Queen’s Bench Division (Planning Court): Kerr J, [2021] EWHC 3294 (Admin), 7 December 2021

This was an unsuccessful challenge under Articles 8 and 14 and s149 EqA (the PSED) to experimental traffic orders (ETOs) made by the respondent which took effect from 9 November 2020. The applicants complained that they are severely prejudiced by increased car journey times to and from their school. The challenge was brought under paragraph 35, Part VI, Schedule 9 to the Road Traffic Regulation Act 1984 rather than by way of judicial review, and so did not require permission, but Kerr J pointed out at §4 that the same principles applied. He expressed sympathy for the applicants who he accepted had been disadvantaged by the ETOs but upheld them as proportionate measures in pursuit of legitimate aims of reducing congestion, improving air quality, road safety and accessibility, encouraging active travel to school and social distancing (applying R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, [2021] 3 WLR 428 [and see earlier blog]. He rejected the PSED claim on the basis that, taken in the round, the respondent had taken sufficient steps to comply with the duty of due regard.

The first applicant, aged 16, had severe learning disability with a diagnosis of ADHD with other difficulties and mental health issues, complex needs and behaviour difficulties. The second applicant, aged five, had been diagnosed with global developmental delay with mobility and balance difficulties and delayed speech development. Both were members of the Orthodox Jewish community and attended “S School”, a fee paying special school in Hackney and the only Orthodox Jewish special school in London. The applicants, whose disabilities meant that they needed to be driven to and from school by car were affected by the ETOs as were 84 other children at the school. Both applicants became more anxious, restless, difficult and challenging in various ways according to the length of journey involved which had (prior to the ETOs been in the region of 10-15 and 6-10 minutes respectively). Kerr J accepted at §21 that “There is no doubt that it is best for them to have a swift, easy dnd uneventful car journey to and from school”.

Kerr J noted at §43 that the purpose of the ETOs was to:

• Reduce congestion in the street associated with school opening and closing.
• Improve local air quality and reduce emissions around the school gates.
• Increase road safety and accessibility for non-motorised users.
• Encourage active travel to school for pupils and parents.
• Provide pupils, parents and staff with more space for social distancing outside the school gates.”

An equality analysis had indicated that “In November 2017, 4.1% of the local population (11,234 people) were claiming Disability Living Allowance or Attendance Allowance. The main modes of transport used by disabled Londoners at least once a week are walking (78%), bus (55%), car as a passenger (44%) and car as a driver (24%). Therefore, the number of mobility impaired residents potentially affected by School Streets is low. However, consideration has been given to the impact on disabled residents living within the School Street Zones (including SEND pupils), and disabled visitors to the area”.

Blue badge holders resident within the relevant areas were provided with exemptions and arrangements were made for providers of school transport to disabled students. The school was invited to provide the registration numbers of specific special needs transport vehicles (used by multiple students) that could be the subject of case-by-case exemption requests, the school’s view being that this was impracticable given the variety of vehicles used to transport students. It was claimed that the first claimant’s journey to school now took between 25 and 40 minutes and the second’s 20 minutes, though occasionally up to 45 minutes. The first claimant’s behaviour was said to be create serious difficulties while the second claimant had “real difficulties with his complex needs including, unfortunately, sometimes wetting himself during the journey as he has incomplete toilet training.” It was accepted by the second claimant’s mother that the increased journey times were also caused by a different road closure near their home though the ETOs were described by her as the “final straw” as “often they are delayed substantially when only a short distance from S School, causing [the second claimant] the frustration of knowing the School is near but not yet being able to get out of the car.” This evidence was disputed by Hackney which pointed to a lack of “systematic or detailed contemporaneous logging of journey times over a significant period” and suggested that the average journey times for the first and second claimant were about eight minutes and between seven and eight minutes respectively.

Hackney accepted that some disabled pupils at S School were disadvantaged by the ETOs and that this had to be weighed against the benefit derived from them by others, including disabled residents. It suggested that the exemption of school vehicles transporting multiple children was a proportionate response, whereas exempting private vehicles would undermine the council’s aim and would place 300 pupils at the nearby Harrington Primary School at a disadvantage by reason of increased traffic “while the reported reduction in journey time for the private vehicles carrying children to S School would only be about 10 or 15 minutes, at most”.

The claimants sought to challenge Hackney’s performance of its PSED because of its failure expressly to consider the impact of the ETOs on those whose access to school, rather than home, was affected by them. They argued that Hackney had failed to comply with the Tameside duty to make adequate inquiries (specifically of parents of children at S school) and had therefore possessed inadequate knowledge to perform the “due regard” duty. Kerr J ruled at §94 that it was legitimate for Hackney to proceed further and urgently with its proposals to reduce traffic and at §96 that “[t]he degree of “regard” had to equalities goals is not necessarily to be found only by examining the text of the decision paper” (observing at §98 that “[t]he impact assessment is only an evidential tool”. The judge referred to Hackney’s consultations with Disability Backup, the Royal National Institute for the Blind and Wheels for Wellbeing, the Hackney SEND transport team, and with representatives of the Hatzola ambulance service and S School who did not appear to have raised any specific complaint about the impact of increased journey times on children attending the school with disabilities of a particular type, stating at §98 that “Just as performance of the duty is not guaranteed by conducting an impact assessment, non-performance is not shown just because something done is not mentioned in the assessment”. Kerr J referred at §§101-101 to the fact that Hackney had intended to conduct, and had conducted, further equality assessments which had included consideration of the specific complaint of the applicants, going on to describe at §103 as “a curiosity that the Tameside duty of enquiry attracts a rationality threshold and the steps needed to perform it are therefore (subject to rationality) a matter of judgment for the decision maker; but the section 149 duty sets an objective standard and the court, not the decision maker, must decide whether the standard has been met or not”, He referred to the fact that “in the context of a temporary experimental decision, the decision maker by definition does not know all it needs to know to make a final decision” and at §104 rejected the applicants’ claim that Hackney should have conferred with the families, or representatives of the families, of pupils at S school, as distinct from with the school itself.  At §105 he concluded that Hackney had complied with s149 EqA “even though it did not, at the initial stage of the experiment, include drilling down to consideration of the specific impact on a particular sub-cohort of disabled children who could be adversely affected by increased journey times. The impact on those with protected characteristics including disability was considered carefully and there was to be ongoing monitoring and assessment”.

Kerr J also rejected a consultation challenge, not further considered here, before going on to address the challenge under Article 8 ECHR read alone and/or in combination with Article 14. Kerr J declared himself satisfied that the detriment to the applicants was “material” because they and, he inferred, other pupils at S School were “vulnerable and much upset even by relatively minor disruption to their journey which to others would be only a minor irritant” (§165). As to justification, he cited the decision of the Court of Appeal in R (The Motherhood Plan) v HM Treasury [2021] EWCA Civ 1703 (and see associated blog) at §§99-102, in particular the citation at §99 of Lady Hale in R (SG) v Secretary of State for Work and Pensions) [2015] UKSC 16, [2015] 1 WLR 1449 at §189 “explaining that where a neutrally worded measure adversely impacts on a protected group such as women, ‘it is the measure itself that has to be justified, rather than the fact that women are disproportionately affected by it’” (§167), and went on at §168 to suggest that this was “contrary to what I said at [98] in R (MD & EH) v Secretary of State for the Home Department [2021] EWHC 1370 (Admin) [2021] PTSR 1680, see previous post where a measure made in error had unintended consequences (though whether it would make any difference to focus on the measure itself rather than its consequences is another matter)”. At §169 he cited Motherhood Plan §101 to the effect that “the fact that it is the measure that must be justified ‘does not mean that the disproportionate impact is irrelevant: justification involves weighing the importance of the measure against its discriminatory impact’”. Having observed that Lady Black had, in R (Stott) v Secretary of State for Justice [2018] UKSC 59; [2020] AC 51 at §8, “emphasised the interplay between the third and fourth question” she there posed (i.e., whether “the claimant and the person who has been treated differently [were] in analogous situations” and whether “objective justification for the different treatment [was] lacking”, Kerr J went on to remind himself at §171 that “in undertaking my assessment with the appropriate level of intensity of review, the court must do what is just and respects the boundary between rule of law and separation of powers” and “must apply the principle of proportionality in a manner which ‘respects the boundaries between legality and the political process’” (citing Lord Reed in SC §§146 and 162)

172. Returning to the facts, the measure at issue here has some differential impact on the sub-group of disabled children comprising the applicants and other disabled pupils at S School adversely affected by increased journey times. That is a form of discrimination on the ground of disability which is a “suspect” ground generally requiring “very weighty reasons” to justify a “difference in treatment” (cf. Lord Reed’s analysis of the Strasbourg jurisprudence on the point in R (SC) v Secretary of State for Work and Pensions at [101]-[116]).
173. On the other hand, the measure is, as Hackney rightly submits, a general measure of social strategy, historically attracting a wide margin of appreciation for the decision maker, in that body of Strasbourg cases, corresponding to the “manifestly without reasonable foundation” standard” (citing Lord Lloyd Jones JSC in R (A) v Criminal Injuries Compensation Authority , [2021] UKSC 27, [2021] 1 WLR 3746 at §81 [see earlier post])…

At §172 Kerr J ruled that “finding no one factor of overriding significance and attempting an ‘overall balanced assessment’, he found the ETOs justified because (§§175-176) “the degree of adverse impact by reason of disability is limited”, affecting “a small sub-group of disabled children suffering from a particular kind of disability … by the indirect route of increasing the journey time to and from the S School”; the ETOs were “experimental, subject to monitoring and review [with] is an objection process and a right of challenge; they are consistent with Hackney’s policy and with central government guidance and TfL’s advice; they target air pollution and improved safety by inhibiting rat running; they support healthier travel and improved accessibility; they benefit others; the Harrington Hill ETO is limited to school hours in term time; and exemptions are possible”. At §177 he expressed the hope that “an exemption will be explored, if not for individual private vehicles, for vehicles carrying several children and identified by registration number, to be considered on a case by case basis”, something which Hackney had “already expressed willingness” to do. At §179 Kerr J stated that, while he had “ much sympathy for the applicants and other affected children at S School” he had reached his conclusion “without doubt or hesitation. It is striking that if the ETOs were quashed, not just the applicants but others without special needs or any disability and having nothing to do with S School would once again be able to make rat runs through the back streets south of Mount Pleasant Lane and to drive through the barrier at the northern end of it.”

Applicants: Stephen Broach and Eleanor Leydon, instructed by Rook Irwin Sweeney LLP

Kelvin Rutledge QC and Jack Parker, instructed by Hackney Legal Services