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In R (Mencap) v The Health Service Commissioner CO/6118/2009 (17 November 2011) the Claimant sought a declaration that: “[w]here a health service body has failed to comply with the “reasonable adjustments” duty arising under section 21(1) of the Disability Discrimination Act 1995 that is a failure in a service and/or a failure to provide service and/or maladministration within the meaning of section 3(1) of the Health Service Commissioners Act 1993; alternatively, that such conduct falls outside the range of reasonable practice for section 3(1) purposes.” Mitting J. refused to make such a declaration holding that where a health service body had failed to comply with the “reasonable adjustments” duty arising under the provisions now contained in the Equality Act 2010 that was “not necessarily” a failure in a service and/or a failure to provide service and/or maladministration within the meaning of section 3(1) of the Health Service Commissioners Act 1993. The Equality and Human Rights Commission intervened to support the Ombudsman on this issue. The learned Judge also held that the Ombudsman’s approach to disability discrimination issues as disclosed in a number of reports was a lawful and proper one. The Court also followed the Court of Appeal’s decision in R (Maxwell) v Office of the Independent Adjudicator [2011] EWCA Civ 1236 (judgment handed down 27 October 2011) in holding that the Ombudsman did not need to form a view on whether there had been disability discrimination in any case. James Maurici appeared for the Health Service Ombudsman instructed by DAC Beachcroft.
