This section is for advice managers who wish to develop and improve the discrimination advice that their organisation provides.
It offers practical tips and tools to help you use equality and human rights to challenge discrimination in welfare benefits advice. It’s divided into eight sections, which follow the progress of a case.
This resource is intended to be dipped into, depending on the information you need. However, if you’re starting a new service from scratch you may want to read it in full. This is not a guide to undertaking casework. It is meant for a manager who wants to gain an understanding of discrimination advice, and to improve the quality of the service they deliver.
You may also find it useful to look at these other resources in our handbook:
- An A to Z about equality. A plain English A to Z glossary of all things equality related, including legal terms and concepts.
- Case studies. There are six practical case studies about using equality rights to solve problems in welfare benefits advice, including example letters and responses, and three short policy case studies focusing on the equality impacts of welfare benefits rules.
- A directory of equality resources. This lists organisations and resources that will help welfare benefits advisers using equality rights to solve problems.
- Posters on using equality rights for welfare benefits advice.
A guide to managing discrimination advice
This guide is for advice managers who wish to develop and improve the discrimination advice that their organisation provides.
How to use this guide
- The guide is divided into eight sections, which follow the progress of a case.
- This resource is intended to be dipped into, depending on the information you need. However, if you’re starting a new service from scratch you may want to read it in full.
- This is not a guide to undertaking casework. It is meant for a manager who wants to gain an understanding of discrimination advice, and to improve the quality of the service they deliver.
What is in this guide?
- Client care information – the basics
- Accessible services
- Funding, costs risks and disbursements
- What might a discrimination caseload look like?
- Case management process
- Improving quality
- Negotiating settlements: merits and evidence
- Strategic casework
- Discrimination casework
Other resources for advice management
General information about advice delivery: A very practical handbook is Giving Legal Advice: An Advisers Handbook, by Elaine Heslop, published by Legal Action Group.
Client care information – the basics
The client perspective
The basic client care information an adviser should give a client at the beginning of the case is:
- who is dealing with the case
- any costs risks for your client
- when and how often the client will be given information about the value and merits of the case, and how that will be reviewed
- what the client can expect the agency to do, and any limitations on resources
- what the client is expected to do
- any important time limits
- what is the complaints procedure
- accessibility information
- information about GDPR and any encryption procedures.
Throughout the case the client should also be told about:
- the advisers view of the value and merits of the claim (and any second opinion, for example from a specialist solicitor or barrister)
- court or tribunal orders
- offers of settlement
- any costs risks for your client
- important time limits.
The case record
A copy of any letter/document setting out the information the client needs to know. This may be in the main correspondence tag or kept separately.
A note of any time limits and actions to be taken. These should be clearly and prominently marked on the file so they can be easily found by another adviser.
A note that a conflict check has been carried out.
The managers perspective
The adviser should give their client the appropriate and necessary client care information, including information about the case, merits, risks and a timeline.
An appropriate conflict of interest check should be carried out. An adviser should be familiar with the guidance and requirements of their own advice agency on conflicts of interest.
If the caseworker is a solicitor they should comply with standards and requirements set out in the Solicitors Regulation Authority Handbook.
Agencies who do work funded by the Legal Aid Agency should comply with the appropriate quality assurance standards.
The supervisor needs to know where to look on a case file to be able to quickly find out this information.
It is useful to check that the client is kept up to date at regular intervals. Sometimes there can be a lot of activity on a file with the other side, the court, experts etc and the client can be left out of the picture. Or perhaps, the adviser is in close contact with the client but there could be more proactive activity on the case itself. Each case requires a good balance overall.
A good adviser will clearly explain to a client the possible remedies, benefits and risks. They may explain this by describing the possible best and worst-case scenarios. They will help the client to have realistic expectations of what can be achieved.
Procedures for conflict checks in every case should be in place. There should also be clear procedures for how and when to provide information, and appropriate client care, to a client if a conflict of interest does arise.
It is important to make sure that client care information is always given to all clients. This can be made easier by using:
- standardised file opening systems
- template letters or leaflets
- a standard file layout
- a simple checklist attached prominently to the file to show when this information was given, and also to display time limits.
- a ‘bring forward’/’to do’ system to ensure that the client is kept fully informed (this should be checked by the caseworker and supervisor).
Accessibility and accessible services
The client perspective
It’s vital for clients to feel welcome and that their needs will be recognised – particularly when they’ve been experiencing discrimination. It is particularly important that an advice agency understands the importance of making sure that all kinds of clients feel welcome, and that clients feel that their needs will be recognised.
Agencies should give clients information about accessible services as soon as possible. This might include:
- how to ask for adjustments in the way a service is provided
- reassurance that they can ask for information to be given to them in other accessible formats
- information about home visits, interpreters, signers.
- details for the client to agree on preferred communication channel or medium, frequency and manner of communication etc.
- details for the client to agree on use of third parties or support workers (and limit of consent and authority).
Some clients may need additional support beyond legal advice. A discrimination claim can be long and stressful, and a client may need support from family and friends or from professional advisers, for example if your client has experienced harassment or bullying. An adviser should make sure they know about local and national organisations who can provide such support, and how to signpost a client to the appropriate organisation.
Each client may feel and describe their protected characteristic in their own way – an adviser should ask each client what words and terms they prefer.
The case record
Information about accessible services should be included in client care information. It may also be available in other ways: on a website, a poster or leaflet.
The managers perspective
An advice agency is a service provider. A good starting point is the Equality and Human Rights (EHRC) Commission Code of Practice on Services, Public Functions and Associations.
For many advice agencies it is a fundamental principle that people from all parts of the community can access the service, receive a quality service, and not be discriminated against. They also strive to make their advice services accessible to, and meet the needs of, the diverse population within their local community.
The EHRC has useful guidance on equality law for voluntary and community sector organisations.
An advice agency should be able to demonstrate that they have assessed the community’s information and advice needs, particularly people facing social exclusion or discrimination, and that services are delivered in ways that enable those communities to access them. This can involve balancing good practice, legal requirements and budget restraints. Each agency will need to ensure it complies with its own network standards and policies.
The Law Society has a general practice note on equality and diversity requirements.
The Judicial College Equal Treatment Bench Book is designed to help judges in their conduct of cases. It is also useful reading for advisers.
Funding, costs and disbursements
The client perspective
A client should be advised about any available funding routes (including Legal Aid, Legal Aid exceptional case funding, no win no fee, legal expenses insurance, EHRC Legal Support Project), and the processes and information required to apply for funding.
Clients should be advised about any funding limitations, and any protection against costs risks.
The adviser should make sure that the case record clearly states who is funding the case, what is covered and what is not.
Where appropriate, a client should also be advised about any pro bono support available, and the limitations of this support.
Clients should always be told in writing about the possibility and risks of an order for costs being made against them when they are considering starting any litigation. [ADD Link to County Court claims in Glossary]
It is important when starting litigation that a client understands:
- they have to act responsibly
- they should comply with court orders
- what a court can and cannot order as a remedy
- they need to be available to give instructions promptly.
A good adviser will ensure that a client understands what they need to do before the start of any litigation. This might be in a (formal) agreement or clearly set out in a letter of advice. When costs are discussed it is a good idea to ask a client to acknowledge they have read and understood this advice.
Costs threats: Where there are costs risks, a defendant’s lawyers can threaten that they will seek costs orders, and emphasise how much those can be, as a way of pressuring a claimant into dropping a case.
Anecdotally it seems that this happens more often, and the threat will be fiercer when the defendant thinks the claimant is being advised by a volunteer or not-for-profit advice agency. Dealing with these threatening letters takes a cool head, judgement and experience. The client should be told about these cost threats, but the adviser also needs to carefully explain the merits of the case, and their assessment of the costs risks. If the adviser is unsure of the risk, they should seek a second opinion from a suitably experienced adviser, and the case should be referred on.
No win no fee agreements: An advice agency should check with their own networks about the policy implications of referring or signposting a client to a no win no fee arrangement. If a client decides to proceed, the supervisor would need to be satisfied they have the experience, knowledge and procedures to make appropriate referrals. A client should be given appropriate information about what to expect, and the risks involved.
Disbursements: A disbursement is a fee in addition to any costs of legal advice, for example a medical report fee, or a court fee. A client should be advised of the need for any documents, records or reports and their costs, as well as of any court fees.
The client should be told in writing about the reason for the expense, of alternative estimates, when payment would be due, and the implications for the success of the claim in not obtaining the report etc. The client should also be told about the possibilities of other sources of funding.
If a client decides they wish to commission and pay for a report etc, clear written instructions should be given about the cost agreed.
Court fees A client should be told in advance about:
- any court fees (issue, hearing fees etc)
- how to apply for remission, including how long it will take and the evidence required to do so)
- the prospect of being able to recover the court fees if they succeed in their claim.
The case record
Information about costs. A clear letter of advice (or a note that a copy attendance record has been given to your client) setting out:
- an explanation of why it is important to comply with court orders
- clear information with dates of any court orders and what the client needs to do in order to comply with them (and who is to do what)
- the costs risks that apply in this case
- any funding limitations and requirements
- information and explanation of any costs threat made by the defendant
- a cost-benefit analysis – this should also take into account the quality of the evidence, how much of the case is about the law or about a factual dispute, the stress of the case to the client, the value of the claim. An important consideration in litigation is how much the client is prepared to risk for the return they are likely to get.
Information about medical records and reports
Advisers should ensure that when asking for medical records and reports they have clear agreement recorded on the case file, showing:
- client consent
- which medical records they need to obtain, and why
- who medical records can be shown to
- who is paying
- when the fee is due
- what is the purpose of any medical report and when its due
- any cancellation fees
- in what circumstances can a medical report fee can be increased if there are unanticipated costs
- that the expert providing the report knows if the payment is to come from another funder and when they can expect payment, and they have agreed to this
- clear agreement in writing from the client about disbursements they will need to pay
- agreement from the expert about the terms of their instructions and costs
- Full and proper records of any money received and paid out – including signed receipts, copies of cheques, copies of letters sending payments, receipted invoices, plus copies of any necessary authorities to comply with accounting procedures.
General information. There should always be a clear record of the client’s up-to-date instructions.
The managers perspective
For welfare benefits advisers who undertake discrimination casework, there are a number of possible court and tribunal procedures.
This handbook is not intended as a comprehensive guide to conducting Social Security Tribunal, County Court or judicial review proceedings.
An adviser who conducts litigation should be:
- able to advise on the appropriate rules of procedure
- able to estimate the likely costs of litigation (on both sides)
- able to assess the merits and prospects of success
- able to carry out a cost-benefit analysis
- aware of any available funding routes (including Legal Aid, Legal Aid exceptional case funding, no win no fee, legal expenses insurance, EHRC Legal Support Project), and how to apply to them.
- aware of their respective merits on costs risks, and any protected against any costs orders (for example, through a Legal Aid certificate, or costs capping).
There are no court fees in the Social Security Tribunal for starting a case or for a hearing. No discrimination claims are brought in the First Tier Tribunal in any event (other than those alleging discrimination pursuant to Article 14 of the Human Rights Act 1998 in conjunction with one of the other Articles).
In the County Court and High Court, a client will need to pay a court fee for starting a case, and for taking some other steps in the court proceedings. It is possible to get help with court fees, this is called remission. Your client might get money off their court fees if they have little or no savings, are on certain benefits or have a low income.
Copies of medical records may be needed if an independent medical report is to be obtained or if the Court will need to see them for determining any issue. For example, a court may wish to see medical records when they need to decide if a claimant meets the definition of disability in section 6 Equality Act 2010. The court will normally make an order about the medical records to be obtained, and the time limit for doing so.
The NHS provides information about the fees for accessing medical records from the NHS. Advisers should note that separate requests may be needed for GP records, NHS hospitals, private hospitals, and other professional medical services. The British Medical Association (BMA) has information about access and copy charges.
For welfare benefits advisers who take on discrimination casework, there are several possible court and tribunal procedures.
This is not a comprehensive guide to conducting Social Security Tribunal, County Court or judicial review proceedings. An advice manager should be satisfied that the adviser has the necessary competence, skills, training and rights of audience for any court proceedings they embark upon. These links are to help signpost managers to more detailed information.
- Social Security Tribunals:
- County Court: discrimination claims
- Civil Procedure rules for the small claims track are in Part 27.Reference should also be made to the relevant Practice Directions on costs, including PD 45. The Civil Justice Council produced a Guide to bringing and defending a small claim in 2013.
- Advisers bringing claims in the County Court should be fully familiar with the Civil Procedure rules (CPR), and the costs rules that apply in the different tracks. The general rules about costs are in Part 44.
- The Civil Procedure rules
- Pre action protocols
- Equal Treatment Bench Book
- Practice Direction – proceedings under enactments relating to equality
- General guidance about Administrative Court and judicial review claims from Her Majesty’s Courts and Tribunals Service (HMCTS). . Part 54 of the CPR deals with judicial review.
Costs and disbursements
A manager should check that they know they answers to these questions where costs and disbursements are to be paid:
- What arrangements have been made for payments by clients? Will they be made direct to experts or third parties?
- Where will these monies be held?
- If the adviser is a solicitor then the manager should be aware of necessary procedures to comply with the Solicitors Accounts Rules, and who has responsibility in the organisation for ensuring compliance.
- Does the adviser need permission from a manager before incurring disbursements over a certain limit? What is that limit? Under that limit what checks are in place to ensure compliance with case arrangement procedures? Is that a realistic limit and can the adviser get authority for disbursements over that limit promptly?
What might a discrimination caseload look like?
The client perspective
It is not usually necessary, or appropriate, to discuss an adviser’s caseload with a client. However, it’s important the client feels confident their case worker has time for them and can access their information quickly and easily.
The managers perspective
For a realistic assessment of workload and capacity, an adviser should maintain:
- a list of open and closed cases
- a diary of deadlines and time limits
- an ongoing to do list – with dates and priorities.
A welfare benefits caseworker may be conducting cases in either Social Security Tribunals, and more rarely the County Court, and the High Court.
They may be working with other organisations, solicitors and barristers on cases that involve different courts. A mixed caseload may involve social security law, equality law, public law and human rights law.
The rules and procedures in each court and tribunal are very different. It’s important that an adviser is clear when to refer cases on to a specialist, when to take a supporting role, or when to lead a case.
Most mixed caseloads will include a high proportion of disability and pregnancy discrimination cases. The type of discrimination cases that an adviser will have in their case load will reflect the clients of the advice agency, their own local reputation as an expert in certain types of cases, and their referral networks. Religion and sexual orientation cases are generally less common.
A more experienced adviser is likely to have cases with more legal claims on each case , as they will often identify more legal claims than those presented by clients.
A manager should be confident that an adviser who is advising on County Court discrimination claim is competent to do so.
From start to finish the skills a discrimination caseworker needs include:
- great client skills
- good drafting and pleading skills
- understanding of complex legal issues as well as the background and implications of the Equality Act provisions
- good grasp of the process in the county court
- great negotiation skills
- good tactical skills to argue and pursue the case
- ability to be a great advocate in court
- ability to inspire confidence in the client
- good case management and project planning skills
- ability to hold one’s nerve and keep confident
- ability to fight a case for a sustained period and in different ways and levels.
A good adviser will recognise their best and worst skills. They may need help and support with specific aspects, such as administrative support with particular tasks, support at crucial moments from a manager, or specialist or technical support. This doesn’t mean they aren’t great advisers – just that they work to their own strengths and know how to work in a team to give the best service to their client. If this approach is taken, make sure the client knows who is doing what in advance.
Preparation for discrimination cases in the County Court usually includes:
- preparing multiple and often lengthy witness statements for example in a case where there are several incidents of harassment (these can include many drafts)
- preparing lists of documents
- a thorough read through of the defendant’s documents
- instructing experts to provide reports, either medical or access related in a disability claim – this may involve joint instruction, and liaising with the expert and defendant
- preparing a schedule of loss: a schedule of loss may be needed if there is personal injury or specific damages (e.g. loss of benefit)
- drafting court documents (pleadings) – these must be agreed and understood by the client
- attending a case management conference
- attending an allocation hearing if the parties cannot agree which track to allocate the case
- cost budgeting if the case is in the multi-track (in which case you really do need a specialist)
- a schedule of legal issues agreed with the defendant – including details of what’s been agreed and what’s still disputed. This requires a clear legal understanding, a good grasp of the facts (and very clear and full instruction from the client), good tactical sense, and often holding one’s nerve in the face of opposition from the defendant.
If an adviser is not experienced and able to undertake all these tasks competently, the discrimination case should be referred to a specialist.
Discrimination cases that go to a hearing often take at least two or three days. Complex ones many take a week or more. Does the adviser have the capacity to represent at the hearing and handle their other cases? They are often complex factually and legally, so it may be appropriate to refer the case to an specialist barrister or solicitor.
An adviser who wishes to gain more experience in discrimination claims, can do so by referring a case and working with a specialist solicitor or barrister.
Assess how many cases are coming to a deadline or court hearing at the same time. What are the pinch points in the adviser’s workload? If several cases have critical points at the same time, then this may be another good reason for a case to be passed to another (experienced) adviser or referred to an external specialist for further support and assistance.
What are the minimum resources that an adviser will need for discrimination casework? A manager in a not for profit advice centre should try to ensure that future budgets reflect the cost of resources that your advisers will need, so that they have the right resources to respond to the (legitimate) demands of defendant solicitors. It is possible to obtain many resources free online, but a realistic budget is important to pay for proper legal resources, case management tools (even something as basic as proper folders and wallets), and to attend training courses.
Case management process
The client perspective
A client won’t usually ask about case management procedures. However, they might ask for copies of documents that are important for their case – and should be confident that an adviser keeps these securely and can provide them quickly and easily.
The case record
An adviser should comply with any Quality Mark or applicable standard and know how to apply that to discrimination work. This will help with things like storing documents securely, meeting deadlines and working in a proactive way to solve problems.
- If possible, the adviser should follow a standard office wide method of case management.
- Time limits and deadlines are prominently marked on the paper file, in the adviser’s diary, and in a shared diary so colleagues and supervisors can monitor the case and support the adviser. If an online case management system or online diary is also kept, they should be marked on there too. To make things easy and efficient, there should be one central master record of dates and deadlines.
- How are time limits and deadlines recorded? On the due date? One or two weeks before? Is this clear on the diary record? Does that show what is to be done, client name, date due, which adviser? How are these reviewed to provide support and monitor an adviser’s workload?
- Correspondence and attendance notes are tagged and kept securely in date order.
- Documents are marked as original, copies, drafts, disclosed documents etc. Date, author and source should be clearly marked.
- Documents should be kept securely and in easily identifiable wallets or folders. For example, statements, medical records, documents disclosed by defendant, client’s own documents.
- Where there is more than one paper folder each folder should be clearly numbered (for example 1 of 5).
- A case plan should be prepared and easily located for any case that is not very straightforward.
- If documents are kept online, arrange them in a way that’s clear for others.
- Any GDPR requirements should be followed.
- What is the agencies policy on printing out emails that form part of case records eg containing client’s instructions?
- There should be an organised case and fling system with space for clearly tagged wallets, folders and lever arch files to contain statements and documents, drafts final versions, originals and copies (and any physical evidence is kept securely).
Any system of case management should enable a case to be quickly and easily picked up by a supervisor or other adviser, if the adviser handling the case is unexpectedly absent. That is a very useful test of the robustness and thoroughness of case management.
This guide assumes that most advice agencies will use a mix of paper and online tools to record cases. It is important that advisers and managers know where to store and find key information about a case.
The managers perspective
Many organisations will seek a casework or specialist quality mark. Even if your organisation doesn’t work towards a specialist quality mark, it’s useful to look through the criteria and try to apply these standards to your own casework.
Some quality mark requirements can seem onerous at first, but they have proved to be effective and useful in improving the quality of advice, the service the client receives, and the adviser’s effectiveness. The supervision requirements of quality marks make casework easier and better.
The main benefits of incorporating effective supervision and support into case management include:
Supporting advice workers: Discrimination casework can be demanding, and it is essential that support mechanisms are in place. Supervision will also help a manager to understand a caseworker’s development needs – these might be directly expressed or picked up during the supervision process.
Helping advisers to meet targets: Casework is likely to be carried out under a funding contract which specifies the amount and type of work the agency should do. If these targets are not met, this could have a negative impact on the organisation and the casework. Effective supervision will ensure that targets are on track, and that any problems are spotted early enough that they can be solved.
Developing services: A supervisor will have an overview of the range of work being carried out. This means they should be able to see trends and spot types of cases or demand for particular types of advice that can be developed to meet clients’ needs.
File reviews: These should check organisational and technical quality standards. How often these are carried out depends on how complex the cases are, and the experience of the adviser. As a starting point, three to six files per subject area, or 10% of all files should be reviewed every one or two months. This may be less or more depending on the experience of the adviser. File reviews should check paper files, time limits and deadlines, and any records held online or on a computer. A file review process should:
- examine the paper and computer files
- be done on a standard simple form that is fed back to the adviser and also kept on the file itself
- give an opportunity for the adviser and supervisor to discuss any issues that arise
- review previous file review findings for any trends
- support improvements in process and service.
Legal advice check: A check needs to be made that the advice being given is legally correct. If the supervisor doesn’t have the right knowledge and experience, this element of supervision will need to be delegated to an external specialist. It should include file reviews, and regular face to face follow up with the adviser, and feedback.
If the supervisor feels that external supervision is needed for the legal advice check, they will need to:
- make sure that any external supervision meets with any quality mark requirements – this may need to be authorised in advance
- check that the budget allows for the cost of external supervision. The rate and the number of hours required will vary according to the subject and the specialist’s experience
- check if external supervision will include at least a substantial face to face element –this is recommended
- find a suitable experienced and available supervisor with no conflict of interest.
Appraisals: A supervisor should arrange regular appraisals with their caseworker to discuss their workload, development opportunities and training needs.
Important questions for a supervisor to ask are:
- What overall progress is being made?
Have the adviser and/or client got bogged down in less important details? Is this as a result of tactics by the defendant to divert attention from critical parts of the claims and case?
- Does a case plan need to be reviewed and rewritten?
- Does the client understand that is the overall aim and what can be achieved?
- Is the adviser being proactive about progressing the case and the client’s interests, or are they being reactive to deadlines set by others?
The client perspective
A client should know that they are getting a good service.
The managers perspective
An adviser should:
- take a proactive approach to resolving a case in the best interests of their client
- recognise the importance of frequent clear communications
- recognise the importance of good record keeping and an orderly case file
- understand the importance of paying attention to evidence and the legal test necessary to prove a claim.
The Legal Aid Agency (LAA) and the Institute of Advanced Legal Studies have produced a number of guides about improving quality. These guides are based on the findings of peer reviewers who work in the LAA audit process. There is no specific guide for welfare benefits or discrimination casework. However, it is useful to look at the findings and suggestions in the other guides, as they include many relevant points.
Negotiating settlements: merits and evidence
The client perspective
Merits: how strong is a case?
For a client to be fully informed and able to make a decision about settlement options, the client should be told clearly and at regular intervals about:
- merits – how strong is the case – both factually and legally
- risks, legal issues, evidence, defendant’s attitude
- the amount (or quantum) of any likely award for injury to feelings
- possible remedies at court / tribunal or through negotiation
- likely length of case
- how the court and hearing process works – some clients find it helpful to attend court to view another hearing.
While most cases will be resolved, this will only happen if there is co-operation on both sides. It’s important to explain this to a client There can be no settlement if the defendant does not want to settle. Settlement of a claim without going to a full court hearing inevitably involves some compromises on both sides, or at the very least recognition and acknowledgement of the other side’s position.
To achieve a good settlement, your client needs to:
- have confidence in the adviser’s judgement about the case (the merits, the evidence, the risks, the defendants tactics)
- know what the options are if a satisfactory settlement can’t be achieved
- know if they can pull out, and if there are any costs risks
- understand the likely outcomes at a court hearing
- know how long the case will take.
If a settlement offer is time limited, the client should be told that clearly, and understand the consequences if the offer is withdrawn (this is rare but it can happen).
If a Part 36 offer is made or received, the client should be fully advised of the implications of accepting or rejecting the offer, including costs risks.
Clients should be advised about any mediation options, and the pros and cons of using mediation for their case.
Clients need to know very clearly what the possible outcomes are. The client’s view of a successful settlement may not be the same as the advisers so it’s important not assume you know what they want.
As well as compensation, it may be important for them to have:
– the opportunity to have their case heard in an independent court of law
– to hear the evidence of other witnesses
– an admission or an apology
– acknowledgement of their distress or an expression of regret from the other party
– a longer term change of practice or policy.
If it is likely that a client will be advised that they should not go ahead with their claim, it is often useful to arrange for a client to have an opportunity to put their own views and concerns to the specialist adviser. In a difficult case this can help the client to come to terms with any negative outcome. They know that an expert agrees with the adviser and that their issues and thoughts have been properly heard and considered.
The client should be told what further information is needed, why and when:
- to assess the merits
- to assess the value of the claim
- to prove any parts of the claim
More information could be needed for analysing factual disputes, legal issues or losses.
It should be clearly agreed between both the client and the adviser who is going to be collecting evidence, and when this evidence is needed. If a court has made an order and a document needs to be found, the adviser should make it clear to the client what will happen if they don’t supply this on time.
A client should be advised clearly about the reasons for producing and sharing evidence. This advice should include an explanation of what the court or the tribunal be looking for, and what the court or tribunal will need to decide based on the evidence they see.
Particular care needs to be taken about deciding who is to contact witnesses, explaining to witnesses what is needed from them, and any involvement expected of them in the court process. This will normally be done by the adviser, but this can vary depending on the relationship between your client and the witness.
The rules about disclosure and inspection are set out in the Civil Procedure Rules (CPR Part 31). In summary, the claimant is expected to disclose any documents that support either their case or the other party’s, as well as any which do not support their case. If the defendant has a document which supports what the claimant says, they should tell the claimant that it exists. The obligation to allow the other party to see the documents in your control continues until the court proceedings are over.
It’s important that the client only gives relevant evidence. The adviser should make sure the client understands what can be used as evidence and why. The client should be involved in deciding which documents to use in court or at a tribunal.
A client whose case goes to a full hearing should understand the basics of how a tribunal or court will use:
- documents in a bundle (the documents that the judge will read at the Court hearing)
- witness statements
- oral evidence
- expert evidence.
The case record
The case record should include:
- full, clear written advice.
- updated schedule of any losses (and a note of disputed and undisputed elements)
- best- and worst-case scenario analysis: quantum, factual and legal
- clear references for any case law relied upon if the issues are about legal interpretation
- clear advice on tribunal and court processes
- client’s instructions in writing about settlement offers – this is evidence that the client has been given full information and time to consider offers
- clear explanation of the costs risks that apply in that court.
The case notes should record who is to collect what evidence, when, and why.
Documents should be clearly and securely stored and kept. They should be marked as originals or copies, and clearly marked with their source (for example, ‘own evidence’ or ‘evidence from the defendant’.
If for any reason any evidence on file is not be disclosed (for example,e a witness statement) that should be clearly marked and noted.
When a list of documents is prepared, the documents themselves should be copied and placed in a folder or securely tagged wallet and marked by reference to their document number on the list. This will make them easier to find later. An adviser should not include a document in a list unless they and their client have seen that document, and the adviser has a copy of the document.
The managers perspective
An adviser should always consider the options for settlement with a client.
If an adviser is unsure of any merits or risks etc they should seek specialist advice (eg a barrister who is experienced in this area of law), and clearly explain that advice to the client. It is important to retain the client’s confidence and to give the specialist adviser all the relevant facts. The case record should show what the specialist adviser was told, and which documents were sent to them.
It is of course difficult to give precise figures about expected outcomes. Much will depend on the type of cases, the client’s instructions, the merits of the cases, the defendant’s attitude, and the adviser’s negotiation skills. However, a supervisor should investigate further if:
- an adviser settles 100% of cases *
- an adviser settles less than 60-75% of cases
- If most discrimination cases settle for £1000 or less for injury to feelings
- If an adviser accepts first offers in more than a few cases
- If an adviser accepts the offered terms of settlement without amendment in more than a very few cases.
* if an adviser is only conducting County Court discrimination claims it is likely that more claims will settle at an early stage because of costs risks. If an adviser is also conducting Employment Tribunal discrimination cases, there is more likelihood that cases will proceed to a hearing.
A good settlement is achieved from a position of strength. Advisers should be preparing the case for hearing and ensuring the client is in a good position for any court action, as well as negotiating. It is the adviser’s job to create and maximise the strengths of a case by applying timely pressure to the defendants. This might be by asking for documents, seeking admissions, pointing out supporting case law, explaining why their case will fail, making appropriate offers to settle etc.
If a client’s case is weak and this is the reason that an out of court settlement is sought, the adviser should clearly explain this to their client.
An initial assessment should not be over-optimistic. This may cause problems – giving the client unrealistic expectations, for engaging the defendant in negotiating, and also may show the adviser does not have a good idea of what is likely. It is often difficult to assess a claim fully at the outset as you don’t yet have all the evidence. Sometimes a settlement at significantly lower than the original figures may be queried later. This may be fine, provided the adviser has explained this on the file. For example, if this was an explicit tactical decision, if there was new evidence, this was the client’s informed specific instructions, or there were other altered circumstances.
A manager may consider the following when they review an adviser’s assessment of the merits of a case:
- What is the adviser’s view of the merits of the case?
- Have they built in time to the case preparation to make that analysis? Is that properly reflected in the time recorded on the file?
- Has the client given the adviser full and proper information and full instructions about what they are seeking from the case? Can a proper assessment of merits and risks be made?
- Has the adviser seen all the evidence needed to make an assessment of costs risks? If the present assessment is a provisional one, does the client know that it might change?
- Is there any risk of costs attached to the advisers conduct of the case? Is it completely clear who has responsibility for any action to be taken in the litigation, complying with court orders?
- Has the caseworker obtained a second opinion on any aspect of the case? For example, from another adviser, specialist support, a barrister? Is it clear what information about the case was given to the person who gave that second opinion? Has the second opinion been explained to your client?
An adviser needs to be familiar with the risk and benefits of using:
An adviser should also be aware of some practical and tactical issues about evidence, such as:
- the credibility of your own client
- using witnesses who are reluctant or ‘hostile’
- using evidence sources such as recordings, texts, CCTV
- medical records.
If an adviser is considering an FOI, it is useful to look first at the What Do They Know website. This site has a searchable database of other FOIs and the responses.
File notes should show that client and adviser have thought about and agree:
- the case to be proved
- how to obtain the evidence needed
- the purpose of each document to be used in proving that case.
Documents and statements should be clearly marked:
- draft or final (and with dates of preparation)
- if disclosed, when and how (open or without prejudice)
- copy or original
- identifiable by reference to item number in a list, witness statement or court bundle.
Strategic cases – some client care issues
The client perspective
It is essential that a client who wants to take action knows the possible outcomes that can be achieved for them, and the limitations of the action they can take. The immediate benefit for the individual client in judicial review or other strategic casework can be limited, as the actions will be addressing the need for wider longer-term changes.
The manager perspective
These are some of the questions an adviser or manager needs to consider before taking action on behalf of or with a client:
- Does the client understand what outcomes any actions can achieve for them? Has this been explained in writing?
- How can you make sure your client does not feel pressured or obligated to participate in strategic casework or action?
- If your client’s case about is part of a strategic plan, how do you identify appropriate cases to take forward – and see above point
- If your client wants to take Judicial Review action against a public authority, and you are concerned about your agencies relationship with that authority (eg if they are a funder), how do you decide what action to take and assess the risk and benefits?
- Are your clients interests paramount? How do your agency’s interests match with your client’s interests? Even if you decide at the outset that they are the same interest, you will need to carefully review and consider this throughout the matter.
- When you assess the risks, merits and benefits of action you can take, how do you appropriately assess those benefitting your agency and those affecting your client?
Taken together this looks like a daunting list. But if you recognise these issues in advance then you will be able to deal with them tactfully and appropriately.
Questions and answers for managers
This Q&A is for advice managers who want to review discrimination advice and casework. There is more information for advice managers in the Guide to managing discrimination advice.
A note for managers: This review guide is intended to help non-specialist managers of advisers who are advising on discrimination claims. In any circumstances where the answers are unexpected, a manager should ask more questions and consider if they wish for a case to be reviewed more fully by a specialist.
Question: What is the basis of the discrimination claims?
What should an adviser do? An adviser should ask their client to clearly describe the discrimination, including what happened and who was involved. This will form the basis of the client’s witness statement. The adviser should also take a note of any supporting evidence, or background to the situation. If there is background evidence, that can be helpful, but it should not overwhelm the specific allegations. Vague allegations or a lack of detail may make the claim difficult to prove – the adviser should tell the client this and encourage them to give as much relevant detail as possible
What should a manager know? Discrimination claims are based on facts, and the law. An adviser needs a good understanding of the facts in order to legally analyse discrimination claims. If there is not sufficient evidence, can a strategy be put in place to get more evidence? Will that require more resources, for example more time, or help from another adviser? Will that evidence be forthcoming? Will it make a difference to the prospects of success?
If a case has vague allegations about discrimination and it is not possible to obtain more evidence, then the claim should be discontinued or an appropriate settlement agreed as soon as possible. Pursuing weak claims will cause reputational damage and expose a client to costs risks .
Question: When did the discrimination happen?
What should an adviser do? An adviser should have a case file that clearly shows a date, or time frame, for each alleged incident of discrimination. A clear chronology can also help to show causation (the links between events, or the links between actions and may uncover additional claims (eg victimisation) or other issues.
What should a manager know? The usual time limits in discrimination claims in the County Court for claims against service providers and public authorities is six calendar months, less one day. The time limit is calculated from the date of the discriminatory act or omission. It is sometimes possible to argue that the discrimination is a ‘continuing act’, in which case the time limit runs from the date of the last act in a series. Time limits in discrimination claims can be complicated. There may be genuine problems with the client remembering dates or events. It is possible to argue that for an extension of the time limit, where it is ‘just and equitable’ for the Court to extend time. That argument can be risky. It is important to show clear grounds for that kind of time limit extension.
Time limits are very important, and claims need to be brought in time. It is important to be clear about which events are background evidence, and which are allegations upon which the legal claims are based. Sometimes clients are vague on dates, and this can be a warning sign of risks including weak evidence or problems with time limits.
Question: What type of discrimination?
What should an adviser do? An adviser should be able to identify both the reason for the discrimination (the protected characteristic) and the kind of discrimination (the prohibited conduct). The prohibited conduct might be:
- direct discrimination (less favourable treatment)
- indirect discrimination (disadvantage due to a provision, criteria or practice)
- discrimination because of something arising in consequence of a disability
- victimisation (reprisal for a complaint about discrimination)
- failure to make a reasonable adjustment
An adviser may also raise a breach of the Public Sector Equality Duty (section 149 of the Equality Act 2010). That does not give a client the right to bring an individual claim, it is a public law argument about a breach of a statutory duty.
What should a manager know? The legal test for each type of discrimination is different. Sometimes it is not clear, and the adviser may need to plead alternative claims. Where this is done, the adviser should show a clear consideration of the risks attached to that strategy and the reasons for it.
Discrimination may sometimes be legitimately argued in different ways. It is rare that something will be properly argued as both direct and indirect discrimination. This may show a misunderstanding of the legal tests, or a failure to collect the right evidence.
Question: How does the evidence support the discrimination claims?
What should an adviser do? The adviser should clearly set out on the file the evidence that supports each claim. For example:
- who is the actual or hypothetical comparator for a direct discrimination claim
- what is the provision criterion or practice in an indirect discrimination claim
- what is the substantial disadvantage in a reasonable adjustment claim
- what adjustments could have reasonably been made in a reasonable adjustment claim?
What should a manager know? In a successful case, an adviser will be able to show the links between the facts and evidence in the witness statement, and the legal tests for each allegation of discrimination.
Question: What is the next step in the case? When? Why?
What should an adviser do? An adviser should keep on the case file a case plan, advice letter or review checklist that clearly shows:
- the client’s preferred outcomes
- that the client has been kept up to date on progress
- any further investigation that is needed
- the current status of negotiations
- the current status of any tribunal or court process
- clear deadlines and key dates
- the case strategies (to achieve the above).
What should a manager know? A manager should be able to read and understand the case plan. The case plan should be realistic, well set out and include:
– time limits
– the adviser’s availability and resources
– the client’s objectives and expectations
– any risks and funding issues.
An adviser may need a double-track strategy: how to win the case in court, and how to achieve a successful settlement. The case plan should reflect this.
For more information for managers, see Guidance on managing discrimination advice delivery
The next section; ‘Showing the equality impact of benefits advice‘ explores how you can show equality impact using the EHRC Measurement Framework.