The Queen (on the application of Sofia Sheakh) v London Borough of Lambeth Council
| Jurisdiction | England & Wales |
| Judge | Lady Justice Elisabeth Laing,Lord Justice Males |
| Judgment Date | 05 April 2022 |
| Neutral Citation | [2022] EWCA Civ 457 |
| Docket Number | Case No: CA-2021-000701 (formerly C1/2021/1320) |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 457
Sir Keith Lindblom
(SENIOR PRESIDENT OF TRIBUNALS)
Lord Justice Males
and
Lady Justice Elisabeth Laing
Case No: CA-2021-000701 (formerly C1/2021/1320)
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT (PLANNING COURT)
MR JUSTICE KERR
Royal Courts of Justice
Strand, London, WC2A 2LL
Tim Buley Q.C. (instructed by Scott-Moncrieff & Associates LLP) for the Appellant
Timothy Mould Q.C. (instructed by Lambeth Legal Services) for the Respondent
Hearing date: 13 January 2022
Approved Judgment
This judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to Bailii and the National Archive. The date and time for hand-down was deemed not before 4pm on 5 April 2022
The Senior President of Tribunals, Lord Justice Males and
Introduction
This is the judgment of the court.
When a local traffic authority made experimental traffic orders under section 9 of the Road Traffic Regulation Act 1984, did it discharge the “public sector equality duty” under section 149 of the Equality Act 2010? That is the central question in this appeal. Our answer to it, as we shall explain, is that the section 149 duty was lawfully discharged.
The appellant, Ms Sofia Sheakh, appeals against the order of Mr Justice Kerr, dated 29 June 2021, dismissing her claims for statutory review and judicial review of experimental traffic orders made by the respondent, the London Borough of Lambeth Council, as local traffic authority, for three Low Traffic Neighbourhoods in its area – the Oval Triangle Low Traffic Neighbourhood, the Streatham Hill Low Traffic Neighbourhood and the Railton and St Matthew's Low Traffic Neighbourhood. The effect of the orders, broadly, was to restrict the movement of vehicular traffic in those parts of the borough, their main purpose being to promote walking and cycling and to discourage the use of motor vehicles. The decisions which gave rise to the challenged orders were made by the council's Strategic Director: Resident Services, Mr Bayo Dosunmu, under delegated powers, on 9 October 2020.
Ms Sheakh is a resident of the borough. She lives in a cul de sac close to Shakespeare Road, a short distance from the Railton and St Matthew's Low Traffic Neighbourhood. She is severely physically disabled, with a diagnosis of chronic sarcoidosis, and is now still more vulnerable after contracting Covid-19 in 2020. Unable to use public transport, she depends on her car for every journey from home. She and others who rely on using a car say that their lives have been made more difficult by the introduction of the Low Traffic Neighbourhoods – because the traffic displaced has increased congestion on local streets and added to the time spent on journeys. They say that the council overlooked these consequences when making the experimental traffic orders, and that it failed to comply with the public sector equality duty.
Kerr J. dismissed Ms Sheakh's claims on all pleaded grounds. He granted permission to appeal only on the ground relating to the public sector equality duty. Permission to appeal on a further ground, alleging the council's failure to discharge its duty under section 122 of the 1984 Act, was later refused by Lord Justice Dingemans.
The issue in the appeal
The sole issue in the appeal is whether Kerr J. was wrong to hold that, when the council made the experimental traffic orders, it lawfully discharged its duty under section 149 of the 2010 Act, properly considering the equality implications of the decisions it took at that stage.
Section 149 of the 2010 Act – the public sector equality duty
Section 149(1) of the 2010 Act requires a public authority, “in the exercise of its functions”, to have “due regard” to the equality needs which it identifies in paragraphs (a), (b) and (c), namely the needs to:
“(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it”.
Section 149(3) provides that having “due regard” to the need identified in subsection (1)(b) “involves having due regard, in particular, to the need” to do three things:
“(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low”.
Section 149(4) provides that “[the] steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities”. Compliance with the duties imposed by section 149 “may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under” the 2010 Act (section 149(5)). The relevant “protected characteristics” include “disability” (section 149(7)).
Relevant jurisprudence
There is ample authority on the meaning and effect of section 149. Five points are especially relevant here. First, section 149 does not require a substantive result (see the judgment of Lord Justice Dyson in R. (on the application of Baker) v Secretary of State for Communities and Local Government [2008] EWCA Civ 141; [2009] PTSR 809 (at paragraph 31)). Second, it does not prescribe a particular procedure. It does not, for example, mandate the production of an equality impact assessment at any particular moment in a process of decision-making, or indeed at all (see R. (on the application of Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158; [2009] PTSR 1506, at paragraph 89). Third, like other public law duties, it implies a duty of reasonable enquiry (see Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] A.C. 1014). Fourth, it requires a decision-maker to understand the obvious equality impacts of a decision before adopting a policy (see the judgment of Lord Justice Pill, with which the other members of this court agreed, in R. (on the application of Bailey) v Brent London Borough Council [2011] EWCA Civ 1586; [2012] Eq. L.R. 168, at paragraphs 79, 81 and 82). And fifth, courts should not engage in an unduly legalistic investigation of the way in which a local authority has assessed the impact of a decision on the equality needs (see the judgment of Lord Justice Davis in Bailey, with which Lord Justice Richards agreed, at paragraph 102).
In R. (on the application of Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345; [2014] Eq. L.R. 60, Lord Justice McCombe, with whom Lord Justice Kitchin and Lord Justice Elias agreed, collected from the salient authorities “eight principles” which were “not significantly in dispute” (at paragraph 26).
Five of those “eight principles” were mentioned in argument before us: “(3) [The] relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice: R (National Association of Health Stores) v Secretary of State for Health [2005] EWCA Civ 154) at [26 – 27] per Sedley LJ”; “(4) [A] Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a “rearguard action”, following a completed decision: per Moses LJ … in Kaur and Shah v Ealing London Borough Council [2008] EWHC 2062 (Admin)”; “(5) … (iv) [The] duty is non-delegable … [see Brown]”; “(6) “[General] regard to issues of equality is not the same as having specific regard, by way of conscious approach to the specific criteria.” (per Davis J … in R (Meany) v Harlow DC [2009] EWHC 559 (Admin) at [84], approved in this court in R (Bailey) v Brent LBC [2011] EWCA Civ 1586 at [74–75])”; and “(8) … [As was submitted in R. (on the application of Hurley and Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin), and accepted by Elias L.J. at paragraph 90,] … the combination of the principles in [ Tameside] and the duty of due regard under the statute requires public authorities to be properly informed before taking a decision”, and “[if] the relevant material is not available, there will be a duty to acquire it and this will frequently mean that some further consultation with appropriate groups is required … [see the judgment of Lord Justice Aikens in Brown, at paragraph 85]”.
Both sides in this appeal referred to “the Bracking requirements”. In our view it is better to refer to these propositions as “principles” rather than “requirements” – as did the Divisional Court (Lord Justice Singh and Mr Justice Swift) in its recent decision in R. (on the application of Good Law Project and Runnymede Trust) v The Prime Minister and Secretary of State for...
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