R (on the application of Brown) v Secretary of State for Work and Pensions, (Royal Mail Group Ltd and Post Office Ltd (Interested Parties); Equality and Human Rights Commission (Intervening))

JurisdictionEngland & Wales
JudgeLord Justice Aikens
Judgment Date18 December 2008
Neutral Citation[2008] EWHC 3158 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/1537/2008
Date18 December 2008
Between:
The Queen on the Application of Judy Brown
Claimant
and
(1) Secretary of State for Work and Pensions
(2) Secretary of State for Business, Enterprise and Regulatory Reform
Defendants
and
(1) Royal Mail Group Limited
(2) Post Office Limited
Interested Parties
and
Equality and Human Rights Commission
Intervener

[2008] EWHC 3158 (Admin)

Before:

Lord Justice Scott Baker

Lord Justice Aikens

Case No: CO/1537/2008

IN THE HIGH COURT OF JUSTICE

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

James Goudie QC and Stephen Knafler (instructed by Pierce Glynn, Solicitors, London) for the Claimant

Jonathan Swift and Karen Steyn (instructed by Office of the Solicitor to the Department for Work and Pensions, London for the 1 st Defendant and Treasury Solicitor, London for the 2 nd Defendant) for the First and Second Defendants

Michael Fordham QC and Shaheed Fatima ( instructed by Olswang, Solicitors, London) for the First and Second Interested Parties

Helen Mountfield ( instructed by Equality and Human Rights Commission, Manchester) for the Intervener

Judgement

Lord Justice Aikens

This is the judgment of the court to which both judges have contributed.

A. The Background to the Claim.

1

The local Post Office has long had a place in the affection of the British public. In rural areas in particular it is often regarded as being at the centre of the community. Announcements of Post Office closures are unpopular and most peoples' lives have been touched in one way or another by Post Office closures. However, the advent of modern technology, the changing habits of the public and the fact that the Post Office network has made vast losses for years has made closures inevitable. This case is concerned with the duties owed to disabled people in respect of the closures proposed by the government in 2007.

2

Between the 1970s and 2006 some 10,500 Post Offices were closed. Since 2000 the decline in the use of Post Offices has accelerated. Some particular reasons for the downturn in use are: the government's decision to make payments of benefits and pensions directly to banks; the ability to make car tax and TV licence payments online; the availability of stamp purchases online and from many retailers, and the shift of shopping from town centres to retail parks. The result of all this has been that the volume of transactions handled by the Post Office network declined by one third between 2000/1 and 2003/4. Between 2004 and 2006, the weekly use of Post Offices fell by 4 million. Despite government funding of £2 billion since 1999, the Post Office network was losing about £3 million a week by 2006. At that point indications were that the customer base would continue to shrink, the losses would continue to rise and that the Post Office network would become insolvent without either further massive government support, or radical changes or both.

3

The Office for Disability Issues, which is a part of the Department of Work and Pensions (“DWP”) estimates that there are some 10 million disabled people in the UK, including those with limiting long – standing illnesses. Of that total about 4.6 million are over state pension age and about 700,000 are children. It is estimated that one in four households has one member that is disabled. About 8 million out of a total of 10 million disabled people have difficulty in walking or climbing stairs. It goes without saying that disability comes in many different forms.

4

In February 2005 a National Audit Office report had noted that “vulnerable people (for example the elderly and those lacking mobility) tend to rely more heavily on Post Offices and are least able to adapt if their local Post Office closes”. The government recognised at the time that a high proportion of Post Office customers comprised elderly people, disabled people, those on low incomes and those without ready access to private transport.

5

Here lie the opposing tensions which have given rise to this case.

6

The Claimant: Mrs Judy Brown, the Claimant, lives with her husband in Old Town, Hastings, Sussex. They are both retired and live on pensions. They do not have a car and are dependent on public transport. Mrs Brown is disabled. The effect of her disability is that she cannot stand or walk for long periods without acute discomfort and pain. Nor can she carry heavy loads for long. Mrs Brown's mother, who is 86, also lives in Hastings. She is frail and cannot get about much.

7

The Old Town, Hastings, is in a valley between two steep hills. It is separated from the town centre of Hastings by a hill. Old Town has a permanent population of about 6000. Many are elderly. There are several care homes in the town. With all its historic associations, tourism also thrives in the area.

8

Hastings used to have a number of Post Offices. There have been closures over the last 5 years. The Old Town itself has had a Post Office for centuries. Mrs Brown has used it for several services twice a week for the last eight years. In particular, Mrs Brown used the Post Office for its banking facilities, which are the only ones readily available to her in Old Town. She did so for her own banking needs and those of her immobile mother. Mrs Brown also used the Post Office for shopping by mail order and the more traditional Post Office services, such as buying stamps and sending parcels.

9

The Letter before claim: On 16 November 2007 an article appeared in The Hastings Observer. It said that several post offices in Sussex were to be closed, including the Post Office in Old Town Hastings. Mrs Brown and her husband made enquiries and found out that there was a consultation period about possible closures. They wrote to Mr Adam Crozier, the chief executive of Royal Mail, asking him about the procedures used to decide which Post Offices should be closed and about what criteria had been used to make the decision. They took legal advice from solicitors.

10

On 23 January 2008, Pierce Glynn, the solicitors acting for Mrs Brown and her husband, wrote a Letter before Claim to the Department of Work and Pensions (“DWP”), the Department of Business, Enterprise and Regulatory Reform (“DBERR”, which had replaced the DTI) and the Royal Mail Group plc, which became Royal Mail Group Ltd in 2007. (We will refer to both these companies as “RMGL”). The letter pointed out that between 2002 and 2005 there had been a significant programme of Post Office closures in urban areas, including Hastings. It stated, correctly, that on 14 December 2006 the DTI published a consultation paper proposing a further round of closures of up to 2,500 Post Offices in both urban and rural areas. The consultation period had expired on 8 March 2007. In May 2007 the DTI had published its response to this consultation process in a paper entitled “The Post Office Network”.

11

The letter from Pierce Glynn noted that there had been further consultation periods for particular local areas. The consultation for Sussex had been undertaken between 13 November and 24 December 2007. The Sussex consultation paper proposed the closure of 49 Post Offices in Sussex and 4 in Hastings.

12

The Letter before Claim continued by stating that Mrs Brown intended to make three broad areas of challenge in judicial review proceedings. All three concerned actions or alleged failures of ministers or of RMGL relating to the proposed Post Office closures in the light of the Disability Discrimination Act 1995 (“the DDA”), which had been considerably amended in 2005. We shall explain the nature of the Claimant's complaints in more detail later on, but we should indicate briefly now the points made in the Letter before Claim, so far as they are still relevant.

13

Under the amended DDA, section 49A(1) imposed a general duty on all public authorities to have “due regard” to various needs concerning disabled people, with the overall aim of enhancing their position in society. Section 49D of the DDA gave the Secretary of State for Work and Pensions the power to make regulations to impose upon public authorities further specific duties to ensure the better performance by those authorities of their general duties under section 49A(1). In 2005 the Secretary of State for the Department of Work and Pensions (“SSWP”), issued regulations 1 which identified a large number of public authorities and imposed on them specific duties in relation to disability. The most important of these duties, for present purposes, is the duty to publish a “Disability Equality Scheme”, (which we shall call a “DES”), in which the public authority concerned would show how it intended to fulfil its duties under section 49A(1) of the DDA and the duties imposed on it under the 2005 regulations. Schedule 1, Part 1 of the 2005 regulations listed both “a minister of the Crown or government department” and also “Royal Mail Group” as entities to which the specific duties under the 2005 regulations applied. All entities listed in Part 1 of Schedule 1 of the 2005 regulations were obliged to publish their DES by 4 December 2006.

14

In 2007, the SSWP made a further regulation under section 49D of the DDA. 2 Regulation 3(b) of the 2007 regulations purported to remove “Royal Mail Group” from the list of public authorities on which the specific duties were imposed by the 2005 regulations. The first point raised by the claimant in the Letter before Claim and made against the SSWP, was to challenge the legality of Regulation 3(b) of the 2007 regulations.

15

The second challenge, which was against the Secretary of State for the Department of Business, Enterprise and Regulatory Reform, (“the SSBERR”), fell into two parts. The first attacked the DES of...

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