7 May 2013

Corporates beware

Update, September 2013: A full analysis of the case, prepared by Oliver Lewis, has been published in the September 2013 edition of the  European Human Rights Law Review. You can read a copy of the case comment here

Blind people can’t access all ATMs in Hungary. This latest case at the UN is a slap in the face for wealthy companies who can’t be bothered to make their services accessible. And it’s a wake-up call for governments that let companies discriminate.

The United Nations Committee on the Rights of Persons with Disabilities has come out with its second ever “view” (which means judgment) under the Optional Protocol to the UN Convention on the Rights of Persons with Disabilities (CRPD) which allows individuals to submit a communication (which means take a case) to the Committee if they think that one of their CRPD rights has been violated, and if they have failed to find a remedy in the justice system in their country.

The case is called Nyusti and Takács v. Hungary and does not concern a person with mental health or intellectual disabilities. Why am I writing about it? Because it’s interesting in five ways which all affect people with any disability in any country which has ratified the CRPD. These reasons are (1) The State must take action to prevent non-state actors from discriminating; (2) Accessibility is justiciable; (3) Judges must apply international human rights law; (4) Indirect discrimination need not be intended; and – sadly – (5) Lawyers stupidly invoke the safety of disabled people to justify discrimination. 



It’s not our fault you can’t see the buttons!

The facts go as follows. The two applicants are called Szilvia Nyusti and Péter Takács who are both are Hungarians and clients of a bank called OTP, Nyusti since 1996 and Takács since 2003. The contract with the bank entitles them to a bank card so they can take money out from ATMs which stands for automated teller machines (I had to Google that while writing this blog piece), otherwise known as “bankomats” or “holes-in-the-wall”. These two people wanted to use the bank cards to withdraw their money across OTP’s ATMs but cannot do so, because they both have visual impairments and many of the machines lack braille dots on the keypad or voice prompts.

In 2007 Nyusti and Takács sued OTP in a court complaining about the inaccessible ATMs. They won. The court held that OTP had violated their right to equal treatment and human dignity, an important constitutional principle in Hungary. The court found that the two of them had suffered direct discrimination because, the court reasoned, as people with visual impairments they could not use the services provided by the ATMs to the same extent as other clients, despite paying the same fees (we will return to this point in two minutes). The court ordered OTP to ensure that there is one accessible ATM in each capitals of all Hungarian counties and one in each district in Budapest and – a nice touch! – a further four in districts where the applicants lived.

This was not good enough for Nyusti and Takács, because why should they be forced to go to the specific ATM. They are customers of OTP and should be able to use any of their ATMs. (This argument reminded me of the defence which the Indian Railways deployed in a case when they were being sued for having a miniscule number of stations with toilets accessible for disabled people. Lawyers for the Indian Railways argued in court that disabled passengers should only use those stations which have accessible toilets: why do they want access to all of the stations?!).

So Nyusti and Takács complained to the appeal court, having calculated that it would cost OTP 0.12% of its (pre-global-financial-crisis) annual net income to retrofit all the ATMs. The appeal court dismissed the case, essentially saying that Nyusti and Takács should be happy with the outcome of the lower court. The appeal court did however adjust the lower court’s direct discrimination finding (one minute to go).

The applicants went to the supreme court which said roughly the same thing as the appeal court, adding somewhat ludicrously that Nyusti and Takács had freely entered into a contract and by doing so had agreed to their disadvantaged situation through implied conduct. Having exhausted remedies in the Hungarian courts, Nyusti and Takács sent their case to the CRPD Committee for adjudication. The CRPD Committee’s judgment is interesting for five reasons.

OTP ATM in Budapest. No Braille.


1. The State must take action to prevent non-state actors from discriminating

Article 4 of the CRPD sets out general state obligations. These are the things which the State must do in order to implement the treaty. Paragraph (e) of this provision sets out the duty on the State to “take all appropriate measures” (not just an action plan, not a few reasonable steps, not several measures, but ALL appropriate ones!) “to eliminate discrimination on the basis of disability by any person, organization or private enterprise”. OTP is a company so is a “private enterprise” for the purposes of the CRPD.

Under its obligation to create an accessible environment, the State has to “develop, promulgate and monitor the implementation of minimum standards and guidelines for the accessibility of facilities and services open or provided to the public” (Article 9(2)(a)). Note that this includes private companies whose facilities and services are open and provided to the public (it doesn’t merely mean public services like a government-run hospital) which clearly includes banking, and more specifically, ATM machines. The CRPD also says that States need to make sure that companies “take into account all aspects of accessibility for persons with disabilities” (Article 9(2)(b)).

In its judgment the CRPD Committee notes that the Hungarian government has already acknowledged that it needs to ensure that all ATMs accessible to everyone with disabilities and I won’t rehearse the long list of things which the Hungarian government says it is doing – you can read those at paragraph 9.5 of the judgment. The CRPD Committee responds by saying that despite these impressive-sounding promises, the fact is that Nyusti, Takács and people similarly situated still don’t have access to all ATMs operated by OTP. On this basis it finds the Hungarian state in violation of its obligations under Article 9(2)(b) of the CRPD. This is really fantastic news. Using an ATM is an everyday thing which most of us take for granted. It’s only when you stop and think about the same thing for a person with disability that you realise the hoops which people have to jump through to get the same thing.


2. Accessibility is justiciable

Nyusti and Takács argued their case under both Article 5 of the CRPD (which sets out how failure to provide reasonable accommodation constitutes discrimination which is prohibited) and Article 9 of the CRPD (which sets out the State’s obligations on accessibility).

The CRPD Committee decided for an unknown reason to look at the case only under Article 9. This provision explains that accessibility is intended to “enable persons with disabilities to live independently and participate fully in all aspects of life” which is a nudge to the wording of Article 19 of the CRPD where the substantive right to live in the community is set out. Article 9 then sets out many different things which the State must do to fulfil its accessibility duties which, in turn, will enable persons with disabilities to live independently and participate fully in all aspects of life.

Similarly to its sister Article 8 on awareness-raising, Article 9 does not set out a right. So it is interesting that the Committee has ensured that the provision is justiciable, that is to say, that people can claim to be a victim of the State’s failure to comply with an obligation. It would have been interesting to read some reasoning on this legal point, but the Committee offers none.

Perhaps the Committee inferred a right from Article 9 because of the provision’s “on an equal basis with others” language, which perhaps gives rise to a claim in a way which awareness-raising does not. It’s legally quite sloppy of the Committee to have skipped some important analytical steps. How did it really get from obligation to right? Why did it mesh reasonable accommodation – usually thought of as adjustments for particular individuals, the failure of which is discrimination – and accessibility which is about making the world generally easier for disabled people to access? Why did it not analyse the case under Article 5 on discrimination? I hope legal academics will help unpick these conundrums soon.

Accessible wine label


3. Judges must apply international human rights law

The CRPD Committee “recommends” to the government (unfortunately UN treaty bodies lack powers to demand governments to do things) to adopt minimum standards for banking accessibility, and to put in place some sort of legal framework “with concrete, enforceable and time-bound benchmarks for monitoring and assessing the gradual modification and adjustment by private financial institutions of previously inaccessible banking services provided by them into accessible ones.” It further recommends that the government ensure that all new ATMs and other types of banking services “are fully accessible for persons with disabilities”.

Disappointed with the narrow way in which the Hungarian courts dealt with this case, the CRPD Committee recommends that the government provide regular training to judges “on the scope of the Convention and its Optional Protocol […] in order for them to adjudicate cases in a disability-sensitive manner”. In a similar way to how it handled its one other case which it has decided on the merits from December 2010 (HM v. Sweden), the Committee sensibly calls on the government to ensure that the law and how judges apply the law does not result in discrimination. What’s important here to underline is that the Committee is telling the government to make sure that even if law has no discriminatory intention (as in the ATM case), it’s up to judges to make sure that it does not have the effect of discriminating.

I was intrigued to read what the Committee says Hungary must do in terms of controlling its judges. For some people this will edge too close to unsettling the sacred separation of powers between the executive (government), the parliament, and the judiciary. Whether the Committee is overstepping its remit by telling the government how to tell its judges to do their job, going by recent non-democratic interference in the operation of the judiciary, the Hungarian government in particular should have no problem in telling judges what to do.


4. Indirect discrimination need not be intended 

The lower court found that the two applicants had suffered direct discrimination. You can read the Hungarian Equal Treatment Act here, and the relevant sections are Article 8 and 9, which I find very confusing. But really this case is about indirect discrimination. The UN Committee on Economic, Social and Cultural Rights has clarified that indirect discrimination “refers to laws, policies or practices which appear neutral at face value, but have a disproportionate impact on the exercise of Covenant rights as distinguished by prohibited grounds of discrimination” (General comment 20, paragraph 10).

The CRPD does not explicitly distinguish between direct and indirect discrimination, but its definition of discrimination includes the indirect type by stating that the effect of the differential treatment can constitute discrimination. A lot of disability-based discrimination (outside the mental health) field is indirect. Notoriously, indirect discrimination need not be intended (“We’d love to give you a job and you have to climb these stairs to get into the office, but and as a wheelchair user you can’t, so we’re so sorry we are not going to offer you the job.”). Indirect discrimination is often about physical things (like ATMs) and sometimes about informational things (like a leaflet at the doctor’s if you’re blind) which you can’t access/understand because of your disability, and the physical or informational thing is not adjusted to enable you to access it.

In the Nyusti and Takács case the appeal court (correctly) corrected the lower court, and found that the two applicants had suffered indirect discrimination. Let’s be clear about the facts. The bank did not treat the applicants differently. They did not say: You are blind and therefore we are allowing/disallowing you to use some particular ATMs machine which we do/do not allow our sighted clients to use. But rather, the bank treated them like: You are a customer and you are welcome to use any of our ATMs like any of our customers. Oh can’t you use the ATMs? We’re really sorry, but you can’t blame us that you are blind!)


5. Lawyers stupidly invoke the safety of disabled people to justify discrimination

One of the ways OTP defended the litigation in the Hungarian courts was tragi-comic. They said that accessible ATMs pose a banking security risk for blind people “due to their special situation”, whatever that means. Before the appeal court, OTP lawyers said that retrofitting the ATMs would “motivate blind or visually impaired persons to use the ATMs without help” (isn’t this the very point of making ATMs accessible?) “which would endanger not only the security of property but also the personal safety of blind or visually impaired clients of the OTP”.

Gosh, my heart goes out to OTP’s lawyers who wrote that pathetic argument. I can imagine them writing late into the night, billing OTP by the hour, developing their polemic defence: “Blind people should stay at home, tucked up nice and safe and sound, cooked decent meals by caring people. Wearing sensible shoes, they should be taken by softly padded vehicle to their day-care centre and back again. Our policy of ensuring that blind people cannot access the ATM is actually in their best interests, and has the effect of preventing them from hurting themselves. They could be robbed which would result in them becoming homeless. They could be killed. They could even chip their fingernails as they type on the braille keyboard. Our bank has a policy which flows from a moral duty to protect these vulnerable people from these terrible risks by making sure that our ATMs are unusable by them…”

It’s good to read a judgment which exposes such paternalistic claptrap.


photo credit: thinkpanama via photopin cc
photo credit: adactio via photopin cc