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Bad vibrations - persuading the courts to recognise new illnesses
United Kingdom Created: 12 Nov 2020
Please meet James - He first started feeling unwell in 1988 when a transmitting mast five metres from his home - which previously had only an aerial at the top as a relay station - had additional capacity added to it that year.

He started to have headaches and migraines which abated within 30 minutes of leaving the house and vicinity of the mast. When several mobile systems were added to the mast, headaches and brain fog were accompanied by burning across his shoulders and back, and a pricking tingling sensation in his body - like being electrocuted.

His symptoms became worse, and his wife also suffered, when Tetra transmitters were added to the mast: stabbing pains in the shoulders, vertigo, blurred vision, pressure band around the head, headaches, cramping of hands, confusion and lack of concentration, disorientation, dizziness, dry cough, hot spots on the spine, to name just a few from a long list.

James had to take action to protect himself and his family - but he soon hit a block when he began challenging the mobile phone companies. Despite being diagnosed by his GP with a form of radiation sickness known as electro-hypersensitivity (EHS), this crippling condition is not recognised in law as a disability, which the mobile phone operators took as carte blanche to ignore his complaint.

This is a classic legal conundrum when new medical conditions emerge as our world changes. How do you go about getting a new (especially controversial) illness recognised in law and therefore protectable under discrimination laws?

This hypersensitivity to the electromagnetic radiation (EMR) given off by masts, antennae and other mobile communication systems affects humans to varying extents, much like an allergy - some people suffer badly and others less so. These kinds of symptoms are experienced severely by at least 800,000 people in the UK and less severely by at least two million people who are exposed to EMR.

Over many years, James wrote to every public authority representative he could think of in the UK and the EU, including the Prime Minister. No one listened and no one helped. Many had no understanding of his condition, not even considering it as "new" - scientists involved said there was no science to support his condition.

So, what can be done?

One route is to issue judicial review proceedings against relevant public authorities for breach of their public sector equality duty (PSED) under the Equality Act 2010. This is what Phillip Watts, a sufferer of EHS, did when he brought a judicial review against the secretaries of state for the Department of Digital, Culture, Media and Sport and the Ministry of Housing, Communities and Local Government.

He argues that the contravened the PSED when they announced changes to planning permission requirements for the roll-out of 5G masts, antennae and equipment in July 2020. Under them, existing masts can be strengthened without prior approval.

Public authorities have a duty to eliminate differences between disabled persons (within the meaning of the Act) and non-disabled persons. In addition, when making strategic decisions such as deciding priorities and setting objectives, they must consider how their decisions might help to reduce the inequalities associated with socio-economic disadvantage which includes health inequalities.

Is James disabled under the Equality Act? Section 6(1) defines a disability as a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Schedule 1 extends that to impairments which are likely to last for at least 12 months or for the rest of the life of the relevant person. In the case of James, his condition is lifelong.

Government guidance helpfully provides that "the fact that an impairment may have a less substantial effect in certain environments does not necessarily prevent it having an overall substantial adverse effect on day-to-day activities".

It lists factors which are reasonable to regard as having a substantial adverse effect on normal day-to-day activities as including "difficulty entering or staying in environments that the person perceives as strange or frightening" this would seem to apply to James's home and his neighbourhood.

The PSED was summarised by Lord Boyd in the recent Scottish case of McHattie v South Ayrshire Council [2020] CSOH 4, identifying three important aspects:

- The duty must be fulfilled before the policy in question is enacted;

- The duty must be exercised in substance with "rigour and an open mind"; it is not a matter of "ticking boxes"; and

- The duty is continuing: it does not end with the completion of the EIA and due regard must be had as policy evolves and is implemented.

Lord Boyd noted that the duties under section 149 do not simply concern the prevention of discrimination but also the promotion of policies which help "eliminate differences between the protected group and those who do not share that protection".

He stated that, in particular, any scoping exercise should not be just a "tick-box exercise completed after the decision has been taken".

In Phillip Watts' case, it is ultimately up to the High Court to decide whether his symptoms amount to a disability under the Act and the PSED has been contravened. In relation to new kinds of symptoms, once medical evidence can be produced to confirm the impact of the symptoms, if the substance of the Act can be made out, individuals can be protected by it.

In James's case, it would seem that public authority representatives failed to consider how to eliminate differences between those suffering from EHS and those not. They have ignored him and marginalised the pain and suffering which he and many others experience every day.

The Watts case will shine a light on these practices and hopefully create a pathway to reverse the rejection of the pain and suffering of those who experience EHS.

James is a real case whose identity has been changed.
Click here to view the source article.
Source: Litigation Futures, Jessica Learmond-Criqui, 12 Nov 2020

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