Court of Appeal; Sir Keith Lindblom, Males and Elisabeth Laing LJJ,  EWCA Civ 457, 5 April 2022
The Court of Appeal dismissed an appeal, based on the PSED, from the order of Kerr LJ refusing the claimant’s application for statutory and judicial review of experimental traffic orders (ETOs) creating Low Traffic Neighbourhoods which had been made by the respondent.
The claimant, who was severely physically disabled, argued that the effect of the orders was to make her life more difficult. The Court reviewed the “ample authority” on the PSED and drew attention to five points “especially relevant here (§10)”:
“First, section 149 does not require a substantive result [citing R (Baker) v Secretary of State for Communities and Local Government  EWCA Civ 141;  PTSR 809 § 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 [citing R (Brown) v Secretary of State for Work and Pensions  EWHC 3158;  PTSR 1506, §89]… Third, like other public law duties, it implies a duty of reasonable enquiry [citing Secretary of State for Education and Science v Tameside Metropolitan Borough Council  A.C. 1014]. Fourth, it requires a decision-maker to understand the obvious equality impacts of a decision before adopting a policy[citing R (Bailey) v Brent London Borough Council  EWCA Civ 1586; §§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 [citing the judgment of Davis LJ in Bailey §102].”
The Court went on at §11 to refer to the eight principles identified by the Court of Appeal in R (Bracking) v Secretary of State for Work and Pensions  EWCA Civ 1345 §26, five (3, 4, 5, 6 and 8) of which had been cited in argument. The Court stated at §13 that these principles were not requirements and that “these glosses are no substitute for the language of the statute” and at §14 -15 that previous decisions about section 149 must be taken in their contexts and that “statutory provisions must always be read as they are – useful as their interpretation by judges can be” (citing R (Good Law Project and Runnymede Trust) v The Prime Minister and Secretary of State for Health and Social Care  EWHC 298 (Admin); R (End Violence Against Women Coalition) v DPP  EWCA Civ 350; Powell v Dacorum Borough Council  EWCA Civ 23; Haque v Hackney London Borough Council  EWCA Civ 4 §41. At §16 the Court cited the Divisional Court in R. (Hollow) v Surrey County Council  EWHC 618 (Admin) to the effect that “what constitutes “due regard” … will depend on the circumstances, particularly, the stage that the decision-making process has reached” and that “the nature of the duty to have “due regard” is shaped by the function being exercised, and not the other way round …” (§80).
The claimant challenged the fact that the ETOs were made on the basis that their impact on people with disabilities would be monitored and reviewed, which they were, rather than on the basis of detailed analysis carried out prior to their introduction. Kerr J had been satisfied that the respondent’s approach did not amount to ex post facto analysis, there having been some consideration in advance and a commitment to further analysis and review. He had rejected the argument that the respondent’s approach delayed the “performance of the [PSED] duty … to another day, when it was too late to perform it because the relevant function had already been exercised… part of the performance [of the PSED] was the director’s acknowledgment of his expectation that there would be detailed future [equality impact assessments] before any decision about permanence.” Kerr J had also concluded that there was “nothing in section 149 of the 2010 Act which prevents, in an appropriate case, performance of the duty by means of a conscious decision to undertake equality assessment on a “rolling” basis”, warning that rolling assessments would not be suitable in all cases (and particularly in the case of “one off” functions) but that they may be appropriate with “evolutionary” functions. In the instant case the rolling assessment was justified by (§166) “unusual factual features: the urgency expressed in the statutory guidance, the near stasis of public transport and the need to restrain vehicle traffic in residential areas to allow walking and cycling to flourish. Those factors (all caused by the prevalence of the virus) propelled [the council] to curtail its research and truncate the timescale, using [ETOs]. Had those factors been absent, [the] approach to equality assessment might not have passed the “due regard” test.”
It was argued on appeal that the “rolling review” could not mend what was said to be a failure prior to the implementation of the ETOs to comply with the PSED, and that the respondent ought to have used its experience of the “blue badge” scheme to identify the likely impacts on people with disabilities; to have consulted more widely among groups representing disabled people and /or to have made specific exemptions for disabled persons. The claimant argued that the ETOs, which were to remain in place for 18 months, could not properly be regarded as “experimental” or, by contrast with the measure challenged in Hollow, “inchoate”. She argued, further, that the decision-maker in this case had failed to address his own mind to the equality implications of the ETOs but had instead relied on others to have done so, contrary to the dicta in Bracking.
These arguments were dismissed, the court ruling that the concept of “due regard” was “highly sensitive to facts and context” (§56) and varied:
“perhaps widely, according to circumstances: for example, the subject-matter of the decision being made, the timing of that decision, its place in a sequence of decision-making to which it belongs, the period for which it will be in effect, the nature and scale of its potential consequences, and so forth. When the decision comes at an early stage in a series of decisions, and will not fix once and for all the impacts on people with protected characteristics, the level of assessment required to qualify as ‘due regard’ is likely to be less demanding than if the decision is final or permanent. This may especially be so if the decision is also experimental, and is itself conducive to a more robust assessment of equality impacts later in the process.”
The main points in the instant case was that the ETOs were of statutorily limited duration and were “a genuine test of the measures proposed, conducted in good faith” (§59); they were introduced under conditions of urgency and were designed with limited procedural hurdles (§§60-61), they were intended to generate information about their effects with full consultation to precede the introduction of any indefinite measures (§§62-63; and the PSED had been taken into account in introducing the ETOs albeit that equality impact assessments had not yet been completed (§64). The decision maker had clearly directed his mind to the PSED questions and had, in the Court’s opinion, had “due regard” thereto. One of the purposes of the ETOs was “to enable a better assessment to be made of the potential effects of the Low Traffic Neighbourhoods on people with protected characteristics” (§68) and (§69) “Although some of the[ir] equality impacts of … could have been predicted, it is clear that there were cogent reasons for the council to use the experiment to gather data about the impacts of the scheme, good and bad, and to use that information in deciding how to balance those impacts”. It was important that the Court did not apply too demanding a standard to the “due regard” requirement where, as here “the measures in question were designed to give effect to urgent guidance issued by the Government during a pandemic, were demonstrably influenced by that urgent guidance and were also deliberately and formally experimental in nature” (§70). Kerr J had been correct to reject the PSED challenge despite the fact that the ETOs were made without the respondent having “grapple[d] with the point that people with disabilities who rely on a car would have longer journey times, and might experience other disadvantages, as a result of the measures proposed.”
The Court rejected the claim that the decision-maker had unlawfully delegated the s149 analysis, ruling that he had “consciously directed his own mind to the matters he had to deal with” and “was demonstrably aware of the considerations relevant to the statutory equality needs”, though he “could legitimately rely on what he was told about ‘the project team’s assessment’ when deciding whether the council should proceed with an experiment, into which equality impact assessments would be integrated as a necessary component” (§76).
The Court stated that Kerr J had been right to caveat his approval in the instant case of the respondent’s “rolling assessment”. Further, “urgency alone – even the urgency of a pandemic – will not excuse a failure to discharge the “due regard” duty” (§71).
Claimant: Tim Buley QC, instructed by Scott-Moncrieff & Associates LLP
Respondent: Timothy Mould QC, instructed by Lambeth Legal Services