I have become aware of potential discrimination under the Equality Act 2010 following a subject access review about failure to make reasonable adjustments. Some of the activity is beyond 6 months but I have only become aware of the activity recently as a result of the subject access review (under 6 months). If I were to make a claim under the Equality Act would these activities be admissible since I only was made aware of them recently and, more importantly, now have sufficient evidence? I do have a recent example within six months that I can use. Is my understanding correct that I can bring in older evidence to show a pattern? Any potential claim would be made in the context for a child with an EHCP to the SEND Tribunal. Thank you.
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- 10 Oct 2022
The time limits are as follows in relation to disability discrimination claims (apologies for the poor formatting). The Equality Act 2010 can be found here:
a) Legal action (either in the court or tribunal) must be started within six months (minus one day) of the unlawful act. This is the limitation period
b) If the proceedings are not brought within that period the court still has discretion to hear the proceedings, if it thinks it is just and equitable to do so. A tribunal may also consider a claim which is out of time.
Key factors here are:
- the length of and reasons for the delay
- the extent to which the cogency of the evidence is likely to be affected
- the extent to which the defendant had cooperated with any requests for information
- the promptness with which the claimant acted once they knew of the facts giving rise to the claim, and
- the steps taken by that person to obtain appropriate professional advice once they knew of the possibility of taking action.
c) Failure to make Adjustments (section 20 The Equality Act 2010). The statute says that a failure to do a thing i.e. make adjustments occurs when the school decided not to do it. In the absence of evidence to the contrary, a school is treated as deciding not to do a thing:
- when it performs an act that is inconsistent with doing the thing, or
- if it does not carry out an inconsistent act, on the expiry of the period in which it might reasonably have been expected to do the thing.
Hence the limitation period starts when the school decides not to make the adjustments.
s118(6) and (7)
Schedule 17 (4)(5) and Schedule 17 (4)(6)
d) Further, the Equality Act 2010 (subject to the above) also recognises that where conduct extends over a period it should be treated as being done at the end of that period for the purposes of calculating when the act of discrimination occurred.
If a parent has recently found about an act of disability discrimination outside the limitation period,– the claim can be made with these facts stated, but it is advised this be done promptly.