Need to file disability discrimination court claim in court by specific date but too unwell to do it

nickneish

Hi,

I hope this is the right place to ask.

I only have a few weeks to file a disability discrimination claim. Unfortunately the events in question have left me with PTSD symptoms which are preventing me from engaging with the evidence.

I believe I have two options for filing:

1. File protectively. I've read this can be very tricky, but the instructions I can find make it sound very simple. This is making me uneasy. Additionally the instructions I have found are vague.
2. File for 'exceptional circumstances'. I can't find instructions for doing this

Can anyone help please? Which option should I take? Can you point me to some very clear and easy to follow instructions?

I need to do this myself as I am in the unfortunate position of having too much in saving to qualify for legal aid but not enough to pay a lawyer to do this.

AKR

Is your disability discrimination claim against a service provider - which is the county court's jurisdiction, or your employer- which is the employment tribunal's jurisdictuion ?

nickneish

Thanks for replying. It's against a service provider so it will be in the County Court.

AKR

You must complete and file the claim form (form N1) with the court, in triplicate (assuming there is one defendant) within the limitation period (i.e. 6 months less one day from the date of the incident). I assume it is that date which is looming?

Within that form you must insert brief details of the claim - you don't have to at that stage go into chapter and verse - you can just set out a brief overview of the claim and the sections of the Equality Act 2010 you are bringing the claim under.

Tick the box "particulars of claim to follow" (they must be served on the defendant and filed at court within 14 days of service of the claim form).

State within the covering letter to the court that you wish to effect service of the claim form on the defendant and therefore ask it to send 2 sealed copies of the claim form, one for your records and the other one so you can effect service.

You will then receive back from the court the sealed claim form.

You must then serve the claim form within 4 months of the date it was issued by the court (the date of issue will be inserted by the court office). When you serve the claim form on the defendant you must file a certificate of service with the court.

So, you actually have circa 4.5 months from the issue date of the claim form to prepare and serve the claim form/particulars of claim on the defendant.

If you cannot meet those timescales then you would have to apply to the court for an extension of time to serve the claim form and/or the particulars of claim with valid reasons, supported by any medical evidence if those reasons are related to your symptoms.

Do not miss the strict limitation period for issuing the claim form (6 months less one day from the date of the incident). You do not have to "engage with the evidence" to complete form N1 and send it to the court within the limitation period, so if you do miss it then you will not be able to bring a claim.

Having said all of that, if you have some savings it is well worth paying for initial legal advice from a specialist solicitor, for two very good reasons:-

1. A specialist solicitor will be able to tell you whether your claim has any merit and the value of it;
2. Subject to 1. the solicitor may offer you a "no win no fee" arrangement;
3. Even if the solicitor doesn't offer you a no win no fee, he/she may offer you a capped price to draft the particulars of claim.

These sorts of claims are extremely difficult even if you think you have a great case. I was a discrimination solicitor, and I also litigated a few disability discrimination claims in person after leaving the profession against certain service providers. My claims settled because I has the skill set to draft/prepare and run those cases myself but they still took a huge toll on me and worsened my symptoms.

A solicitor is therefore the best option to give you objective advice, you cannot possibly be objective or emotionally detached as a litigant in person.

nickneish

Hi,

Thank you for such a detailed reply. I have a few follow-up questions I hope you won't mind answering:

1.Am I correct that I would have that 4.5 month period (or more if extended) to complete the particulars of claim?

2.My understanding of how these things work is that first one is expected to send a letter before action to the defendant and then file in court. Would I need to do this during that 4.5 month period too?

3.I experienced discrimination from another service provider related to these incidents, which I am now past the 6 month time limit to issue a claim. Are there any exceptions to that time limit if i can prove that I've been too unwell to do it until now? (I am already disabled on account of severe mental illness (in receipt of PIP) and these events have utterly traumatised me, the PTSD symptoms have been unmanageable). I will be able to provide letters from my GP and therapist along with evidence of medications I have tried unsuccessfully during this time. I have a PTSD assessment lined up too.

4. Wrt the suggestion I consult a lawyer, my understanding was that I can't reclaim legal costs in small claims court. Is that accurate?

I had some brief advice from the Equality Advice and Support Service who advised that the incidents in question were likely unlawful discrimination.

Thanks again.

AKR

https://forum.scope.org.uk/discussion/comment/908058#Comment_908058

1. Provided the claim form is issued within the 6 month limitation period then you can serve it within 4 months of the date of issue and then serve the particulars of claim within 14 days of service of the claim form.
2. A letter before claim should be sent before proceedings are issued, really this should have been done asap after the incident. However, yes you should send it asap because you should give them 3 months to respond in accordance with the pre-action protocol.
3. You should consult a solicitor for advice on whether your situation could form the basis of a successful application to extend limitation on just and equitable grounds.
4. Your claim wouldn't be under the small claims procedure due to likely value and/or complexity. However, if you think your claim isn't of great value/or a solicitor doesn't think it is of any great value then you would have to consider whether the stress of pursuing it is worth it.
5. With respect, advice from the EASS isn't on a par with advice from a qualified solicitor who specialises in discrimination actions.

Discrimination claims are very complex, very time consuming and fact sensitive. And, regardless of what you think about your case, trust me the defendant will defend it vigorously and will utilise their own legal team to do so. It will be extraordinarily difficult for you to do this on your own and it will cause you high levels of stress on a daily basis.

I would still strongly recommend you arrange to see a solicitor for a proper consultation to discuss all of your issues and any other questions you have.

MW123

@nickneish

I appreciate and respect your commitment to pursuing justice. However, I must emphasise the complexities and risks involved in filing a disability discrimination claim in the County Court.
UK disability discrimination law is intricate, with specific definitions, duties, and defences that can be challenging to navigate without legal expertise.

Proving such a claim is particularly difficult for those without legal training. Understanding legal concepts requires specialised knowledge, and gathering the necessary evidence, identifying appropriate comparators, and managing complex legal procedures can be overwhelming.

Additionally, there's a significant risk of being liable for the defendant's costs if your claim is unsuccessful, which could place a substantial financial burden on you given your current situation. While your savings are limited, investing in even minimal legal advice now could help you avoid much higher costs in the future.

Seeking professional guidance will give you a clearer insight into the strength of your case and whether it is worth pursuing. Most importantly, it can help you avoid the significant potential costs of covering the other party's legal fees if your claim is unsuccessful.

nickneish

Thanks MW123 but like I said I can't afford to seek legal advice. I have a very small amount of dwindling savings. I can't do nothing as the cascading effect of the discrimination was that I was discharged from my local NHS Trust on false grounds and can no longer access huge amounts of NHS healthcare. I suffer from severe mental illness and can no longer access a psychiatrist, therapy or crisis team on the NHS. I can't even access NHS physiotherapy since the same trust holds the physiotherapy contract in my area. My dwindling savings are earmarked for healthcare I desperately and urgently need on an ongoing basis.

My friends, carer and private psychotherapist have all tried to report the NHS Trust's treatment of me to the police (they think there has been fraud and I agree) but the police aren't interested. So my only hope is a county court action. And the only way I can do that is as an LIP.

MW123

@nickneish

Given your situation, attempting to navigate the county court system as a litigant in person against the NHS carries significant risks. It is not only likely to be financially demanding but also emotionally taxing and time consuming. The complexity of medical negligence law, combined with the NHS's substantial resources and legal expertise, makes this a particularly difficult path for an individual to pursue alone.

Instead, consider these more accessible free services. File a formal complaint with the NHS Trust using their established procedure. Clearly describe the discrimination you faced and its impact on your healthcare access. Specifically request remedies like reinstating your NHS services. If the complaint process does not resolve your issue, escalate to the Parliamentary and Health Service Ombudsman. This free service investigates NHS complaints in England.

You can also contact Healthwatch England for independent advice. They are impartial and have the authority to ensure NHS address your feedback and improve care standards. These services are all free of charge and may be more effective in resolving your situation without court action.

I strongly advise you not to rush into filing at the county court against the NHS. Before even considering this expensive and risky step, you should fully exhaust all free complaint and resolution services available to you. I am just off to work but I am sure @AKR or other members will be able to give you advice if you have any questions on the above. Take care xx

nickneish

It was the formal complaint process with the trust that ended with my care being withdrawn on false grounds by the CEO.

My first discrimination complaint regarded them repeatedly calling me when I hate phone calls and had made a reasonable adjustment for contact in writing only. A staff member ignored it and called me, so I made a further complaint. In retaliation he falsely accused me of multiple crimes in a referral form (he wanted to refer me to a place specialising in patients who are difficult to deal with and needed to create a criminal history in order for me to meet their referral criteria). Despite being corrected by police he refused to correct the allegations, instead creating a second referral form without the false allegations (this was disclosed to me along with the first in response to my subject access request). I don't think they realise I have both forms. I'm sure this second referral form was passed to regulators (the ICO and HCPC) as both dismissed my complaints. (rejecting my reasonable adjustments that they tell me if my evidence doesn't support my claims as being autistic it is very difficult for me to understand how to present evidence). It was really traumatising being turned away by the people who were supposed to protect me. The PTSD symptoms are killing me, I shout, scream and punch myself everytime I engage with the evidence and am then up all night with nightmares. It's why I need to file protectively to buy myself time.

I want to take discrimination actions against the ICO and HCPC too but can't afford a lawyer for everything, especially since I need to spend my savings on the healthcare that's been withdrawn. So I need to learn how to do it as an LIP.

For this reason I don't feel safe approaching Healthwatch - I expect they will take the Trust's word based on the fraudulent referral form and also discriminate against me if I request a reasonable adjustment.

AKR

https://forum.scope.org.uk/discussion/comment/908391#Comment_908391

I obviously can't comment on the substance of your allegations, no one other than a specialist solicitor can. All I will say is you are going to find it almost impossible to take this on as a litigant in person. You are going to be constantly up against strict timescales set by the court during case management and you are going to be under immense pressure which is going to be very detrimental to your health. You can't "learn" discrimination law as you go along. It takes years even for a solicitor to become a specialist in this area. It is hugely complex. You will be stepping into a world you are completely unfamiliar with and which is extremely adversarial. You will be up against a legal team who do this sort of thing all the time and they will be very aggressive in defending the claim(s). I have represented employees of the NHS in the past and have first hand experience of the approach of their solicitors/barristers during the claim and at the employment tribunal where I conducted the advocacy against barristers of very senior standing. I was successful in most cases but I had about 15 years of experience in discrimination claims - even then they are mentally draining and very difficult to conduct and prepare at all stages of the claim. You really should get some initial advice from a specialist discrimination solicitor before launching into what will be an all out war - trust me.

nickneish

Ok, thanks for the advice.

What if I do the following:

1. Instruct a lawyer for the NHS stuff
2. Forget about ha discrimination claim against the ICO and HCPC and instead take action against them for a combination of harassment/breach of duty of care?

Does 2 sound doable as an LIP?

AKR

https://forum.scope.org.uk/discussion/comment/908521#Comment_908521

In short, no.

The same recommendation applies, and for the same reasons- you should speak to a solicitor about all of your potential claims, which are going to be very complex.