In Finnigan v Chief Constable of Northumbria Police [2013] EWCA Civ 1191 the Court of Appeal found that when police officers wants to carry out a search a deaf person’s home, they have to make reasonable adjustments by considering what is reasonable for deaf persons as a class rather than the deaf person whose home is being searched.
Background
Mr Finnigan is a profoundly deaf man who Northumbria Police suspected of selling drugs. In March 2010, officers executed a search warrant at Mr Finnigan’s home in Sunderland. They were not accompanied by a British Sign Language (“BSL”) interpreter, in circumstances where it was known to the police that Mr Finnigan was profoundly deaf. Two of the six or seven officers who searched his home had had previous dealings with him and were satisfied on the basis of those dealings that they could achieve a basic level of communication with him without the benefit of a BSL interpreter. They had previously been able to communicate by lip reading and writing questions and answers. Mr Finnigan was able to explain – through his wife – that £400 in cash that the officers had found was for his rent.
In November 2010, Mr Finnigan made a sale of cannabis from his home to undercover police officers. (The police later used this to argue that effective communication with Mr Finnigan was possible without an interpreter).
The police returned to search Mr Finnigan’s home on 8 February 2011. Again, they were not accompanied by an interpreter. He was found to have £1,700 in his possession. He refused to cooperate with the officers. Mr Finnigan turned his head away so that he could not lip read what they said to him. He signalled to his wife to say that the money was for his rent. The final search took place on 9 March 2011, once again without an interpreter.
Mr Finnigan alleged that, in conducting the (otherwise lawful) searches of his home, the Chief Constable of the Northumbria Police breached its duty to make reasonable adjustments (under section 21 of the Disability Discrimination Act 1995 (“DDA”) and section 20 of the Equality Act 2010 (“EA”)). His case was that he was the victim of unlawful discrimination because the searches were carried out without a BSL interpreter in circumstances where it was known to the police that he was profoundly deaf.
His claim was dismissed by His Honour Judge Walton.
The Court of Appeal’s decision
The case was appealed to the Court of Appeal. The Equality Act having come into force on 1 October 2010, the DDA applied to the first search and the EA applied to the second and third searches. The differences between the provisions of the two statutes were not material to the issues that arose in the appeal. In general, the Acts provide that a public authority has a duty to provide reasonable adjustments for disabled persons where a provision, criterion or practice (“PCP”) puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled.
Deaf persons as a class
The Judge at first instance held that there was no breach of the duty to make reasonable adjustments in this case, since it was possible to achieve effective communication during the searches that took place on 31 March 2010 and 9 March 2011 (Mr Finnigan deliberately making communication impossible on 8 February 2011).
The Court of Appeal held that the Judge had erred in addressing the question of whether the Chief Constable had failed to make reasonable adjustments by reference to the needs of Mr Finnigan rather than by reference to the needs of deaf persons as a class. As Sedley LJ said in Roads v Central Trains Limited [2004] EWCA Civ 1541 “[public authorities] cannot be expected to anticipate the needs of every individual who may use their service, but what they are required to think about and provide for are features which may impede persons with particular kinds of disability”. The duty to make reasonable adjustments is anticipatory.
Because the duty on the police was to deaf persons generally, the police could not discharged the duty by treating everyone as individuals and adopting communication styles to suit the circumstances of the particular case on an ad hoc basis.
As Lord Dyson MR said at [36]:
“Like any other public authority, the Chief Constable is under a duty to take such steps as are reasonable to change her PPPs so as to eliminate or reduce their detrimental effect on deaf persons. One way of doing this in relation to her PPP of officers’ communicating in spoken English would be for a BSL interpreter to be in attendance or on standby every time there is a search of premises occupied by a person known or believed to be deaf. But there may be other reasonable steps that could be taken to achieve that result: see Roads at para 13. Effective communication may be possible with some classes of deaf persons by other means, for example, with the assistance of officers skilled in lip-reading and sign language. That this is a realistic possibility is strongly suggested by the judge’s findings on the facts of the present case. It is important, however, to keep in mind the distinction between (anticipatory) changes to a PPP which are applicable to a category or sub-category of disabled persons and changes which are applied to individual disabled persons on an ad hoc basis. The duty to adjust a PPP is to be judged by reference to the former, and not the latter.”
R (Lunt) v Liverpool City Council
Despite the fact that the Court of Appeal held that the Judge had erred in approaching the question of reasonable adjustments from the perspective of the Claimant rather than deaf persons as a class, the Court of Appeal dismissed the appeal. The Court of Appeal held that the six step approach adopted by Blake J in R (Lunt) v Liverpool City Council [2009] EWHC 2356 in relation to s.21 of the DDA should be adopted to section 20 of the EA.
In Finnigan, the appeal failed because the fifth step identified in Lunt was determined in the Northumbria Police’s favour. The fourth step in Lunt is to ask whether the public authority has failed to comply with its duty to change the PCP so that it no longer makes it impossible or unreasonably difficult for a disabled person to receive the benefit. The fifth Lunt step is to ask: “if so, is the effect of that failure such as to make it unreasonably difficult for [the disabled person] to access such benefit?”
In the present case, the Judge found as a fact that the absence of a BSL interpreter had not had any effect on the ability of Mr Finnigan and the officers to communicate with each other effectively on the two occasions when he was not behaving obstructively. The fact that Mr Finnigan had been able to sell cannabis to undercover officers without the assistance of an interpreter did little to enhance his case that the absence of a BSL interpreter caused him to suffer detriment in his ability to communicate with the officers during the searches. In conclusion, the Court of Appeal found that the Judge was entitled to conclude that, as a matter of fact, the Chief Constable’s failure to adjust her PCP caused no detriment to Mr Finnigan. This was fatal to the appeal, which was dismissed.
Practical implications for Police Forces
A Police Force, or more accurately the chief officer, is under a duty to take such steps as are reasonable to eliminate or reduce the detrimental effect of their PCPs on deaf persons. A Police Force cannot discharge the duty by treating everyone as individuals and adopting communication styles to suit the circumstances of the particular case when it arises on an ad hoc basis.
Practically, when searching, searching the home of, arresting or interviewing a person known to be deaf a Police Force must make reasonable adjustments provide treatment as close as it is reasonably possible to get to the standard normally offered to the (non-deaf) public at large. But these reasonable adjustments must be the same for all deaf persons, and not tailored to know needs of any specific deaf person.
- One way of doing this would be for a BSL interpreter to be in attendance every time there is a search of an individual or premises occupied by a person known or believed to be deaf.
- Another way of doing so would be to have BSL interpreter on standby when a search is conducted.
- Effective communication may be possible with some classes of deaf persons by other means, for example, with the assistance of officers skilled in lip-reading and sign language.
- “Even if interpreters cannot enter the premises until they have been checked and secured, they can still take part in the process of communication once these steps have been taken.” (see the judgment at [40]).
Comment
In developing their policies, procedures and training, police forces will have to make provision for put for particular classes of disabled persons eg. those with serious learning difficulties, those in wheelchairs, deaf persons and blind persons. The provisions of these policies should reflect a consistent approach to adjustments for everyone suffering the class of disability in question.
This case also emphasises the difference between the duty to make reasonable adjustments placed on a public authority when exercising its core functions and when acting as an employer. In the former, the duty to make reasonable adjustments focuses on members of a whole class of disabled persons. In the latter (the employment context) the duty focuses on the particular disability of the employee in question. In both cases, the policy of the legislation is to place disabled persons in a position as close as reasonably possible to that of the comparable non-disabled population, namely public at large for and fellow employees.