Christopher Luff has kindly provided this guest post on a case with implications both for equality law and for social action by faith-groups.

Introduction

Blake & Ors v Waltham Forest LB [2014] EWHC 1027 (Admin) seemed like any other judicial review case when it appeared on my Twitter feed a couple of weeks ago. It was only when my denominational newspaper reported the dispute that I started to make enquiries into the case, which in fact involves a church-run soup kitchen called “Christian Kitchen”.

The soup kitchen has operated with the Council’s permission in a Council-owned car park for some 25 years or more. The Council makes no charge to the trustees of the Christian Kitchen; it is operated by means of a bare licence. It runs 365 days a year and serves 80 hot meals per night. Allegations of anti-social behaviour, coupled with a desire to regenerate the district around the car park, led to the Council seeking to revoke the licence in a decision dated 17 April 2013 [para 1].

It was common ground that the Council was under no obligation to run, support or otherwise facilitate the operation. It could lawfully terminate the Christian Kitchen’s licence, subject only to the requirements of the Public Sector Equality Duty. It was also common ground that the PSED was engaged. The dispute revolved around whether or not the Council had discharged the duty. While the Council was under no obligation to offer an alternative site to the kitchen, it did so. However, that site was a long way from the original site, and was refused by the trustees of the Christian Kitchen on grounds of safety and accessibility [para 2].

Permission to seek judicial review, including grounds rather wider than the PSED alone, was initially refused, [para 3] and on renewal before a judge was granted on the sole grounds of the PSED. Christian Kitchen contended that the Council should have considered the PSED on the basis the soup kitchen would cease rather than relocate, arguing that it was “wholly unreasonable that … users … would suffer no detriment” due to the proposed relocation. In response, the Council claimed that its decision had not been contingent on the alternative site being acceptable. It argued that criticisms on that basis were “irrelevant” and that the decision “in any event plainly complied with the PSED.” [para 6]

Facts

The judge recorded that the facts were largely uncontroversial. Anti-social behaviour was being complained of from around 2011, with reports of noise, rowdiness and littering. “A Police Impact Report identified significant support for the soup kitchen; but a mixed attitude to its location with a small majority of residents expressing a preference to have it located away from the High Street and/or in a non-residential area [para 11].

The Council sought to engage with the trustees of Christian Kitchen during the latter part of 2012, although it appears initial contact was unsuccessful. A Council meeting minute from 14 November 2012 records that “the organiser were being compelled to engage and arrange to relocate their soup kitchen” [para 12]. During a subsequent meeting, however, the trustees were not left with the impression that they were being required to move. Importantly, the Council officers made no enquiries about the background characteristics of the soup kitchen users [para 13]. An informal minute recording details of this meeting was not provided to the trustees for some 3 months, and its accuracy was disputed. In particular the claim that soup kitchen users travelled for no more than 30 minutes by bus to access the service was disputed by the trustees, who suggested that few users actually came by bus. It was agreed that the trustees had asserted that “no two nights were the same – service users are not consistent, you may only recognise a few regular faces” [para 14].

The Council officers stated that when assessing alternative sites they focussed on accessibility and safety, and that they were “looking for sites where antisocial behaviour would be less likely … and less intrusive.” Specifically, the decision maker “had in mind the elderly, disabled and women. This is a fundamental aspect of my area of expertise and work” [para 15]. The decision maker stated that he made one “drive past” observation of the soup kitchen in operation, and noted that “users were male [and] less than 45 years old.” He did not notice any female or obviously disabled service users. Nevertheless, “when assessing the alternative site I considered it having in mind that it needed to be accessible to all, i.e. male, female, elderly and/or disabled” [para 17].

At a subsequent meeting the trustees were informed that “it [was] not feasible long-term for them to stay, with £5.5 million being invested in the area.” The “only feasible option” suggested to the trustees was an alternative site in a non-residential location on the North Circular road [para 18]. The trustees were given four weeks to discuss the matter and a further two weeks to relocate, extended to six weeks after protest from the trustees at this “sudden and unjust eviction” [para 19].

The judge records that at no time were the trustees asked about any PSED-type protected characteristics of their service users, the observation of the decision maker, nor any discussion about safety and accessibility regarding the new site [para 20].

The pre-action-protocol letter included information on several specific service users, including one (joint-claimant) “vulnerable disabled woman, street homeless and user of the kitchen every night for 10 years.” She was unable to walk more than a short distance and could not afford the bus fare to the new location. Other elderly and infirm service users were identified, including one 83 year old man. Safety concerns were raised regarding the move away from a well-lit heavily populated area [para 24].

Subsequently, an equality analysis was undertaken by the Council, [para 26] followed by a further meeting with the trustees, who described the Crooked Billet option as “outrageous and provocative” [para 30]. There was a suggestion, taken up later by the Council, [para 35] that the soup kitchen might relocate to a local sponsoring church that had a car park. However, none was identified as suitable [paras 30 & 38].[1] Safety concerns were addressed by the Council offering to put up guardrails and suggesting that volunteers wear high-visibility jackets “if likely to be entering the carriageway during a soup kitchen service” [para 36]. Transport concerns were addressed by the Council suggesting service users might be eligible for a bus “Freedom pass” but there was no published policy suggesting any specific provision for homeless people to apply for one, and many of the street homeless were found not to be in receipt of any benefits at all from which they might afford public transport [para 39].

The Report and Equality Analysis

The analysis summarised the reasons for the Council’s decision and assessment of its impact stating that “the negative impact of the behaviour associated with the service users outweighs the benefits of the service” [para 43]. Crucially, “no data beyond anecdotal data was available to indicate whether there are any disabled service users” although the decision maker assumed that some service users might be disabled. The report considered that there might be a “short-term decrease in uptake of the service” for this reason. The fact the new location was within “easy reach of several bus routes” was seen as a mitigating factor [para 46].

Similarly, anecdotal evidence only was available on the protected characteristic of race, where it was thought a disproportionate number of migrants from Eastern Europe, who have no access to benefits, might be affected. It was felt that publicity and signposting would be sufficient to mitigate the effects of the relocation [para 47].

The report concludes that “there is no evidence to suggest that long-term the relocation will affect their ability to access the soup kitchen.” On the other hand, the relocation “will benefit all users of the High Street area, including those with protected equality characteristics, by addressing antisocial and violent behaviour…”  [para 49].

The Law

The relevant parts of Section 149 of the Equality Act 2010 provide that:

(1) A public authority must, in the exercise of its functions, have due regard to the need 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.

[…]

(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

(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.

(4) 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.

(5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

(a) tackle prejudice, and

(b) promote understanding.

[…]

(7) The relevant protected characteristics are—

age; disability; gender reassignment; pregnancy and maternity; race; religion or belief; sex; sexual orientation.

[…]

Mrs Justice Simler summarised the case law on the PSED, which she described as “well established.” The PSED’s importance for non-discrimination has been “repeatedly emphasised”. It applies even to the private law arrangements of public bodies, “such as the termination of a … licence.” Due regard is a substantive matter to be conducted with an open mind. It is not a box-ticking exercise. The duty is an “essential preliminary” to a decision, rather than a “rear-guard action”. The PSED may involve a duty of enquiry. The role of the court is procedural. It cannot interfere with the weight a decision maker attributes to a relevant consideration. “The court will not micromanage such decisions” [para 54].

The claimants argued that the Council had failed to identify closure of the soup kitchen as a pertinent risk, an issue on which the Equality Assessment was silent [para 55]. The Council argued that the decision to revoke the licence was “not contingent on a suitable alternative site being offered”. There was no obligation on the Council to provide an alternative; it had a free-standing right to revoke the licence [para 56]. Nevertheless, it argued that the Equality Assessment proceeded on the “assumption” that the alternative site would be taken up. The risk of closure was so obvious that it did not need to be mentioned [para 57]. It further argued that it had, in fact, “identified the vulnerable people potentially affected”  [para 57].

Conclusions

Some of the language used by Mrs Justice Simler seems to indicate a frustration with the decision-maker’s actions. She refers to the case concerning “the application of well-established principles”, [para 58] reiterating that those principles include clarity of the equality implications and a structured approach to decision making [para 59]. She pointed to a failure to follow the Council’s own guidance, by failing to identify the adverse impacts of the decision, failing to engage with mitigating measures and failing to address the likelihood of the soup kitchen closing. “The Council, instead, examined and assessed a hoped for and much less serious impact” [para 60].

She referred to the Council’s “substantive obligation to grapple realistically and frankly with the obvious adverse impacts”, its consistent focus on relocation, and failure even to mention the possibility of closure [para 61]. The impacts were all described as short-term, whereas “a risk of closure altogether could not realistically be described as short-term” [para 66]. The Equality Analysis also failed to mention key objections made by the trustees to the alternative site and their refusal to relocate there. “Instead, the opposite impression is created… whether this was deliberate … I know not” [para 63]. Later, “the failure here was at a basic level … a wholly unrealistic approach by the Council … internally inconsistent” [para 69].

Of the Council’s assessment of accessibility, there was “no evidence basis” for its assumptions [para 70]. The decision overall to relocate to the Crooked Billet “fails to accord with reality or common sense … where no facilities likely to be accessed by homeless people are located [and] inevitably lead[ing] to lone women and other vulnerable people to feel unsafe” [para 71]. With respect to those service users who experience mobility difficulties or who cannot afford the cost of public transport, “nowhere does the Council engage with the practical impacts its analysis actually identifies” [para 72].

Ultimately, because the risk of closure was not considered, the process was described by the judge as “vitiated from the outset.” [para 74].

Relief

The Council argued that the judge should limit herself to a declaration only. However, “given the importance of the duty in fulfilling the aims of the anti-discrimination legislation” the judge made a quashing order [para 76]. This was expressly on the basis that following a PSED-compliant reconsideration “a different decision might be reached” [para 77].

Comment

In view of the comments recorded in the Council meeting of 14 November 2012, it appears the Council’s mind had already been made up, (“compelled to engage and arrange to relocate…”) which is another inconsistency with the PSED, which procedurally is to take place before a final decision is made.

A further inconsistency is apparent in the claims that PSED protected characteristic data was “not available” [paras 46 & 47] but that the Council had “identified the vulnerable people potentially affected” [para 57]. In fact, availability does not appear to have been the operative issue, with service users visiting the soup kitchen at the rate of 80 per evening and therefore available to speak to.

The alternative lay-by location is not obvious using Google Maps. However, it appears likely that the alternative location was very close to the traffic on the North Circular, close to the Holiday Inn, and possibly abutting the dual carriageway itself; hence the Council’s advice to volunteers to wear high-visibility jackets and the contemplation that they may enter the main carriageway while the soup kitchen operated.

Some of the judge’s language appears consistent with a rationality decision, and it is interesting to note that in its original claim the trustees sought permission on several further grounds including irrationality [para 3]. One wonders if permission had in fact been given on those grounds they would have been successful also. The Council appears to have wanted to both have its cake and eat it, in arguing its free-standing right to revoke the licence, while focusing attention on the potential for relocation. Rationality is of course a much more precarious line of challenge. However, in the absence of the PSED, the review of which is contemplated in 2016,[2] it may be the only ground of challenge in similar circumstances.

Nevertheless, in the meantime, a fully compliant Equality Assessment directed at the impact of closure would not seem to be an insurmountable hurdle to overcome if the Council is indeed intent on revoking the soup kitchen’s licence. In legal terms the PSED is, as the judge pointed out, a procedural protection only. However, it may yet reveal a more substantive effect in that compliance could, by highlighting the true nature of the impact of closure, compel the Council to face up to the political and social cost of its decisions.

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Note: There is a rudimentary website for the Christian Kitchen, here, and a Facebook page with links to print and television media coverage of the case, here. The original article in the Baptist Times that alerted me to the case can be found here. The housing law blog, Nearly Legal, has a shorter case note here.