Host: Jen Ang

Quote: Louise Whitfield

I think there is so much more to be done with and, for disabled people to secure justice for them, it’s almost impossible to know where to start.

Jen Ang

Hi, everyone, and welcome to the Lawmanity podcast, where we explore the complex relationship between law and activism and discuss different ways law can oppress people, but can also lead to real social change.

I’m Jen Ang, human rights lawyer and activist based in Scotland and your host on the Lawmanity podcast.

This week we have three fabulous guests lined up for a special edition on disability rights. Get ready for a fearless and frank conversation about the state of disabled people’s rights in the UK, the role of strategic litigation in pressing for change and what more needs to be done for rights on paper to be realised in the lives of, of disabled people. 

Today we’ll start in Scotland, where we’ll be hearing from Heather Fiskin, Chief Executive of Inclusion Scotland since 2024, and from Tressa Burke one of Glasgow Disability Alliance’s founder members and Chief Executive since 2006.

Then we’ll head down to London to speak to Louise Whitfield, human rights lawyer and head of legal at the award winning civil rights NGO Liberty.

So let’s get started. First we’ll meet Heather. She began her career in the UK civil service, during which time she lost her hearing and joined ranks of profoundly deaf people. Now, Heather confessed when we recorded this interview:

Heather Fiskin

I never listened to a podcast in my life before because they tend not to be accessible. So I’ve kind of jumped the gun by being involved in one as a deaf person!

Jen Ang

Well, she smashed it, in my opinion. But you be the judge. After leaving the civil service, Heather moved to the newly formed Disability Rights Commission in 2000 and then went on to lead the Independent Living in Scotland project, first at the Equality and Human Rights Commission where it was hosted, and later at Inclusion Scotland, a Disabled People’s Organisation and a national network of Scottish DPOs. She became Chief Exec of Inclusion Scotland in 2024.

A mum of a teenager and human for a friendly and barky dog, her life revolves around responding to Mum, can I have Mum, where’s my. And hey, human, take me for a walk.

Heather, that was a beautiful introduction and it’s so nice to see you here today.

Heather Fiskin

Thank you, thank you, thank you for having me.

Jen Ang

So listen, in this podcast I have been experimenting with an opening question to get us settled and to help people learn a little more about the people behind the legends we’re interviewing. A good friend pointed out that our sense of smell is our oldest sense and observed that we can hold deep connections between the sense of smell and our memories.

So if you don’t mind, could you please tell me about a smell that is meaningful to you, Maybe a smell that you really like, or one that is connected to a time or place that you like to bring to mind.

Heather Fiskin

My mum, my gran were both brilliant cooks, lovely cooks. So I suppose if I had to pick one smell that’s really evocative. It’s Tuesday night and it’s pouring with rain in the middle of winter and Gran is visiting and she has made her mince and potatoes and apple tart, which is what you always made. And she was brilliant at apple tart. So, yeah, and it just makes you feel all safe and comfortable and young and full of hope again. And there is nothing better than your granny’s mince and potatoes. And I’m quite sure quite a lot of Scottish people watching this will go, yeah, mincing potatoes.

Jen Ang

Thank you so much, Heather. When you describe that I can almost smell that. I almost feel like I’m at your table. and I think many people, people have deep memories from their childhood about food they loved.

And now let’s bring Tressa Burke onto the podcast. Tressa, as I mentioned earlier, is Chief Executive of Glasgow Disability alliance, steering it from its fledgling vision of supporting disabled people’s voices and tackling social isolation in 2001 to the multi award winning community of more than 6,000 people. It is today in 2026. Welcome to the show today, Tressa.

Tressa Burke

Thanks so much. Thanks for having me.

Jen Ang

I asked Tressa to share with us, her memory of a favourite smell.

Tressa Burke

That’s an interesting question. I suppose thinking about something that takes me back is smell of my nana’s perfume. She used to wear Coty L’Aimant It was in a wee black bottle with a wee stick that you used to use to apply it. And it just takes me back thinking about that. I can smell it actually, as I’m saying the words.

Jen Ang

Oh, amazing, I love that. And finally, let’s welcome Louise Whitfield, Head of Legal at the NGO Liberty in London, joining us to talk about one of many groundbreaking cases she was involved in with DPO Inclusion London, a sister organisation to Heather’s Inclusion Scotland, where together they worked to challenge the closure of the Independent Living Fund and prevent a massive loss of services and support to disabled people across London.

I asked Louise to share a smell with our listeners that she finds important.

Louise Whitfield

I really love the smell of fresh mint and I like it because it is so refreshing and strong. And we have two different mint plants in our garden at the moment, which we pick to make fresh mint tea. And it is just such a great sensation to be able to smell it.

Jen Ang

Oh, I love that. It’s really transporting, actually, as you say that I can imagine your garden kind of the hot summer sun, which we do have a little bit of today as we’re recording. And, I also have mint in my garden and I’m actually thinking, yes, I must actually make more use of that. So thank you for sharing that, Louise.

So now we’re going to head straight into the tough questions. My first question for Heather and Tressa was, do you feel the law works equally for disabled people in Scotland today? And why or why not?

Heather Fiskin

I think the short answer is no, unfortunately, it should. It absolutely should. But now, and, I think the evidence spells that, we still have massive employment gap, disabled people are not getting jobs they applied for. We still have discrimination in every walk of life.

So the short answer is no, whether you’re looking at the statute or whether you’re looking at the system and the process. So, unfortunately not. I think also another example alongside employment, one that people maybe don’t think about unless it’s their area of expertise, is contract law. So where you have these big public contracts going on, and I know nothing about contract law. I mean, incredibly complicated, you know, that buildings, you know, big cityscapes are being built.

But where are disabled people in this? Even in the 21st century, when we have all these standards of what should be being produced and what should be being created for people to live and work in, they’re just not accessible.

And that goes on to the management of the building as well, and the way it’s maintained and operated on a daily basis. When you start getting, you know, the staff put the handbags and the rucksacks in the wheelchair accessible toilet, so what’s the point of having one? Or the cleaner ties up the rope.

But I would urge anybody listening to this if you do use an accessible toilet, because that’s the only option, or you’re with somebody who requires to use it and you see that emergency rope tied up, please untie it and get it back to the floor, because that’s what it’s meant to be.

So know, the statute is there. We do have a reasonably good statute, but it doesn’t operate in practise for all kinds of reasons.

Jen Ang

Heather refers to the statute here, by which she means the Equality Act 2010. The Equality act is a consolidating piece of legislation that was intended to modernise anti discrimination law across the uk.

This law was previously codified in many different acts, including the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995, plus others which prohibited discrimination on grounds of religious belief, sexual orientation and age. Now, the Equality Act created a single framework that prohibits direct and indirect discrimination on grounds of certain protected characteristics such as age, disability, sex and gender, race and religion, and so on, but only in England, Wales and Scotland.

Equalities legislation in Northern Ireland is governed by separate legislation specific to Northern Ireland, as well as an overarching duty on public authorities there, which is set out in section 75 of the Northern Ireland Act 1998.

Returning to Tressa, similar to Heather, she draws out the gaps between what the law provides and disabled people’s experiences of discrimination. In answering this question.

Tressa Burke

So complicated. It absolutely should, but it appears not to be the case from all the evidence that I’ve seen over my more than 30 year working life working with disabled people and for disabled people. So we have a raft of pieces of legislation.

So my background is I’m a social worker to trade. So I’m not just talking about the, you know, the Human Rights Act, the Disability Discrimination Act, the Equality Act. I’m also talking about the Chronically Sick and Disabled Persons Act, the Disabled Persons Act, the Direct Payments Act, the Self Directed Support Act.

So there is a raft of legislation that tells disabled people that they should have rights across a whole range of areas. Some of them are about social care to enable independent living, some of them are about education and employment and provision of goods and services.

Yeah, I would confidently say that disabled people do not have those rights observed or realised across most of those areas. I don’t think there is any area where I could say that I think disabled people fully have the rights.

So, I mean, it’s a long answer, but I don’t think that the law is working for disabled people, for diverse disabled people who are not only people with conditions and impairments, but who are also black and minority, ethnic or people of colour. They are lesbian, gay, bisexual, transgender, queer. They are women, they are older people and younger people. So the law is not working for disabled people, but also very marginalised disabled people within that.

Jen Ang

So for you, as an activist and someone who has been working in this field for a long time, do you feel that in your work the law is a barrier or a tool or both in the struggle to achieve greater equality for people in communities that are marginalised and disadvantaged.

Heather Fiskin

It shouldn’t be a barrier, it should be a tool. It should be something that we can use and, readily use it. But it’s not easy to do that.

There’s all kinds of reasons why disabled people don’t use the law. And as individuals, disabled people and their families are up against a huge weight of officials involved in the law. Which piece of discrimination do you activate here? Which piece of discrimination are you challenging here?

Because from when you wake up in the morning until when you go to bed, and everything you do in between, whether that’s employment, learning, being a family member, trying to access services, socialise, use transport, use general services like shops etc. There’s discrimination in all of that. Which bit do you challenge? It’s exhausting.

What’s more, it’s not level playing field in terms of how exhausted you are. Because I had one ex colleague and I remember her telling me that she had something like 24 different professionals involved in her life. She had a filing cabinet in her hall for all of these different types of professionals involved in her life.

Another example is if you need an adapted car and assuming you get Motability through benefits and support for that, you must use Motability’s insurance. It’s incredibly expensive. You want to get it repaired, you have to go to a Motability garage. And again, incredibly expensive. Which bit of discrimination are we talking about?

And then we’ve got the really serious stuff, like people being refused health care, people who don’t have their social care needs met. You have people who. Or young people who have an educational needs assessment. Assuming you can get that in the first place and the needs aren’t being provided for, which one are we going for here?

And then, of course, where do you find the lawyer? Where do you find the lawyer who can and understands and has the competence and the willingness to take on your case? Where do you find the legal aid to do it if you’re not on the passport benefits for it? Where do you find the capacity and the time and the energy?

And one of the other things, perhaps the biggest thing really, or one of them is the fear, the fear of losing social care support if you try to challenge that.

Now, of course, there are complaint systems and things that come. You don’t jump straight into the legal process. Start with the local complaint systems and you work your way through the different bodies that you have to go to. But that’s exhausting. And DPOs would want to support this and agencies, advocacy agencies, and advisors would want to support that. But these agencies aren’t always accessible because they’re not disabled people’s organisations. They can’t always provide all the support.

I do remember somebody years ago, to be fair, who pulled out of working with a lawyer because the lawyer said, it takes me an extra hour, to speak to you because of your impairments, therefore I’m going to charge you double. And I was thinking that’s a reasonable adjustment. Shouldn’t you as a lawyer understand the concept of reasonable adjustment in the Equality Act? So it was very strange.

But go back to the fear thing. I remember going to an event in, a town up north and we m were being told by the parent of a disabled child about how their child had been excluded from the school trip because there was no wheelchair accessible bus. So they stayed at school in the library while everybody else went for a fun day out. And the mother tried to complain about this, but the problem was that in such a small rural place, and I think it’s important to remember what it can be like living in a rural place. The headmistress lived in the same street and, she didn’t feel she could take serious action, whether that be legal or complaints processes, knowing that this person was her neighbour.

Jen Ang

Some sobering reminders from Heather there about the multiple barriers that disabled people can face in seeking justice.

Tressa agreed that the law can be both a tool and a barrier.

Tressa Burke

Again, I think that’s another brilliant question. So I think it’s both. so, for example, I mean, it’s, you know, the Disability Discrimination Act wasn’t the act that we thought we were going to get in 1995, but it was a result of campaigning of disabled people and our movement rising up. And I was at the very beginnings of my working life at that point and so I was kind of just watching and learning on the sidelines. Similarly, if you look at the United Nations Convention on the Rights of Disabled People, that was a pretty much international movement of disabled people, the kind of final piece of human rights so far at that point, because disabled people had just not been getting their rights through all of these pieces of social work legislation, health and social care legislation, or even the Disability Discrimination Act, at, that time. And so we had the UNCRPD, which I think was ratified in 2009 with the exclusion of education actually across the UK at that point.

But there have been moves and campaigns from disabled people and our movement, which tends to be led by disabled people led organisations, and that’s really Important because disabled people are so marginalised and so oppressed and without capacity or agency that you do needed the organisations of disabled people, led by disabled people to be able to support them, to be able to rise up and make demands and learn about their rights and then ask for those rights to be realised.

It should be a, tool, but it can be more of a barrier.

And what we find, for example, what I mean by that is if you look at situations of social care where somebody maybe threatens judicial review, the next thing the case is settled and so we don’t have case law established and you know, on a case by case basis that seems to be how local authorities resolve things where they think they might lose. So where it could be a tool, I mean it is a tool for that person, the threat of it is helping that individual, but it’s not changing the systemic inequalities or barriers that people are facing.

So I think it’s both. It’s both a barrier and a tool. A barrier because people can’t afford to access legal justice. They can’t afford, not just in financial terms and I would argue that is the biggest barrier, but actually in terms of capacity, emotional energy. You know being disabled and relying on services is a battle, your life is a battle and people don’t always have the energy for what’s required. But I would suggest from evidence and from working with thousands of people, they mainly don’t have the money. So it is both.

Jen Ang 

So what needs to be done basically to address that rightly put criticism?

Tressa Burke

I mean the obvious thing to me, so I wouldn’t know all the answers to this, but it seems to me that if people had better access to legal aid, I think that would really, really help. But I think there needs to be more interest and you know, almost promotion of people’s rights.

So that would come from our own movement from DPOs that we tell people about their rights, but there then needs to be the joining up with the lawyers who can help us access those rights and claim them and you know, rightfully challenge where inequalities arise, another barrier. So I’m not 100% sure of where this is at now, but certainly with the DP it always had to be individuals bringing the challenge rather than groups of people or organisations. And that was very off putting.

So there was a, very good example many years ago. I’m trying to think exactly when this would have been. It would have been I think the 2000s and we’d booked the city chambers for a conference for Glasgow Disability Alliance members, and they cancelled the booking and we met with them to debrief about it. and my colleague asked if she could record the meeting because she wasn’t able to take notes because of her impairment, and they foolishly agreed. And, you know, we have them on tape and we didn’t do anything with this, but we did have them on tape saying that the reason they’d cancelled the booking was because disability was in the title and essentially it was a blanket discrimination against the fact that it was Glasgow Disability Alliance. And what they were saying was. So they weren’t wholly wrong, what they were saying was that the City Chambers was not accessible in Glasgow to disabled people in terms of fire escape.

But however, on the same week that we were having that, they were hosting a party for the Older People’s Forum, or whatever it was, many of whom were disabled. So there was that juxtaposition at that time.

We took that to the Disability Rights Commission for a bit of advice, just to see where we stood. And they said, hands down, you will win that. And we said, what we win? And they said, you win maybe a couple of thousand pounds. So this is going right back, we’re going back in time to the early 2000s, what we decided to do, because we were at that point, this was before we had proper funding, we were all working in other places and we were a, loose committee becoming a board, I think, at that time.

And we decided instead to work with the council to try and help them make the chambers more accessible. And we actually thought that was better for disabled people than us. Having two grand towards GDA may have been helpful, but we wanted to change things rather than to just win the case. And we didn’t really fully understand that might have helped change things if we had won the case. But I think that was a barrier.

So, like, one of the things was that it would have had to be taken in one person’s name. So there’s things like that that can just create barriers where it exposes people, it makes them vulnerable, certainly when you’re talking about social care.

So, I raise this issue repeatedly because it’s such an important part of disabled people’s lives. We are definitely disproportionately dependent on services, health and social care and wider services, which means that people are very frightened about rocking the boat. So where they don’t feel that they’re getting their needs met, where they’re maybe being discriminated against, maybe feeling brutalised by the system, maybe feel that they’ve been treated badly by a social worker. They’re very frightened and reluctant to complain or to claim those rights, partly because they don’t have any evidence of people doing well in that kind of, complaint system, and partly just they’re frightened that it’s going to result in worse treatment and worse cuts.

So I think the law and the legal system has a role to play there about widening access to legal, advice and legal justice. But also disabled people feeling confident that if they do bring the challenge, it can actually go somewhere. One thing that my members, my very active members say regularly to me is they have to work hard on not giving up, because we tell them all the time about all the different treaties and conventions, about ICSECR, about the UNCRPD, the Human Rights Act, all the different pieces of legislation, and yet they still don’t have the rights.

And they are saying, quite rightly, what is the point of us having these rights if we can never have them realised or challenge them in any meaningful way? You know, I always think that justice is so obvious, that it should all be about social justice, but of course, legal justice isn’t about that, at all.

And it is varying degrees of how committed people are to social justice, but it’s a lot about the process rather than the morality of what is right or wrong. And I think disabled people get confused in that as well. They don’t understand why the law is not more on their side. So I think it must be a really complicated thing from the perspective of lawyers as well, and people in the justice system.

I think the other thing I hear is that the judiciary seem to not want to go too far to wade in a matters that are going to be a cost to the public purse. So we’ve seen really unhelpful cases where it’s been upheld that, it’s fine for a disabled person to sit in their own waist because it’s cheaper for the local authority to suggest a supercontinence pad than it is for them to have a social care worker, even where the person isn’t incontinent. And I know things have been contested and, you know, things have gone back and forward, but that kind of reluctance of the judiciary to get involved in what they may be considered to be political issues or issues for local authorities, for the public purse, that is not helpful, because where the law starts and stops, we are not really very clear about. As, disabled people.

Jen Ang

Tressa has pointed out  gaps in accessing justice arise not only where people lack financial and emotional resources to be litigants, but also where the justice system is designed to deliver narrow outcomes for individuals, but does not provide procedural routes to justice that would create such systemic change.

Heather adds to this picture, reminding us that the workings of law and justice need to be visible for people to want to engage their rights.

Heather Fiskin

And, sometimes I feel that case law is invisible. I think disabled people in the community would take much more strength in, considering taking action legally if they could see more case law, if they could hear from more people who have gone through the process. And I do completely understand why people don’t want to do that. They must be shattered by the end of it and they just want to get on with the last. I know that employment tribunals probably have quite a high caseload of discrimination cases in relation to disability, and that’s not the be all and end all. You know, there are other elements like social care, education, access to services, etc. And I think that we need more of the good ones and we need more visibility of the case law aim, and what that can do.

Jen Ang

Heather and Tressa have both spoken about the value of strategic litigation and also making visible the process of using the law and the courts to affect change as an important tool for campaigners working towards disability justice.

This feels like a good time to bring Louise Whitfield back into the conversation in order to pick up my conversation with her about the use of strategic litigation from a lawyer’s perspective.

We’re here today to help listeners understand how you and colleagues use strategic litigation to challenge the closure of the Independent Living Fund and to hear a little more about your role in leading that litigation in coordination with a wider campaign and your reflections over 10 years on, I think, from that series of significant legal challenges. So, to start with, can you please explain to us just how you got started with the campaign and what it was about?

Louise Whitfield

Thanks, Jen. I’m going to give you a little bit more background than you’ve actually asked for because I think it’s really important to understand how I came to the case and who else was involved with it. But it really dates back to, going out to lunch about 15 years ago with a brilliant disabled activist called Kevin Caulfield, who persuaded me to help him set up a legal network for deaf and disabled people’s organisations. He felt that there was a real disconnect between, between lawyers who were representing disabled people in the cases they ran for them and disabled people themselves.

And, once we got the network going, we ran a number of meetings looking at issues that were really relevant for disabled people and what the legal solutions might be. They were very well attended by disabled people and by lawyers, although that was quite a long time ago now. And I think that the network struggled during the lockdowns of the pandemic and that Kevin is keen to get the network going again.

But I think it was key to getting the case off the ground, as was the involvement of Inclusion London in the network and the case overall. And it was because we were having those network meetings that it was raised with me and a couple of other solicitors, that this was massive for disabled people, the closure of the Independent Living Fund, because it was so crucial to their ability to live independently, as the name suggests. And it seemed absolutely essential, obvious that we should look at whether a legal challenge would actually be possible.

Jen Ang

What were some of the challenges that you faced in running the legal case and coordinating with the campaign? Were there tricky moments?

Louise Whitfield

I think one of the key challenges in that case, and a lot of the cases I’ve done like this, are bringing everyone with you when you’ve got thousands of people directly affected. And me and the other two solicitors had, I think, six clients between us, all with different perspectives and different experiences and different opinions about what we should be saying in court and how we should be running the cases.

So that was one of the trickier moments. But I think it wasn’t as tricky as a lot of cases I’ve done, because everybody had the same fundamental goal in sight. And I felt that the claimants and the lawyers were really well supported by Inclusion London and that it was really crucial having a deaf and disabled people’s organisation involved in the litigation and really understanding the litigation and helping to steer us through any tricky moments.

Jen Ang

And just to make sure that our listeners understand what exactly was the change that you were seeking and that you managed to secure, through your litigation? And also in working with the campaign?

Louise Whitfield

It’s quite a complicated story, actually, in terms of what we tried to achieve and. And how we didn’t actually get there. But what we were hoping to do was to stop the government closing the Independent Living Fund, which was crucial additional funding for severely disabled people above and beyond what they were entitled to from their local authorities. So it made a massive difference to thousands of people’s lives in terms of their ability to live independently, and we were trying to stop the government closing it.

What made the case particularly complicated was that the way the decision was taken and the success of the challenge meant that the government could simply take the decision again and decide lawfully to close the fund anyway. So we had one of those sort of, not quite a pyrrhic victory, but it was a victory that only gave a bit of respite for a short period of time. And although we brought a second challenge, that was unsuccessful in challenging the second decision to close the Independent Living Fund. So it did still close, but we bought a bit of time for people. There were some sort of related wins, some good impacts that I’m happy to share, if that would be useful, that weren’t about a, legal change and weren’t about winning the case.

But what was particularly interesting, and it loops back round to Inclusion London’s involvement as well, it is that a couple of years after the case, I was at a roundtable run by some legal researchers looking at strategic litigation. And I was there, along with people doing the similar kind of work to me and another really brilliant disabled activist called Svetlana Kotova from Inclusion London. And when I was talking about the ILF case and I said, well, we won in the Court of Appeal, but then we lost the second JR, so it didn’t make any difference. She actually disagreed.

She felt the case had made a huge difference for a number of reasons. One was that we got the court to agree with us that the government hadn’t listened to disabled people properly, that they hadn’t looked at the really significant impact on disabled people. And that was a massive achievement in itself. And I think that it also, Svetlana felt strongly that we got a level of publicity that had never really been experienced by disabled people before. We were on the 10 o’ clock news on the BBC that night, which had never really happened.

And I think it was felt that those things happening in that context, although they fell a long way short of what we were actually trying to achieve in terms of keeping the fund open, it definitely brought things to the fore and we got real engagement from the court. And I’ve actually got a quote from one of the judges, if that’s helpful, because I think this really encapsulated how we were able to persuade the court that something had gone really wrong.

And Lord Justice Elias said, in my opinion, neither the Equality Impact assessment nor the document setting out in response to the consultations, both published on the same day as the decision was made, identifies in sufficiently unambiguous, terms the inevitable and considerable adverse effect which the closure of the fund will have, particularly on those who will, as a consequence, lose the ability to live independently.

And that felt, like a very strong vindication of the claimants. Everybody who’d been campaigning on the issue. And exactly what the government had missed, what was awful about the follow up decision where the government decided to close the Independent Living Fund anyway and we lost the second JR was that the government didn’t care that that was what was going to happen.

And we had done our best and we tried really hard and obviously the wider campaign tried really hard. But when I was rereading the judgments, I was really struck by the fact that the judge in the second Judicial Review did not mention any of the claimants by name at all. So there was almost a sort of, I felt, quite stark contrast between the level of engagement of the judges in the first Judicial Review at the Court of Appeals stage and that judge in the second one. And that’s all disabled people want is to be heard and understood and, their opinions to be valued. And that was what the government had got wrong here.

Jen Ang

Gosh, as you describe it, that is such a roller coaster of developments, if you like, through the history of this case. But something that you raised just struck me as, very true to my own experience. And it’s this point that sometimes as a lawyer or in technical terms you can see it that you’ve lost the case or you’ve lost the outcome that you were looking to achieve.

But in many ways, supporting people in communities to sort of to seek a hearing or to seek justice or to raise an issue in the public discourse is a kind of success. As you say, Svetlana has pointed out, it’s a kind of win. I wonder, again, thinking about this, if we were now over 10 years on to see a set of challenges like this again today. And I actually, unfortunately, it’s not entirely hypothetical. Right. Because I certainly know that here in Scotland, I have, recently have been consulted on similar threats to funding for disabled people to lead dignified lives. Would you run this the same as you did? And do you think the outcome would be the same or different? And there are two kind of very different questions. I know, but just 10 years on, you know, what are your reflections about a case like this coming up again?

Louise Whitfield

I think those are really interesting questions that I’ve given quite a bit of thought to because I think one of the issues in the case was the fact that we were challenging the closure of the fund to current recipients. It had already been closed to new applicants like the previous year, and nobody had challenged that decision. And that made the case more difficult presentationally. And a lot of the government’s defence was we’re just trying to make this fair for everybody. And that caused us problems within the case.

If I had my time again, I would go back and challenge that first decision that closed the fund to new applicants, because that was such a fundamental decision. And I think if, you know, if the legal network had been up and running at that point, maybe we would have caught that in time.

But I still think it’s such a shame and it’s so disappointing in so many ways that a legal challenge wasn’t brought in relation to that first decision to close the fund to new applicants.

I think the second thing about what, what I would do differently or what arguments I would run is I think I would actually run, you know, convention rights arguments. I would say this has to be a breach of Article 8, this has to be a breach of Article 14 here.

Jen Ang

In thinking about how she might bring this case today, 10 years on, Louise is speaking about including arguments raising a potential breach of human rights under articles 8 and 14 of the European Convention on Human Human rights or the ECHR. Article 8 of the ECHR guarantees our right to a private and family life and Article 14 is the prohibition against the discrimination in the enjoyment of any of the rights guaranteed in the ECHR.

Taken together, a human rights based argument would make the case the government’s decision was an unlawfully disproportionately discriminatory one in preventing disabled people from enjoying a private and family life of, of the same quality as people who are not disabled. 

Louise continues, explaining the value of making bold arguments.

Louise Whitfield 

And I think that although it’s very difficult to also run private law equality arguments, saying this treats disabled people less favourably than non disabled people, I think there is something about the way we litigate these cases where we are not bold enough to say to the court, you are creating a situation where a significant number of people will not be able to live independently that cannot be lawful. Would be. I mean, that’s a pretty bold submission. But you get the point that challenges around things like the equality duty or the failure to consult is just about the process. Whereas I think I would want to try a quite challenging legal case that basically said you cannot take this level of support away from people. That’s a breach of human rights.

Jen Ang

I love that and I’d love to see you bring a challenge like that. What more needs to be done to secure justice for the people you fought for here? do you think justice has been done?

Louise Whitfield

I think there is so much more to be done with and for disabled people to secure justice for them, it’s almost impossible to know where to start. You know, the right to independent living being a reality would be a good starting point, you know, to actually acknowledge that lots of disabled people can’t live independently and they should have a right to do so. I think the Government’s new welfare, bill just fills me with despair in terms of the impact on disabled people. And again, kind of carve outs that protect in inverted commas current recipients of benefits, but leave out in the cold people who might make claims in the future. I think it is. I just cannot, I cannot see how that is fair or just in any way. and there’s a range of issues that make it so clear that disabled people don’t have equality in the uk.

Jen Ang

With that reflection from Louise, let’s return now to Heather and Tressa. I asked them both, if disabled people are still a long way from achieving equality in the uk, what does justice look like for you?

Heather Fiskin

Well, I suppose that goes to justice achieved justice in practise. When it’s happening, we wouldn’t have a need for justice because there would be no injustice. So I’m not a lawyer, so that’s the kind of thing I will say.

So justice would look like the progressive and the forward fronting legislation, like, do not, you know, you must make reasonable adjustments, you must do your public sector equality duty and progressively work towards equality. All these things would be happening. There wouldn’t be a case of public authorities going, oh, I have to do this report. And I wrote this down to say this. And I will say, I always remember when I was working in the Disability Rights Commission, when the first disability quality duty reports came out from local authorities, we could actually see where they had cut and pasted off each other. No thought had been put into it whatsoever. It would be funny if it wasn’t so bad.

So justice would look like ready availability of support, a willingness to see the law as, ah, a route that is accessible, attainable, appropriate, when it is, and something that’s for you, it’s for everybody.

Tressa Burke

Tressa agrees, adding, so social justice for disabled people, and if they were having all their legal rights realised and fulfilled, would be about having access to a meaningful life and a life of purpose and a life of choices.

It would be about participation. It would be about being included in their communities and their families in wider society. It would be about having a job, a job that pays well. A job, a job where the employer knows what access to work is, the scheme itself, the programme of support, but also what access in the workplace means. It would be about disabled people not living in abject and deep and long term poverty. It would be about disabled people, you know, accessing the health and social care services that they need. So, you know, in terms of social justice, it would be all of those things.

Fairness, freedom, having dignity, having choices, and the same choices as non disabled people take for granted. So when we are talking about choices like that, sometimes disabled people aren’t able to choose when they get up, what they wear, if they wear anything, when they have a shower, if they have a shower. We’re frequently told about disabled people being told that they’re only entitled to so many showers a week or a month. These are the types of, of, you know, breaches to human rights that we’re talking about.

United Nations declared disabled people’s lives a human catastrophe in 2017 on the back of what had happened after the financial collapse and then austerity imposed by the government at that time and the reverberations to the settlements to the local devolved administrations and in turn their local authorities. So it was about benefits, but it was also about cuts to services.

In 2024, they reviewed the situation and there had been regressions. Rather than things getting better, there had been regressions. They saw no advancement of rights, they saw nothing but regressions. And further, UN ambassadors and commentators have said that there should be more money invested in social care, there should be more money invested into Social Security.

So local authorities are, ah, struggling for sure and local government funding is definitely an issue, but it is about choices and disability is a political and a social and economic choice and disabled people need to be prioritised. So I know that’s a long winded answer, but these are the ways that disabled people’s lives would look if they were, you know, having the rights and their freedoms observed and realised and we would have access to that redress, which at this point in time we just don’t have.

Jen Ang

And finally, I asked all three of our guests to share some advice for our listeners. Advice that perhaps they would give to themselves as a young activist or lawyer or to someone who wants to be them when they grow up.

Louise Whitfield

That’s such an interesting question. I would say if you’re a lawyer, find an area you really care about and listen to your clients. I think that what often goes wrong is people are practising in areas sometimes for the wrong reasons, sometimes it’s not something that really, they are really, really committed to. And I think I definitely felt a degree of, increased commitment when I was representing disabled people because I felt the situation was so unjust. I was so compelled to try to assist them.

But I learned so much from my disabled clients. I think it was really interesting that it gave me genuine insights into their lives that I would have had no experience of in any other setting. And it made me acutely aware of things like how do you set up joint in person meetings for a legal network when your own office is not fully accessible, then what do you do? And how you have to push and push and push on all those issues across the board to be able to represent people properly.

So I think, it’s a combination of finding an area of law that’s really important to you personally, but also really listening to your clients and the people directly affected.

Jen Ang

Heather had this to say:

Heather Fiskin

Just keep doing it, keep doing it. If you are in the right, then be in the right, own it, own your space and collectivise with other people. The strength in collectivising, not just within your own community, but with allied communities.

And Jen, you and I go back some way and I’ve always wanted to do more work in our organisation around justice, but like many DPOs, we don’t have the funding. I think that the digital world has really opened up activism in a low cost kind of way. But just keep going for it and collectivise. Use your allies, give to your allies as well. You never know when you’re going to need them. and just keep going. If you’re in the right, then you’re on the right path, basically.

Jen Ang

And Tressa agrees. Also leaning into the power of collectivising allyship and peer support.

Tressa Burke

Oh, my goodness, that’s a hard question. run a mile, don’t do it. No, I think, know that you can’t do everything. Do what you can and don’t do it alone. Build allies, build friends, build support. I think, really, I feel, I feel as though I’m a builder. And, you can see that because GDA has almost 6,000 members now. and it’s not just me, it’s never been just me. It’s always been a collective cause.

And I think that holding onto that peer support is so important. It’s important to our members, but it’s also important to Chief Execs supporting each other. To me, with my team supporting each other, you know, we don’t get dissuaded from the cause and from the mission and we support each other doing it.

But the other, I suppose, piece of advice would be to myself, don’t get too upset when you know you’re going to get knocked down. But, just get back up, just keep getting back up. But you need support to do that, and that’s why the support is so important, because you can keep going if you’ve got the support, but if you’re doing it all alone or if you feel that you’re taking it all on your own, that’s too much. So but yeah, keep going. It’s worth it. It’s worth it because you’re helping people change their lives and have a better life.

Jen Ang

And that’s a wrap! Thank you our lovely listeners for joining us for another episode of the Lawmanity Podcast. 

If you wanted to learn more about some of the campaigns that Heather Tressa and Louise have mentioned, will put those in the show notes. And for those of you legal beagles out there, we’ll also add some details about the legal challenge I discussed with Louise, as well as some ways in which you can take action to support current campaigns for disability justice. 

Next week, join us for a one to one interview with Satwat Rehman, Chief Executive of One Parent Family Scotland or OPFS, We speak to her about the challenges of using the law to secure justice for families in poverty in including single parents, as well as the importance of movements rooted in community and how solutions may require lawyers and communities to work together for change. If you love today’s episode, please do hit the like and subscribe buttons and share our episodes with friends and colleagues who might also enjoy learning a little bit more about how the law really works in practise and how it can be used to make the world a better, brighter place. 

The Lawmanity podcast is co produced by me, your host Jen Ang and the brilliant and talented Natalia Uribe. Shout out to Halina Rafai for mentoring us through our first year of this incredible project and thanks also to Amanda Ameshi on graphics and socials. The music you’ve been listening to is Always on the Move by Musicians in Exile, a Glasgow based music project led by people seeking refuge in Scotland. 

Thanks so much for tuning in today. We hope you enjoyed listening and stay. See you next time.