R Mohinder Pal v The London Borough of Ealing
| Jurisdiction | England & Wales |
| Judge | McKenna,JUDGE |
| Judgment Date | 20 July 2018 |
| Neutral Citation | [2018] EWHC 2154 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/14/2018 |
| Date | 20 July 2018 |
[2018] EWHC 2154 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
HIS HONOUR JUDGE McKenna
(Sitting as a Judge of the High Court)
CO/14/2018
and
APPEARANCES
Mr M Westgate QC and Mr D Lawson (instructed by Lambeth Law Centre) appeared on behalf of the Applicant.
Mr W Beglan (instructed by the London Borough of Ealing) appeared on behalf of the Respondent.
THE INTERESTED PARTY did not attend and were not represented.
Introduction
Mohinder Pal, the claimant, is a 73 year-old long time user of Southall Town Hall, (“the Building”). Mr Pal, by this claim, seeks to challenge the decision of the Defendant, the London Borough of Ealing, by its Cabinet on 12 September 2017 (“the Decision”) to dispose of its interest in the Building to the Interested Party, the Vishwa Hindu Kendra Temple, (“VHK”).
VHK is a Hindu temple located in the building behind the rear car park. Although named as an interested party, VHK has not taken any active part in this claim.
The Building is a Grade 2 listed building, located on Southall High Street. It provides a range of community services and operates as an enterprise centre with some twenty-six office units, some of which are operated by charities and community groups and some by small businesses.
It is fair to say that the Building is heavily used by Southall residents from black minority and refugee groups often with low incomes and multiple disadvantage. Current tenants include Helplink, a charity which provides guidance and support to vulnerable sections of ethnic minority communities, particularly those recently arrived from South Asia and has about 800 service users per year and aims to integrate users into mainstream society; Southall Community Alliance, (“SCA”,) an umbrella organisation of over a hundred mainly small or new community groups in Southall which provides capacity building and office services and Migrant Advisory and Advocacy Service, (“MAAS”,) which is a charity providing legal help to disadvantaged communities in Southall and works primarily on immigration and also other legal areas, including employment, housing, education debt and welfare benefit.
The claim was considered on the papers by Michael Kent QC on 7 March of this year. He refused permission for the detailed reasons set out in his order.
The Claimant renewed his application for permission and, on 18 April, Upper Tribunal Judge Markus QC granted permission on two of the three grounds originally put forward. They are (1) a failure to have regard to material circumstances identified during the process leading up to the decision to sell the building and (2) (actually ground 3) breach of the Public Sector Equality Duty, (“PSED”.)
The issues in the claim therefore are:
i. Did the Defendant's Cabinet understand its powers under circular O6/2003 conferring a general consent in circumstances set out in that circular to dispose of property for less than best consideration.
ii. Did the Defendant's Cabinet consider whether or not to exercise its powers to dispose of the Building for less than best consideration.
iii. Was the Defendant obliged to consider whether or not to exercise those powers and, if the Defendant did consider whether or not to do so, did it do so lawfully.
iv. Did the Defendant comply with its duties under s.149 of the Equality Act 2010.
Factual Background
In November 2015, the Defendant sent to SCA a questionnaire relating to an equalities' impact assessment. Shortly afterwards, there was a meeting between a member of the Defendant's staff and members of MAAS and SCA. On the same day, a representative of SCA emailed to the Defendant's registration manager stating that he needed to contact service users and that the information requested would take some 6 to 8 weeks to put together.
A report was prepared for the Defendant's Cabinet entitled “Strategic Sites Review Southall Town Hall”, (“the December 2015 report.”) It recorded that the Building was running at a loss and that officers had been looking at a number of options with the aim of dealing with the Building without cost to the Defendant.
At para.2.4 of the December 2015 report, a number of options were put forward:
i. To review the rent and service charges with a view to removing or at least reducing the losses and providing for future repairs and maintenance liabilities.
ii. Disposal of the building to generate a financial return or annual rent
iii. The development of the Building by the Defendant.
At para.3.6 of the December 2015 report, it was recognised that there would be an impact on individuals and groups with protected characteristics but it was considered that that effect could be mitigated by ensuring that tenants and users of facilities at the Building were able to continue to rent, to meet in suitable alternative accommodation and/or that any increasing costs could be carefully considered to minimise impact on individuals and/or protected groups within the community.
At its meeting on 15 December 2015, the Defendant's Cabinet authorised their director of regeneration and planning to investigate and report back to members on those various options. It can be noted that a further report was to be forthcoming before any decision would be made on those options.
In November 2016, the Defendant wrote to the tenants of the Building informing them that a report would be presented to Cabinet seeking authority in principle to dispose of the Building and noting that that would have implications for the existing tenants. At a round about the same time, early December 2016, the Defendant decided not to accept a proposal that the Building be treated as an asset of the community under the Localism Act 2011.
On 13 December 2016, a further report was submitted to Cabinet, (“the December 2016 report.”) This recorded that the deficit had been significantly reduced but that the Defendant remained concerned about maintenance risks. It identified the Defendant's objectives as being:
1) To secure optimum use to maximise the Building's potential through a range of uses which ensures the Grade 2 listed building is operated efficiently and well maintained.
2) To secure a commercially successful scheme which would provide for the ongoing maintenance and sustainability of the iconic building in the heart of Southall town centre that is significant to place-making and Southall's regeneration.
Paragraph 15 of the December 2016 report, under the heading “Consultation” included the following passage:
“A review of the tenants in Southall Town Hall in late 2014 indicated that three organisations in particular have the potential to be affected by plans to explore alternative uses for the building in the context of the council's equality duty given the nature of their stated client groups.
A letter and questionnaire was sent to tenants asking them to indicate the numbers or percentage of their clients that fell into each of the protected groups. Data has also been collected by the SDH manager through the tenancy application process and has enabled officers to assess the impact of the proposals on those protected groups by means of the equality analysis assessment referred to above.”
The minutes of the Cabinet meeting of 13 December 2016 record the following.
“Resolved that Cabinet:
1.1 Authorise the Director of Regeneration and Planning. following consultation with the Leader the Portfolio Holder for Finance (and the opposition spokesperson) to prepare and agree a brief to market Southall Town Hall for a range of development options and management models that meet the council's objectives set out at para.2.6 (Those are the objectives I referred to above.)
1.2 Authorise the Director of Regeneration and Planning to market Southall Town Hall and seek proposals that meet the criteria of the brief.
1.3 Note that a report will be brought back to Cabinet with a recommendation following the outcome of the marketing exercise.”
Under the heading “Reasons for Decisions and Options Considered”, the following appears:
“2.1 Background
Since taking on the management of Southall Town Hall from Heathrow City Partnership (HCP) in 2009, the building has operated as an Enterprise Centre at a loss. Over the last 5 to 6 years, council officers have reviewed a number of options for the future of Southall Town Hall which would not cost the council money to run. A number of cost saving initiatives were introduced, such as removing the security guard/reception function....
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