Topic: Discrimination Issues

[marcitos]

Dear All

Unfortunately, as someone with disabilities, I strongly feel I have been discriminated against on the site where I garden.

Having gone through all complaints procedures on the self-managed site where I garden & the local authority I have now complained to the ombudsman.

I’d be grateful to know whether any of you out there are on self-managed sites & have disability policies. If so,

-   Do you believe you have a legal duty to have such policies, and why?
-   In your license agreement with the local authority is there any mention of compliance with discrimination laws?
-   Has anyone been on the end of discriminatory practices? What happened?

Marcitos

[elvis2003]

Im not aware of any such policies,we as a committee are not given any guidelines to work within at all,we use our own common sense and knowledge brought in from other areas of our lives.However,we are in the process of building an accessible plot,but as we do this jib as volunteers,and only a few are involved in this,it takes a long time to do,from the initial planning stage,to fundraising,managing it all etc etc
Ill watch this thread with interest!

[pumkinlover]

If you or the Allotment Association are members of the NSALG or similar organization you will be able to ask them for advice

[tonybloke]

Dear All

Unfortunately, as someone with disabilities, I strongly feel I have been discriminated against on the site where I garden.

Having gone through all complaints procedures on the self-managed site where I garden & the local authority I have now complained to the ombudsman.

I’d be grateful to know whether any of you out there are on self-managed sites & have disability policies. If so,

-   Do you believe you have a legal duty to have such policies, and why?
-   In your license agreement with the local authority is there any mention of compliance with discrimination laws?
-   Has anyone been on the end of discriminatory practices? What happened?

Marcitos

woah!
a lot more info needed before any advice can be given here!!

exactly what are your issues ( disability and perceived discrimination )

our association does have an 'equality & diversity policy' By the way ;)

[Digeroo]

Can yo give some kind of pointers as to what kind of discrimination you have suffered?  

Are we talking about discrimination by attitude or through lack of funds?

PS I have a disabled daughter and husband so I am not unsympathetic but I am also aware that in reality there are problems.

[marcitos]

Thanks for your responses.

I am not aiming this post as a bash self-managed sites issue. I know very well that well run sites provide far better service than LA’s & often quite cheaper.

Unfortunately, it is the Committee that I believe have discriminated against me, so I haven’t been able to get help from the NSALG. I also believe that when issuing self-managed licenses the LA didn’t carry out its statutory duty with regard to devolving management as far as equal opps is concerned.

The reason I’ve posted is that there seems to be very little info regarding disability discrimination on allotment sites. I have been to the EHRC, RADAR, CAB etc… for advice & I feel reasonably well read re- the law. (this took place pre-2010 Act).

I have a physical disability in my right hand & forearm, which is neurological based. What I can achieve physically depends a lot on the motor action involved, usually, the more intricate the action needed the more difficult it is for me e.g. I can’t write with my right hand (I am right handed). I asked for help to cut a hedge on one side of my plot which is approx 60ft long x 7ft high x 5ft wide. I can’t use hedge cutters. I was turned down.

The Committee claim they have no obligations under the DDA (we are an Association with over 25 members). The Council gave the following:

They (the Committee) must act within terms of the Allotments Act. However, as a community group, the committee are not a public body and are therefore not subject to the DDA and Human Rights legislation. There is nothing in our allotment tenancy agreements that creates a duty on us or The Limes Committee to provide assistance. Equally there is nothing in the parent or secondary legislation that confers a duty to maintain allotment plots on any person other than the tenant who voluntarily entered into the agreement.

As the only related discrimination case I can find is Eric Gillingham v Ferryhill Council, I was wondering whether anyone had any experience similar to myself, whether other self-managed sites act differently to mine, & whether your LA has anything re – equality in the license agreement.

Marcitos

[SMP1704]

Marcitos, I am sorry that you are encountering difficulties on your site.  From my understanding of DDA, the LA are correct in their assertion; their statutory duty is to provide access and could probably successfully argue that the hedge does not constitute part of that duty (although I don't know the location of said hedge etc)

As you know, with rights comes responsibilities.  Did you take on the plot with hedge with your current disability, i.e., you knew that you would be unable to maintain the hedge - did you make the committee aware at the time and specify your additional needs?  What other actions could you reasonably take to maintain the hedge, e.g., ask friends, pay a gardener, petrol hedgetrimmer?

I have to say that as a non-disabled person, I would have thought long and hard before taking on such a plot with built-in maintenance issues.

Is the underlying issue now a non-cultivation notice?

[elvis2003]

I too am sorry to hear about your current situation,it must be frustrating to say the least.However,as a committee member myself,I do help out whenever possible when folk are struggling with plots for whatever reason,time allowing,but as Sharon said,someone with an ongoing issue like yourself would normally rope in a family member to lend a hand. Imagine if everyone on a site had a similar problem,would you expect any committee to have the time/manpower to address it on each occasion? I hope this gets sorted for you so you can enjoy your plot
Rach

[jules2]

Is the hedge an external or internal boundary, if its external I can't see why you are expected to cut in the first place.

[Mr Smith]

   Marcitos,
                 If what you saying is correct you cannot be discriminated against for your disability, it is against the law, full facts please and I'm sure one of our in house allotment lawyers will be able to sort your problem out, I hope your allotment society realise what they are doing because they could well end up in the poo-poo!, :)

[marcitos]

Hi Everyone

Thanks for getting back. I hope it can be appreciated that this situation has been going on for a long time. To give a ‘blow by blow’ account would have probably meant me posting a ’30 pager’. I am happy to provide further info. It’s probably better to do this when someone asks.

At the end of the day it would be for a court to decide whether discrimination has taken place or not. I appreciate people may have an opinion on such matters but I’m only going to post with regard to law, rules & regs.

In answer to some of the posts so far:

-   I did make the Committee aware of the problem. The law as I understand it is that a service provider should seek to remove or alter a physical obstruction if it interferes with, in my case, the normal use of my plot. I do understand that cost & resources would be a factor & I certainly wouldn’t expect anything to be done if it meant financial problems for the site.
Under the 2005 Act, LA’s have a proactive & anticipatory duty to combat 
discrimination (see The Duty to Promote Disability Equality:Statutory Code of Practice). I believe that Allotment Associations take on the General aspects of the Duty (see CH2)
-   With regard to resources – work has been carried out on others’ plots during this time period, e.g. strimming overgrown areas, digging plots over. on plots not occupied by people with disabilities. Our site had a ‘Community Payback Team’ working on a ‘Sensory Garden’, they also did work on some plots. They were on every Sunday for 8 months. The site has £5000 worth of assets. The Committee invested in a petrol driven saw to deal with such things as wild saplings and er…….hedges. The Committee offered to cut the hedges of some plotholders even though they didn’t ask for it or want it. For the Sensory Garden a grant of £4600 was gained, this money was also to make the site (as a whole) more accessable.
-   Family, friends etc.. Firstly, there are several people on site willing to help. However, when I tried to cut the hedges myself (leaving me in really bad pain for 6 weeks) I was told that the way I had cut it ‘breached my tenancy agreement’. Any communication to the Committee re what dimensions the hedge should be cut to has been unanswered. Secondly, & I am probably not correct in this & would welcome advice, is the insurance factor of someone helping me who then gets injured
-   I can appreciate that Committees are volunteers. Rather than looking at the individual as a problem, it may be worth thinking whether the license agreement was drawn up by the LA with due care & attention. Did they explain, exactly, what taking on the site management entailed?

Marcitos

[Digeroo]

This is not only a disability problem.  I do not consider myself disabled but I would have a problem cutting a hedge or using hedge cutting equipment. 

I think that the committee need to discuss precisely how they are going manage the hedging.  When is the AGM?   I suggest you get this matter onto the agenda. 

I wonder whether using the disability card is alienating people. 

[Robert_Brenchley]

I know the problem; I've developed chronic fatigue syndrome since taking on my plot, and have a lot of difficulty with my own hedges. My neighbour on one side has gone along the top on his side, so it's just the other to sort out now; I can manage the sides without difficulty.

Is there anyone who could help you out with your hedge?

[kt.]

On our site all plot holders are responsible for their own boundaries and this includes any hedge boundary should the plot have one.  We have several people with disabilities on our site and they have friends and family to assist in hedge cutting.  We do not have the funds to pay for cutting hedges as we found out in years gone by.  Any site maintenance and improvements come from allotment rents, nothing from the council.  

What about requesting a swap should a more suitable plot become available? Examples:  3 months ago I had an elderly plotholder who was struggling with a full plot that was at the top of our site, up the hill.  A 1/2 plot became available near the entrance gate at the bottom of the hill.  He is much happier and on this more manageable plot.  

2 weeks ago I had some half plots available.  One new tenant is in a wheelchair most of the time.   To suite his disability, he took on a 1/2 plot not far from the entrance, on the main central track, right next to the carpark, with a tap opposite his gate.  There is a 15ft long hedge (probably the shortest boundary hedge of all our plots), that he must maintain and this was explained prior to signing the contract.  He has fencing on the other 3 sides.  He said that was not an issue.  

Could you request a swap to a more suitable plot as and when one becomes available? Is there no scope for a compromise? Any work carried out on one plot may result in all other plot holders footing the bill in rent rises and this is not right, also most committee members are volunteers and not obliged to work other members plots.

[marcitos]

Hi Again

Thanks to those who have contributed further.

I will re-iterate that I have help but there is no guidance on how the hedge should be kept. (see my previous post). Also, vis-à-vis resources on site, see my previous post.

I have been through a mediation process (at my request), the sites complaints procedure & council complaints procedure.

I can garden quite effectively (they’re called coping strategies) & have spent quite a lot of money on fruit trees, fruit bushes etc. The hedge has encroached so far as to cover my things & interfere with further plot development. I am now, however, on Incapacity Benefit. So I don’t think it reasonable to change plots & start over again.

There seems to be an underlying trend of placing the burden on the individual. Maybe, as I suggested in an earlier post, because the guidance etc.. about setting up a self-managed site has not been properly thought through by LA’s nor explained to Committees.

As I’ve also suggested, that I am interested in how the sites are set up in accordance with relevant rules, regs & laws. Perhaps some posters may want to reflect after reading the link below.

http://www.equalityhumanrights.com/advice-and-guidance/guidance-for-service-providers/associations-clubs-and-societies/

I’m actually trying to be fair & help, if possible. So that other disabled people are not treated so poorly & those that have innocently taken on sites and are running them very well don’t fall foul of obligations they didn’t know they had to carry out. See my post under the ‘Equality Act 2010’ thread.

Let me know what you think

Best regards

Marcitos

[djbrenton]

TBH I rather think you're getting confused between your membership of an Association and your tenancy. As a member of the Association, equality laws mean that you must not be disdvantaged within your membership. This means, for example, that an Association shop must be accessible. Your tenancy, however is another matter. Imagine, if you will, that you privately rent a house then turn to the landlord and try and tell him he has to clean the house for you as you can't do it yourself.

"There seems to be an underlying trend of placing the burden on the individual"

Yep, that about sums it up. When you take on a tenancy you take on certain responsibilities. If the agreement says the hedge has to be kept neat, then that's your responsibility. Not the Committees, the Council's or the European Court of Hedge Trimming.

I speak as the driving force behind a failed attempt to create some disabled plots on our site. I have all the time in the world for helping others but I do resent anyone trying to say that they can offload their responsibilities under their tenancy agrremment onto others as a right.

[marcitos]

Sorry, but I was hoping not to rise to any bait on here as I only wanted some factual info. However, as you've gone out of your way to be rude.....

TBH I rather think you're getting confused between your membership of an Association and your tenancy. As a member of the Association, equality laws mean that you must not be disdvantaged within your membership. This means, for example, that an Association shop must be accessible.

Not that simple according to what I understand from EHRC. The Association has taken over the site management & must manage the site within the law & relevant duties.

Your tenancy, however is another matter. Imagine, if you will, that you privately rent a house then turn to the landlord and try and tell him he has to clean the house for you as you can't do it yourself

The landlord is the LA. Not sure if this still happens but if you rented a council house & you were so disabled you couldn't clean your house there used to be something called home help.

What would be your take if the landlord cleaned other tenant’s houses who were quite capable of doing it themselves but refused to clean the disabled persons?

"There seems to be an underlying trend of placing the burden on the individual"

Yep, that about sums it up. When you take on a tenancy you take on certain responsibilities. If the agreement says the hedge has to be kept neat, then that's your responsibility. Not the Committees, the Council's or the European Court of Hedge Trimming.

If the tenancy agreement doesn’t comply with relevant legislation it doesn’t hold much sway in its implementation. In this case (from October 2010 that is) the Equality Act.

I speak as the driving force behind a failed attempt to create some disabled plots on our site.

From whose perspective did you ‘drive’, yours or that of the disabled?


……I do resent anyone trying to say that they can offload their responsibilities under their tenancy agreement onto others as a right

Probably as much as I resent organisations that purport to be ‘disabled friendly’ but never deliver & people who want authority but then abuse it.

[kt.]

I will re-iterate that I have help but there is no guidance on how the hedge should be kept.

Our ruling is that plot boundary hedges must not be higher than 6ft; or obstruct main access pathways around the site as they need to be wide enough for emergency vehicle access.

[elvis2003]

Marcitos,can you supply more info,what happened after the mediation,what does your LA have to say about this? and finally,what do you wish to happen as an end result?

[djbrenton]

So what's next? A quadraplegic claiming that the requirement to cultivate disadvantages them and the Association should do all his/her digging and planting? Get your friends or family to cut your hedge and get on with life.