The Queen (on the application of Christina Efthimiou v The Mayor and Commonalty and Citizens of the City of London
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cotter |
| Judgment Date | 23 June 2022 |
| Neutral Citation | [2022] EWHC 1588 (Admin) |
| Docket Number | Case No: CO/1858/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1588 (Admin)
Mr Justice Cotter
Case No: CO/1858/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Zoe Leventhal QC and Katy Sheridan (instructed by Leigh Day) for the Claimant
Clive Sheldon QC and Patrick Halliday (instructed by the Comptroller and City of London Solicitor) for the Defendant
Hearing dates: 23 & 24 February 2022 and further written submissions 4 th March 2003
Approved Judgment
Index
| Introduction | paragraphs 1 – 3 | |
| Facts | The Ponds | paragraphs 4 – 5 |
| The Parties | paragraphs 6 – 12 | |
| Charging at the Ponds | paragraphs 13 – 33 | |
| Issues | paragraph 34 | |
| Evidence | paragraphs 35 – 44 | |
| Claimant's case | paragraphs 45 – 51 | |
| Defendant's case | paragraphs 52 – 56 | |
| The Legal Framework | paragraphs 57 – 63 | |
| Ground One | paragraphs 64 – 79 | |
| Analysis | paragraphs 80 – 88 | |
| Substantial disadvantage | paragraphs 89 – 104 | |
| Reasonable adjustments | paragraphs 105 – 131 | |
| Ground Two | paragraphs 132 – 138 | |
| Analysis | paragraphs 139 – 146 | |
| Ground Three | paragraphs 147 – 155 | |
| Analysis | paragraphs 156 – 162 | |
| Conclusion | paragraph 163 |
Introduction
By a claim filed on 24 th May 2021 the Claimant challenges the lawfulness of the Defendant's charging policy for swimming at Kenwood Ladies' Pond.
The Claimant's case is that the Defendant, in adopting and refusing to revise an updated charging policy on 24 February 2021 (effective from 1 st April 2021) has breached its duty to make reasonable adjustments for disabled persons such as her under sections 20, 21 and 29 of the Equality Act 2010 (“Ground 1”). It is argued that the policy places disabled people at a substantial disadvantage in accessing swimming at the ponds on Hampstead Heath. Also that the Defendant has failed to take such steps as are reasonable to reduce or avoid the disadvantage, despite various requests and suggestions having been made by the Claimant and others. It is argued in the alternative that the charging policy constitutes indirect discrimination against those who have disabilities under section 19 of the Act (“Ground 2”) and/or under Article 14 ECHR read with Article 8 ECHR and/or Article 1 of the First Protocol (“Ground 3”).
Permission was granted on Grounds 1 and 2 on 2 nd August 2021 by Peter Marquand sitting as a Deputy Judge of the High Court. He refused permission on the third ground and the application for permission was renewed at the hearing.
Facts
The Ponds
There are three bathing ponds at Hampstead Heath; the Kenwood Ladies' Bathing Pond, the Highgate Men's Bathing Pond and the Mixed Bathing Pond.
The Kenwood Ladies' Pond has been used by women swimmers since 1925. Of the three bathing ponds, it has historically had the greatest degree of accessibility for disabled swimmers, with level access, an accessible toilet and shower, and a hoist in the pond. In the year 2019/20 there were 655,000 recorded visits to the Ladies' Pond.
The Parties
The Defendant manages the Heath as the sole trustee of the Hampstead Heath Charity (“the Charity”). The relevant history was explained by Mr Justice Stanley Burnton in R (Hampstead Heath Winter Swimming Club) v London Corporation [2005] EWHC 713 (Admin) [2005] 1 W.L.R. 2930:
“7. Hampstead Heath has been in public ownership since the 1871 Act, although its area has been supplemented subsequently. The Corporation of London came to manage Hampstead Heath as a result of the abolition of the General London Council. The Heath and the functions previously exercised by the GLC in relation to it were transferred to the corporation by the London Government Reorganisation (Hampstead Heath) Order 1989 (SI 1989/304). The order required the corporation to appoint the Hampstead Heath Management Committee “for the purposes of giving advice on, and implementing, the City's policies and programmes in relation to the heath lands”. The committee must have at least 18 members, of whom at least six must be neither council members nor employees of the corporation. The order also required the appointment of a consultative committee.
8. The functions transferred to the corporation included those set out in the Ministry of Housing and Local Government (Greater London Parks and Open Spaces) Provisional Order 1967. They included the provision and maintenance of outdoor bathing places, the enclosing of such places and the preclusion of entry by unauthorised persons and in the interests of the safety of the public. That order was subsequently confirmed by a similarly entitled 1967 Act. 9. The corporation also has power to provide recreational facilities, and in particular swimming pools, under section 19 of the Local Government (Miscellaneous Provisions) Act 1976. The provision of recreational facilities involves their management, and decisions as to who is to use them, when and under what conditions.”
The Charity's objective is the preservation of the Heath for the recreation and enjoyment of the public. As trustee of the Charity, the Defendant owes duties to act in the Charity's best interests and in accordance with its objectives, and to manage the Charity's resources prudently. The Charity's financial resources are constrained. It incurs substantial costs in conserving the Heath, and providing a range of services and facilities (including an athletics track, an education centre, children's facilities, a bowling green and a lido). In the financial year 2019/20, its expenditure (£9,851,312) exceeded its income (£9,628,345).
The Charity's income comes from three main sources: (a) the Hampstead Heath Trust Fund (an endowment for managing the Heath made in 1989) and returns on its investment; (b) funding from the Defendant's ‘City's Cash’ fund (which is used for various purposes beneficial to the public, extending far beyond the Heath); and (c) income from charitable activities, which consists principally of income from fees charged.
There is significant pressure on those funding sources. Recently the Hampstead Heath Trust Fund, and the amount of distributable income it may provide, have been adversely affected by the coronavirus pandemic. The ‘City's Cash’ fund has been running with growing operating deficits in recent years and in financial year 2021/22, the Defendant has sought to make 12% savings on all services funded by it, including its contribution to the Charity. The Charity therefore needed to achieve additional savings of £526,000.
The Claimant, who is in her late 50s, is disabled due to rheumatoid arthritis, chronic obstructive pulmonary disease (“COPD”) and depression. She is in receipt of Employment and Support Allowance (ESA), Personal Independence Payment (PIP) and other benefits. She swims regularly at the pond (about 3 times a week or more) and has been doing so for 3–4 years. She explains in her witness statement that swimming is the best exercise for her condition and that:
“…the ponds have become a large part of my therapy. Swimming in the ponds has become something that I rely on to help me mentally, emotionally and physically. Since swimming in the ponds, my mood has improved, my immune system has been boosted as I have not been ill as frequently, I feel better in myself and am in less pain. The impact on my long-term illnesses is huge as I do not need to take as much pain relief as I was previously taking.”
Her GP confirmed that:
“over the years [the Claimant] has frequently spoken about how she finds regular cold-water swimming of enormous benefit to her mental and emotional wellbeing and in turn this has helped her manage her chronic pain conditions more effectively and with much less reliance on pharmacological agents.”
As a result of the charges introduced, the Claimant has faced significant difficulty in meeting the cost of swimming, as she explained in her evidence. In October 2020, she was unable to afford the cost of a concession season ticket when she wanted to purchase one. She has had to borrow and ask for contributions from friends and family in order to be able to do so. She is also unlikely to be able to afford one again in the future when it comes for renewal.
Charging at the ponds
Until 2005, swimming at the Ponds was free of charge.
In 2005, the Defendant introduced a ‘self-policing’ charge of £2 per swim, with a £1 concessionary rate, along with an annual payment scheme. There were machines at which payment could be made. It appears many, if not most, visitors did not pay. Such is a well-recognised problem suffered by many “honesty” schemes. Under this system, costs were more than ten times higher than revenue. The substantial costs of operating the Ponds include paying for lifeguards, rescue equipment, water testing, aerators, upkeep of the facilities and maintenance of the Ponds themselves (which are man-made rather than natural structures).
On 7 th January 2020, the Defendant initiated a “Swimming Review”, one objective of which was to “secure the long-term sustainability of the Hampstead Heath swimming facilities” in the light of exceptional 2018 and 2019 summer seasons and a fatality at the Highgate Men's Bathing Pond in summer 2019. Factors to be taken into account were stated to be:
(a) Health & Safety Executive advice following the death of a swimmer in June 2019 at the Highgate Men's Bathing Pond;
(b) Fulfilling responsibilities and the duty of care towards visitors, lifeguards and wider Heath staff.
(c) Responding to increasing demand for cold water swimming on the Heath.
(d) Ensuring facilities are inclusive and welcoming to a diverse range of visitors.
(e)...
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