Access to consultations and public engagement discrimination guide

Download this guide as a PDF here: Discrimination guide – Public engagement and consultations

Download this guide in Easy Read here: Discrimination guide – Public engagement and consultations (Easy Read)

About this guide

We experience discrimination on a daily basis. Many of us don’t always realise that what is happening is against the law, and others feel unable to do anything about it.

That’s why we put this guide together.

These guides look at specific problems Disabled people experience. They will help you to identify whether you have experienced discrimination and will take you through the process of challenging discrimination step by step. You will find template letters you can use, practical tips on collecting evidence and sources for further information and advice.

The law has prohibited discrimination against Disabled people for more than 20 years, and yet we still face many barriers and sometimes find it impossible to access services. This is largely because it is left up to us to enforce this law. By taking action to combat discrimination, you aren’t only making changes for yourself: you are improving things for other Disabled people.

Contents

1. What the law says

2. What you can do if things go wrong

3. Differences between complaints and legal action

4. Collecting evidence

5. How to make a complaint

6. Taking legal action

What the law says

https://www.youtube.com/watch?v=rUHoPXdu9ng

Public bodies such as government departments, local authorities, and clinical commissioning groups are required by law to engage with the public when making decisions that may affect their lives. The Equality Act 2010 requires public bodies to take steps to make sure their engagement mechanisms are accessible to Disabled people.

Public bodies such as local authorities, government departments, and clinical commissioning groups (CCGs) are required by law to engage with the public when making decisions that may affect their lives.

This is usually done when they develop new policies or want to make significant changes to the way services are delivered. Engagement often takes the form of a consultation published on the organisation’s website, asking those who are interested to send their views. Sometimes engagement can be in other forms, which could run alongside the online consultation. This includes surveys, meetings, and focus groups. You can read more about the legal duties local authorities and CCGs have to involve Disabled people in decision-making processes in this Advice note on the legal framework for the involvement of Disabled people.

The Equality Act 2010 requires public bodies to take steps to ensure their engagement mechanisms are accessible to Disabled people. These could include:

• providing consultation materials in alternative formats
• providing communication support at public meetings
• holding engagement meetings at accessible venues
• paying or arranging for support at meetings.

Public bodies are prohibited from discriminating against Disabled people in the way they undertake their engagement activities. This includes situations where:

• the type of engagement excludes certain groups of Disabled people – for example, if there is only an online consultation that is not in an accessible format, some people with learning difficulties or Deaf people would find it hard to respond
• the consultation period is too short, or not enough notice is given for meetings, which could make it impossible for some groups of Disabled people who need to arrange assistance to take part.

Public bodies can only run engagement exercises that make it extremely difficult or impossible for Disabled people to take part in, if they can show they are doing it for a very good reason and there is nothing they could reasonably do to make it more accessible.

When designing their engagement mechanisms, public bodies need to anticipate the barriers Disabled people might face and take steps to address those barriers.

The Equality Act also applies to public meetings held by public bodies and it requires public bodies to ensure Disabled people can access those meetings like everybody else.

If you are concerned about the inaccessibility of the consultation – including lack of information in alternative formats, lack of engagement activities that are fully accessible to different groups of Disabled people, or lack of support to enable Disabled people to respond to it – you should raise your concerns as soon as you can. It is always better to do it before the consultation ends. Most often there will be contact details of officers or teams responsible for the consultation process. Raise your concerns with them and copy your complaint letter to them as well.

If the public body does not address your concerns, you should take legal advice on the best way to proceed.

What you can do if things go wrong

https://www.youtube.com/watch?v=FnYSEKHne18

If you found it hard to take part in engagement activities organised by a public body or were not able to respond to a consultation, especially when you are affected by the potential decision, you can make a complaint to prevent the same situation from happening again. Your complaint could potentially lead to changes that will help many other Disabled people.

In many cases the organisation will be in breach of the Equality Act and you will be able to start a court case against them.

https://www.youtube.com/watch?v=UxD4REq0yJw

It is always worth making a complaint regardless of whether you are thinking of taking legal action or not.

We have created a template letter, which explains to the organisation how their actions breached the Equality Act, which you can use. Your complaint could help the company realise that they are acting unlawfully.

By making a complaint you may get a better understanding of what the public body’s position is. They are likely to explain to you why their engagement mechanisms were not accessible. It is worth keeping in mind though, that normally once you have started legal action, you won’t be able to raise the same issue through a complaints process.

• Go to our interactive online letter templates here

Taking legal action

The kind of legal action you can take will depend on what you want as an outcome. In some cases, especially if you are affected by the decision, you may be able to argue that because of its inaccessibility the whole engagement process – such as a consultation – was flawed and therefore the decision made as a result is unlawful. This process is called judicial review. Judicial review proceedings are complex and can be very expensive, therefore we would recommend getting legal advice as soon as possible from a lawyer specialising in public law. The time limit to bring judicial review proceedings is only three months from the date when the decision was made.

If the problem is related to an ongoing engagement or the lack of adjustments at public meetings, or you are not able to bring judicial review, you can complain or take the public body to the county court for the breach of the Equality Act.

• Civil Legal Advice will put you in touch with lawyers who can help you
  www.gov.uk/civil-legal-advice
• Use the Disability Justice Project website to find legal advice
  www.disabilityjustice.org.uk/where-to-find-legal-advice

Collecting evidence

It is important to collect evidence if you decide to take legal action or make a complaint. Collect evidence on the spot, make a note of the date and time, and if possible take pictures or make a video on your phone.

If you are able to, make a record of what happened and how it affected you. It can be important to have noted this down, or recorded something on your phone the day it happened, so that you don’t forget. It also helps you to explain to the company, or a judge if your case goes to court, what it feels like to be discriminated against in this way.

If you are dealing with a member of staff, ask for their name. If there are people who witnessed the incident and are willing to support you in challenging this, make sure to get their contact details.

You have a right to get a copy of all information the organisation has on record connected to your name or your image. This includes records of phone calls you made, emails you sent, or emails written about you. You can use this right to help you collect evidence.

In your complaint letter you can also ask the organisation to send you their policies and procedures, or details of the training their staff received etc.

• Useful information about your rights under the data protection legislation and on how to make a Subject Access Request, including a template letter you can use:
  https://ico.org.uk/your-data-matters/your-right-of-access

How to make a complaint

1: Find out who to complain to

Each organisation should have its own complaints procedure, which will tell you where to send your complaint to and how long it should take to process it.

2: Write a complaint letter

You can use our template letters to write a complaint. Try to do it as soon as possible.

3: Ask for the evidence you need

You can do it in your complaint letter or separately.

4. Chase for a response

If you do not get a response within the time stated in the complaints procedure, or within the time you indicated in your complaint letter, you will need to chase the organisation for a response. You can do this by sending an email or phoning.

There may be different scenarios to follow:

• You will get a response and you are happy with it
• The company wants to negotiate a solution with you
• You get a response and you are not happy with it
• You do not get a response at all

See our chasing email template here.

5: Consider further action

https://www.youtube.com/watch?v=tXS31AdAhVo

If you are not happy with the response or you do not get a response, you could consider legal action. If your complaint was about an inaccessible engagement exercise which led to a decision, you should take legal advice as soon as possible before starting any legal action. This is because there are different types of legal action you could take. The lawyers will be able to advise you on the most appropriate one. If you are on means-tested benefits or low income you may be eligible for legal aid. Use the Find legal advice website to find a lawyer specialising in public law.

Alternatively, you can complain to the Local Government Ombudsman or Parliamentary and Health Service Ombudsman. For general information and the list of the ombudsman schemes, visit CAB’s website.