solicitor for the defender submitted that it, and in particular the quotation from what was said by the Minister of State, lent weight to his contention that the test in the employment provisions is stricter than, and different from, the test in service cases such as the present one. That meant, he said, that little guidance in relation to the construction of section 24 is to be found in decided cases dealing with the employment provisions in the Act, and that counsel for the pursuer was in error when he submitted that employment and services provisions in the Act should all be construed consistently and to the same effect.

The solicitor for the defender went on to make clear that he was not suggesting that it would be enough simply that the defender held the opinion that his decision not to let the flat to the pursuer was necessary in order not to endanger the pursuer's safety. He accepted that the defender also required to show that that opinion was a reasonable one in all the circumstances of the case. He submitted, however, that the question of the reasonableness of the defender's opinion had been fully and properly addressed by the sheriff at pages 10 and 11 of his judgment.

Mention was then made of a passage in the written submissions tendered by counsel for the pursuer where it is suggested that the word "necessary" in section 24(3) must also be given an objective interpretation. That, it was submitted, is to read the word out of context since, looking at the section as a whole, it is clear that the word is closely related to the "opinion" which is mentioned in section 24(2)(a). That, it was said, reinforced the view that the pursuer's whole approach to the interpretation of the statute is misconceived.

The solicitor for the defender then turned to the Code of Practice. He began by conceding that the sheriff makes no mention of it in his judgment, but he went on to submit that that does not necessarily mean that the sheriff had no regard to it. His main submissions, however, were to the effect that the Code does not support the pursuer's case. In particular, he submitted that the Code does not impose on a person in the position of the defender a duty to, as it was put by counsel for the pursuer, "enter into dialogue" with a disabled person prior to forming his opinion as to whether or not to make a flat available. In that connection attention was drawn, by way of illustration, to an example which is given in para. 5.2 of the Code. That example is:

The solicitor for the defender noted that there is no suggestion there that the swimming pool attendant was under a duty to make further inquiry before forming his opinion. Indeed, it was observed, the paragraph in question in the Code goes on to indicate that it would probably be against the law if the swimming pool attendant were to persist in refusing the child admission despite being told subsequently by the child's mother that the child is a competent swimmer; but that is the position on the basis of subsequent information, and does not affect the position when the swimming pool attendant reached his original opinion. In the present case, it was submitted, subsequent information in fact supported the opinion reached by the defender since, as I have noted earlier, an inspector from the Environmental Health Department, in August 1997, advised that the steps constituted a danger to the public. Even viewed objectively that, it was submitted, supported the defender's opinion.

The solicitor for the defender then turned to consider paragraph 1.7 of the Code in particular since it had been strongly founded on as supporting the submission that the defender had been under a duty to make further inquiries before reaching his opinion as to the suitability of letting the flat to the pursuer. As I have noted earlier, para. 1.7 is the one which ends with the words: "When in doubt, ask the disabled person". The solicitor for the defender challenged the supposed effect of those words in the context of the present case on four separate grounds.

First, he rejected any suggestion that the words in question had the effect of imposing an absolute duty to ask questions of a disabled person before forming an opinion as to whether or not to provide a service. Had such a duty ever been intended, he submitted, its proper place would have been in the statute itself and not in a Code of Practice. In any event, even the words in the Code were not such as could reasonably be construed as giving rise to such an absolute duty.

Second, the solicitor for the defender submitted that the words "When in doubt" themselves had a subjective element which negated any sort of absolute duty. It might, he suggested, be perfectly reasonable not to have a doubt at all, and in that event there could be no question of a duty to engage in further dialogue in order to see whether a doubt might arise.

Third, the solicitor for the defender referred to the terms of the telephone conversation between the pursuer and the defender as those appear in the sheriff's findings in fact. Those findings suggest, it was submitted, that the defender was given no opportunity to ask questions of the pursuer. In any event, the mirror image, as it was put, of any obligation to ask questions is an obligation to provide information, but there is no finding by the sheriff that the pursuer attempted to bring relevant matters to the notice of the defender and was prevented from doing so.

Fourth, and finally, the solicitor for the defender observed that, even if the defender had asked further questions, he might still have been of opinion that the flat would be unsafe for the pursuer. It could not be suggested that in that situation the defender would be under a duty to ask even more questions so that he might reach a different opinion. For all of the foregoing reasons it was submitted that the pursuer had failed to demonstrate that the terms of the Code of Practice, even if they had been analysed in the sheriff's judgment, would or should have led him to a different conclusion from that which he in fact reached.

Having considered the relevant provisions in the Act I am satisfied that, for the reasons advanced by the solicitor for the defender (which I have summarised earlier), the employment provisions in sections 5 and 6 are significantly different from the provisions in section 24 with the consequence that no assistance in the construction of the latter section is to be derived from cases dealing with the employment provisions. It is therefore necessary to look in detail at what is actually contained in section 24. Having done so, I have come to the conclusion that it is unhelpful to seek to construe the provisions of that section as requiring either a wholly objective or a wholly subjective interpretation. In my opinion the provisions require an interpretation which is in part objective and in part subjective. Moreover, I am of opinion that the manner in which the provisions fall to be applied in a particular case will depend to a large extent on the facts and circumstances of that case.

If one looks at section 22(1)(b) in conjunction with section 24(1) it is clear, as was conceded in the present case, that the defender, prima facie, acted unlawfully in that, having a power to dispose of premises, he refused to dispose of them to the pursuer. In so doing, he treated the pursuer less favourably than others for a reason relating to the pursuer's disability. In that situation, in order to escape the consequences of that discrimination it was for the defender to show, in terms of section 24(1)(b) that his treatment of the pursuer was justified. That then brings us to the provisions of subsections (2) and (3) in section 24.

Looking first at subsection 2(a) along with subsection (3) we find that the defender's discriminatory treatment of the pursuer would be justified if, in the defender's opinion, the treatment was necessary in order not to endanger the pursuer's safety. So far as that part of the test is concerned, there can be little doubt in my view that it is subjective in the sense that what is in issue is the opinion of the person carrying out the discriminatory act. I should also say that, contrary to what was submitted by counsel for the pursuer, I do not construe the statute as meaning that, as an objective fact, the treatment in question should have been necessary for the pursuer's safety. What the subsections require is that in the opinion of the defender the treatment was necessary. Subsequent evidence might well reveal that the treatment was in fact not necessary, but what matters at the time when the treatment took place was what the defender considered to be necessary at that time.

Now that does not mean, of course, that a defender can get over the hurdle presented by this part of the statute simply by saying that in his opinion it was necessary for the pursuer's safety to act as he did. His evidence in that regard must be accepted by the court as being truthful and not simply a fabrication concocted after the event. In the present case, however, (and this is where issues of credibility are in my view of relevance) the sheriff has accepted that the defender's refusal to let the flat to the pursuer was motivated by concern for the pursuer's safety in view of the absence of a handrail alongside the steps leading to the flat's front door. In that situation, and on the basis of what I consider to be a correct construction of this part of the Act, I consider that the sheriff was entitled to hold that the defender had satisfied the requirements of subsections (2)(a) and (3)(a) of section 24.

However, that is not the end of the matter for a person in the position of the defender. In terms of subsection (2)(b) he must go on to establish that it was reasonable, in all the circumstances of the case, for him to hold the opinion in question. In my opinion that part of the test requires an objective assessment of all the relevant circumstances. But that, of course, raises a question as to what circumstances are relevant for this purpose; and in particular it raises the question of whether a person in the defender's position is under some sort of obligation to make inquiries of a disabled person before forming any opinion.

In considering this aspect of the case it may be helpful at the outset to make clear that "the relevant circumstances" do not extend to include all of the facts which may be established at a much later stage, for example during proof in a litigation. Counsel for the pursuer did not suggest that the reasonableness of an opinion should be tested, ex post facto as it were, by objective reference to all of the facts which might come to light at a later stage, and I am of opinion that counsel was correct to adopt that position. However, as I have noted earlier, he founded strongly on the submission that the defender should have engaged in dialogue with the pursuer so as to obtain more relevant facts than were immediately available to him. That submission bore, of course, to be founded on the Code of Practice, and in particular on the passage which I have already quoted from para. 1.7.

In my opinion counsel's submission on this point is crucial if the pursuer is to succeed because, like the sheriff, I consider that the opinion reached by the defender, on the facts as then known to him, was a reasonable one for him to reach. He knew that the pursuer is blind and uses a guide dog; he knew that the steps leading up to the flat had no handrail with the result that there was an unguarded drop on each side; he considered that that posed a threat to safety (the reasonableness of which view was subsequently confirmed by the inspector from the Environmental Health Department); and he had the view of a second person, namely his wife, which confirmed his own opinion as to the risk which the steps might pose to the pursuer. Looking objectively at the foregoing facts, I am of opinion that the sheriff was fully entitled to hold that, in terms of subsection (2)(b) of section 24, it was reasonable for the defender to hold the opinion which he did.

The question then is whether the defender should have endeavoured to obtain more information before finalising his opinion. The Act itself does not impose any such duty, but I accept that the Code contains a suggestion that some inquiry may be desirable. In my opinion, however, the need for further inquiry will depend very much on the facts and circumstances of a particular case. If the owner of a flat which is available for letting receives an inquiry from a person who uses a wheelchair, and the owner is unsure whether certain doors in the flat will be wide enough to let the wheelchair pass through, then it is probably reasonable to expect some inquiry to be made as to the measurements of the wheelchair before declining to let the flat. That, it seems to me, is just the sort of situation where the closing words of para. 1.7 of the Code ("When in doubt, ask the disabled person.") would be of relevance. In the present case, however, the facts as found by the sheriff appear to me to demonstrate that the pursuer himself gave the defender no opportunity to pursue any further inquiries. The sheriff's findings, which I have mentioned earlier, are that, as soon as the defender advised the pursuer that he thought the flat would be unsafe for him, the pursuer shouted, accused the defender of refusing to take his guide dog, and brought the telephone conversation to a conclusion. I agree with the solicitor for the defender that in a situation such as this one it is not unreasonable to expect the disabled person himself to offer some further information which might influence the other person's opinion. The pursuer in this case did not do that, and in my view that failure, coupled with the abrupt and angry ending of the telephone conversation, must mean that the defender cannot be open to any criticism for not making further inquiry of the pursuer.

In the result I do not consider that the sheriff's decision is open to challenge on account of the fact that he makes no reference to the Code of Practice. In my opinion the Code is simply not of assistance in the circumstances of the present case. Since I am otherwise of opinion that the sheriff reached the correct decision, it follows that the appeal must be refused. It was a matter of agreement that the expenses of the appeal should follow success, and I have accordingly awarded them in favour of the defender. Counsel for the pursuer invited me to certify the appeal as suitable for the employment of junior counsel, and I have done so. That motion was not opposed, and in any event I consider that the novelty of the issues raised in the appeal fully justified the instruction of counsel.