The Administrative Court recently quashed a council’s decision to revoke a London soup kitchen’s licence to operate in an authority-owned car park (Blake and others v London Borough of Waltham Forest  EWHC 1027). The court found that the council had breached its public sector equality duty (PSED) in section 149 of the Equality Act 2010.
In giving judgment on 7 April 2014, Mrs Justice Simler stressed the ‘need for clear well-informed decision-making when assessing potentially grave adverse impacts on some of the most vulnerable members of society… in the current economic climate’.
Christian Kitchen is a registered charity whose trustees organise a soup kitchen which has provided meals and hot drinks to homeless, vulnerable people in Walthamstow for over 25 years. The facility opens for one hour, seven nights a week all year round. Although the council had not funded the kitchen for many years, it nevertheless supported the project by allowing the charity to use its Mission Grove car park for over 20 years.
However, alleged anti-social behaviour associated with the soup kitchen users (contested as to its extent), together with substantial regeneration works in the area, led the council to conclude that the licence should be terminated.
It was accepted (subject to the PSED which was found to be engaged) that the council was not providing the soup kitchen service, was under no obligation to facilitate its continuance and was entitled to terminate the licence. As the judge noted, although under no obligation to do so, the council nevertheless offered an alternative facility for the soup kitchen (known as ‘the lay-by at Crooked Billet’). However, this was rejected by the charity on grounds of safety and accessibility.
The claimants were Christian Kitchen and two of its users. They contended that the council’s decision to revoke the Mission Grove licence meant the closure of the soup kitchen since no alternative site had been identified. In the claimants’ view, the council should have considered the likely impact of its decision on the vulnerable, disabled and elderly soup kitchen users rather than ‘… on the wholly unrealistic basis that soup kitchen users would suffer little or no detriment because the soup kitchen could relocate to the lay-by at Crooked Billet’. The claimants argued that since there was no proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, there was a failure to discharge the PSED and the decision was consequently unlawful.
The council denied that it had acted unlawfully, maintaining that it had complied with the PSED. The council report leading to the revocation of the Mission Grove licence had recommended that Christian Kitchen cease to operate from the site in question ‘in order to address concerns of the police and the negative and detrimental impact some users of the service had on local residents and businesses’.
An ‘Equality Analysis’ (among other things) set out the purpose of the PSED and gave summary guidance to officers and decision-makers on compliance with the PSED including (as the judge noted) that the Equality Analysis ‘must be evidence-based and accurate – negative impacts must be fully and frankly identified so the decision-maker can fully consider their impact; and conscious, open-minded consideration must be given to the impact of the duty on the decision’.
The analysis concluded that ‘…while the relocation may disproportionately impact certain groups, specifically service users from the eastern European communities, and potentially older and disabled service users who may be homeless/unemployed and on low incomes, there is no evidence to suggest that long-term the relocation will affect their ability to access the soup kitchen. Further it will benefit all users of the high street area, including those with protected equality characteristics, by addressing related antisocial and violent behaviour which is currently having an adverse impact upon them’.
The PSED in section 149 of the Equality Act 2010 provides that a public authority must, in the exercise of its functions, have due regard to the need (a) to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the act; (b) to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it and (c) to foster good relations between persons who share a relevant protected characteristic and persons who do not share it. Per section 149(7) the relevant protected characteristics are: age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
As Simler J indicated, the law surrounding the PSED and the ‘due regard’ obligation is now well established and the following (among other principles) have been accepted:
- Per the leading case of Brown v Secretary of State for Work and Pensions  EWHC 3158 (Admin), whether a decision-maker has had ‘due regard’ is a question of substance, not form or box ticking.
- The duty must be fulfilled before and at the time a particular policy is being considered and not afterwards (Kaur & Shah v London Borough of Ealing  EWHC (Admin)).
- There must be an analysis of the material ‘with the specific statutory consideration in mind’. However, this is fact – and context – sensitive.
- In considering the impact, the authority must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated. A duty of enquiry may be necessary.
- However, per Elias LJ in Hurley & Moore v Secretary of State for BIS  EWHC 201 (Admin) while there needs to be proper and conscientious focus on the statutory criteria, ultimately it is for the decision-maker to decide what weight should be given to the equality implications in the light of all relevant factors.
- A sense of proportionality and reality is required – Branwood v Rochdale Metropolitan Borough Council  EWHC 1024 (Admin).
The court noted that while, in relation to each protected characteristic, the Equality Analysis identifies the proposed change of location as having a potential adverse impact on the particular group, it was silent on closure of the soup kitchen altogether. Similarly, although the mitigating measures proposed in each case are all to do with accessing the proposed new location for the soup kitchen; there was ‘no consideration whatever of mitigation measures addressed at reducing or avoiding the impact of closure altogether’.
In the court’s view, the council ‘should have considered the likely impact… on the vulnerable users of the soup kitchen on the basis that the soup kitchen would close rather than on the wholly unrealistic basis that they would suffer little or no detriment because the kitchen could relocate’.
In the circumstances, Simler J found that the PSED had not been complied with. The risk of closure was not considered and weighed in the balance. So, although an impact assessment was carried out, it did not in the circumstances provide the analysis and information necessary to discharge the duty to have focused due regard.
The PSED is a potential minefield for public authorities, particularly those needing to make budget cuts to balance the books. However, as Simler J acknowledged, the PSED ‘is of course not concerned with the lawfulness or adequacy of the solution proposed or adopted, but with the lawfulness of the process’.
In the court’s view the failure was at a basic level. The council had ‘never directed its mind to what mitigating steps could be taken to lessen the impact of closure’. However, given that the council had no duty to provide the facility in question, the scope of the PSED in these circumstances may be revisited in the event of any appeal by the council.
Dr Nicholas Dobson is a consultant at Freeth Cartwright