The lawyers trying to give deaf people a hearing | Law | guardian.co.uk.

I think it’s been very well written and does explain the situation Deaf people face when trying to access legal advice services.

Unfortunately, my client started to get cold feet. He was in two minds about whether he’d made the right decision to settle rather than proceeding to a Tribunal hearing. To be honest, I can understand why. Advising clients through settlement negotiations is difficult, as it relies on gut instinct i.e. mine.

What I do advise clients is this.

The starting point for negotiations is usually the Schedule of Loss, which is a document that sets out financial losses and compensation for discrimination. For unfair dismissal claims, it is usually made up of a ‘basic award’, calculated according to age and length of service at the date of dismissal, capped at a statutory maximum of currently £400 per week, and a ‘compensatory award’ made up of ‘loss of statutory rights’ and ‘loss of earnings’. ‘Loss of statutory rights’ is an amount to compensate for loss of certain statutory rights accrued with the employer, e.g. the right not to be unfairly dismissed; this is normally paid at £250. An award for ‘loss of earnings’ can be made to compensate actual net loss of earnings from the date of dismissal to the date of the Tribunal hearing.

Compensation can be awarded for injury to feelings for the discrimination suffered. How this is calculated is based on a case called Vento, which established guidelines in how to put a value on discrimination claims. There are three bands: up to £8,000, from £8,000 to £18,000, and from £18,000 to £28,000. The band each individual case is placed in depends very much on the experience of the solicitor involved in the case, and will depend on the severity of the act of discrimination and how often it occurred i.e. a one-off act is likely to attract less compensation than a series of acts over a long period of time.

Once the total value of the Schedule of Loss is calculated, this is usually the maximum figure that can be used as a starting point for settlement negotiations. Claimants are expected to mitigate their losses as far as possible i.e. get another job within a reasonable time frame as opposed to resting on their laurels in anticipation of compensation, and any welfare benefits (taxable ones such as Jobseekers Allowance or Employment & Support Allowance) claimed or earnings from a new job will have to be deducted from the total.

However, while a Schedule of Loss can be useful when it comes to settlement negotiations, it’s not the be all and end all. The respondent will have their own view on what compensation claimants are likely to get if they succeed with their claim at Tribunal, and this is more likely than not going to be a lower figure than claimed. In particular, they will have their own ideas as to what claimants could potentially get for injury to feelings if the claim is successful.

There is also the issue of merit. Does the claim have a reasonable prospect of success? If so, what is the Tribunal likely to award the claimant? If the claim has little merit, then the claimant can expect to receive no compensation or very little compensation. There is a particular risk if a lower figure is awarded during settlement negotiations than is awarded by the Tribunal; a Tribunal award could be reduced on this basis or a costs application granted because a claimant forced the respondent to go all the way to the Tribunal hearing when it would have clearly been more sensible to settle in the first place.

On top of that, we have what is known as “litigation risk”. This means basically what each party is prepared to compromise with in order to eliminate the risks associated with going ahead to Tribunal i.e. if the claimant wins, will the compensation awarded be more or less than the figures used in settlement negotiations/the Schedule of Loss? If the claimant loses, how much are they likely to have to pay in legal fees if the respondent makes a costs application? It is usually because of this risk that both parties have to compromise how much they want to settle for.

So, settlement negotiations are not easy to explain to clients. Ultimately, there has to be a degree of trust in the solicitor to be able to settle cases successfully. This proves the point that it is important for solicitors to build up confidence and trust in their clients, and any breakdown in the solicitor-client relationship can lead to difficulties when trying to settle cases.

Why?

Why was RAD DLC set up? It is a well known fact that many D/deaf people find it difficult to access mainstream legal advice services for various reasons, the main being that many private legal advice services don’t realise that the goods, facilities and services provisions of the Equality Act 2010 also apply to them, which means that they don’t readily provide BSL/English Interpreters or other communication support for D/deaf people, or at least try to pass on the costs to them.

In the public sector, in my experience, law centres and Citizens Advice bureaux are acutely aware of their obligations under the EqA, but due to funding, or lack thereof, are unable to provide the ‘reasonable’ adjustments required.

RAD Legal Services, of which I’ve been the Head for over one year, has gone some way to plug the gap in mainstream service provision with advisers who are fluent in BSL and able to communicate with its D/deaf clients using a wide range of technology as well as face to face. However, law centres are embedded in their communities and answer to committees of local people. They assist vulnerable people when they suffer injustice, educate people about their rights and tackle local problems. RAD DLC can do what RAD Legal Services doesn’t have the capacity to do: educate and campaign for the rights of D/deaf and D/deafblind people.

Who?

RAD DLC’s management committee has just three hearing members out of 12. The remainder are D/deaf or D/deafblind and range from Deaf professionals to service users. More details about who they all are will be revealed when the website is launched towards the end of this year.

Why is RAD involved?

There will be some critics who dislike the fact that the law centre is “RAD DLC” as opposed to just “DLC”, particularly those who don’t believe that Deaf organisations should get involved in things like this. I would like to make it clear that the management committee decided to use RAD in the title of the law centre for the following reasons:

It was an employee of RAD, i.e. me, who was instrumental in setting up RAD DLC in the first place;
It is a recognition of the support being provided to the law centre by RAD i.e. finance, HR and most importantly, staff such as me and other caseworkers; and
RAD is recognised as the only provider of legal advice services for the Deaf community in the UK; having such a close association will be beneficial for the law centre and avoids having to promote a completely new organisation from scratch.

I’d like to make it clear that the management committee has the power to decide to drop RAD from the title of the law centre at any time of its own choosing.

Next steps

At this moment in time, RAD DLC is currently undergoing a review of its strategy and direction. Once underway, there will be an official launch of the law centre and its services, so watch this space.

In theory, it will make it “easier” for those with protected characteristics to make a claim for discrimination in the Employment Tribunal or County Court. Whether it does, remains to be seen.

As a solicitor specialising in discrimination law, this will have huge ramifications on my work. The first thing I looked at was the transitional arrangements. It’s not as simple as saying “awh, just claim everything under the EA, doesn’t matter when the discrimination happened!”. The rules are thus:

If an act or acts occurred wholly before 1 October 2010, then they will be dealt with under the old legislation. If they happened on 1 October 2010 onwards, then they will be dealt with under the EA.

What about continuing acts of discrimination though? That is to say, acts of discrimination that started before 1 October 2010 but continued after this date? It seems that these will fall under the EA.

On a practical level, I now need to edit all our precedents, although I’ll probably do this on a one-by-one basis as I don’t have the time to edit them all in one go!

One other thing. Obviously I deal with disability discrimination on a day to day basis; the main changes to the DDA are as follows:

1. Disability-related discrimination has been scrapped. This is good news because the judgment made by the House of Lords in the London Borough of Lewisham v Malcolm [2008] case made it extremely difficult for claimants to succeed under this part of the DDA, and has now been reversed by the EA with the new concept of discrimination arising from a disability. If any of you want me to explain what was so damning about the Malcolm case, comment and I’ll explain.
2. The introduction of indirect discrimination to disability discrimination, bringing it in line with the concept already familiar in in sex and race discrimination.
3. Harmonising the thresholds for the duty to make reasonable adjustments for disabled people.
4. Making it more difficult for disabled people to be unfairly screened out when applying for jobs, by restricting the circumstances in which employers can ask job applicants questions about disability or health.

I look forward to working with the EA and it’ll certainly make a change from working with that old dinosaur, the DDA!

“It’s not “the DDA” any more; it’s “the EA”!

• Ensuring that service providers provide access to BSL users;
• Bringing BSL back into education as the predominant way to educate Deaf kids;
• Re-training audiologists to stop negative attitudes and forcing parents to conform to oralist methods;
• Improving Deaf and BSL awareness among the general populace; and
• Increasing the number of BSL users in the UK.

So, what do we need to do to get a BSL Act enacted?

1. Draft a BSL Bill, enter into a consultative process;
2. Decide whether to introduce it to Parliament via:
• A Private Members’ Bill by way of a Member of Parliament championing our cause; or
• A Public Bill (go here for more information on Public Bills).
3. The following stages then take place in both the House of Commons and the House of Lords:
• First reading (formal introduction of the Bill without debate);
• Second reading (general debate);
• Committee stage (detailed examination, debate and amendments. In the House of Commons this stage takes place in a Public Bill Committee;
• Report stage (opportunity for further amendments); and
• Third reading (final chance for debate and amendments are possible in the Lords).
4. When a Bill has passed through both Houses it is returned to the first House (where it started) for the second House’s amendments to be considered.
5. Both Houses must agree on the final text. There may be several rounds of exchanges between the two Houses until agreement is reached on every word of the Bill. Once this happens the Bill proceeds to the next stage: Royal Assent.
• Royal Assent (granted by the monarch); and
• Act of Parliament (the proposals of the Bill have now become law).
6. Commencement of the BSL Act, and equality for the Deaf community at last?

Any volunteers to kick off the process and draft a BSL Bill?

RNID’s Employment Training and Skills Service (ETSS), has worked with the CAB to deliver deaf awareness training and a Start to Sign course to advisers.

Do the RNId and CAB honestly think that training hearing advisers in basic BSL will allow them to communicate effectively with Deaf BSL users? The simple answer is: NO! Basic BSL will allow them to ask clients if they want a cuppa, that’s it. There is absolutely no way they can, or should be allowed to, advise Deaf clients on legal issues.

The RNId should know better, but then again, their ignorance doesn’t surprise me anymore.

I have already completed two modules:

• Client Care and Professional Standards; and
• Financial and Business Skills.

Financial and Business Skills required that I sat a one and a half hour exam consisting of multiple choice questions and two case studies, which I did on 19 June 2006. I received a letter today informing me that I passed it, so I’m pleased.

I’m starting the Advocacy & Communication Skills module next Tuesday, and I’ve got a one-day elective in Litigation Drafting Skills next Monday, in Cardiff. My final elective, How to Conduct Unfair Dismissal Proceedings, will take place on 13 November 2006, in Birmingham.

The course in London has been taking place at Regent’s College. It’s dead posh there, unlike Crosskeys College and the other colleges in South Wales I could have gone to to do my A Levels. Surrounded by Regent’s Park, it is a really pleasant place to walk to from Baker Street station, with lakes, fresh air and stillness, as opposed to the busy pace of city life.

I’m sure some of you, particularly those of you who know that I’ve been trying to secure a training contract for four years, would like to know how my training is going.

It’s now been almost two months since I started my training with South West London Law Centres, and all is going swimmingly. Most of the past two months have been focused on clearing my RAD caseload, as well as focusing on my casework supervision duties for the Advice team, and I am now starting to accept Deaf clients referred to me by RAD for the law centre. My first case will be a former RAD client of mine, who is facing possession proceedings for eviction. I’m really looking forward to getting stuck into that case.

I am still covering two advice surgeries for RAD, but with the handing over of Romford on Wednesdays to Laura, I now have up to four days a week at the law centre (three days when I go to Brixton on a Tuesday). It has been a massive improvement.

The Law Society requires that all trainees keep a training record of the work completed and the skills used during the casework, and I have been doing this, and also, I am currently sorting out funding for BSL/English Interpreters on my Professional Skills Course. At the moment, BPP Law School are insisting that *I* pay for the BSL/English Interpreters, and having thrown the DDA 1995 at them, I’m waiting for a response from the Course Director. Will let you know what happens.

All in all, I’m a happy bunny!

As you know, I started my 18-month training contract on 28 November 2005 with South West London Law Centres, based at Croydon & Sutton Law Centre. I have to say that I’ve been really lucky. I’ve secured a training contract employed by RAD, which, despite its faults, is an organisation that I am proud to work for. I am on the same salary as I was as an advice worker, which is an added bonus, and Linda has agreed not to tie me to RAD after the completion of my training contract, knowing full well that once it’s done, I’ll want to move back to Wales to be with Rachel.

The staff I’m working with are all really nice. They have all comfortably adapted to life with a Deaf trainee and his BSL/English Interpreter. Nick, my supervisor, is great and knowledgeable, and I feel I can learn a lot from him, as well as Maria (immigration), Cherry (benefits) and Lisa (employment). I have my own desk with my own stationery, and an IT consultant was there to set up my laptop to access the LAN on my first day. They couldn’t have been more welcoming if they tried.

My main focus will be on RAD clients referred to me by the advice workers, but I will be working on some cases with the solicitors as and when required. So the next 18 months should prove to be an interesting experience. Things have been hampered a little because of the impending Christmas period and also because I’m still covering advice surgeries for RAD, but hopefully once a new advice worker is recruited, things should ease up a bit.

All in all, I’m one happy bunny.

What was that all about? Well, you all know that my training contract with SWLLC starts on 28 November 2005. I was offered an interview for a law firm in Cardiff, Thomas Graham, and I was one of four candidates they wished to interview. You can imagine my excitement, and all the attempts to keep my hopes and expectations down, in the event of bitter disappointment.

Over the past month or so, we have tried to arrange an interview date, but this has been beset by delays. This morning, however, I received an email to inform me that they are unable to offer me an interview and the position has been put on hold. So that’s that. My dream of securing a training contract in Wales dashed, an opportunity to move back to Wales permanently gone.

While this is a bitter pill to swallow, at least I do have a training contract. I am looking forward to it. I’m going to be working with a really good training provider, the law centre, and will be working with a bunch of good people. The best thing of all, however, is the fact that I will continue to be employed by RAD.

May 2007, here we come!