Queen’s Bench Division, Administrative Court, Cotter J, [2022] EWHC 1588 (Admin), 23 June 2022

This was a challenge brought under the EqA and the HRA to increases in the charges for use of Hampstead’s Ladies’ Pond. The claim was that the increased charges breached the defendant’s duty to make reasonable adjustments for disabled persons under ss20, 21 & 29 EqA and indirect discrimination against disabled people contrary to s19 EqA and Article 14 ECHR read with Article 8 and/or Article 1 Protocol 1.

The claimant, who was in her late 50s, was a frequent user of the ladies’ pond. She was disabled by rheumatoid arthritis, chronic obstructive pulmonary disease (“COPD”) and depression and was dependent on state benefits. Her evidence (supported by that of her GP) was that cold-water swimming was important for her physical and mental health and that the increased charges made it very difficult for her to continue to use the pond. Swimming at the pond had been free until 2005 with payment not enforced until 2020 when charges were fixed at were £4 for a session ticket, £66 for a 6-month season ticket and £125 for a 12-month season ticket, concessions being fixed at £2.40, £33 and £66 respectively and free swimming being permitted early in the morning for under 16s and over 60s. Carers accompanying disabled swimmers were not charged. These prices were expected to result in a situation in which the defendants bore 42% of the approx. £1M cost of operating the pool. Prices rose marginally in 2021, the defendants’ case being that they remained well below comparable facilities.

The reasonable adjustment claim failed because the judge did not accept that the operation of a regime with a 40% discount for those on limited income substantially disadvantaged people with disabilities (§101), rejecting the claimant’s argument that the question should have been whether operating the full price scheme placed disabled people at a substantial disadvantage (§83).

Cotter J was critical of the suggestion that disabled people should be granted concessions over and above those granted to others with equally limited income, also that concessions for disabled swimmers should be provided irrespective of their income (§§84-87). The evidence did not establish that disabled people were more significantly disadvantaged by the charges than other people on limited incomes; nor did it establish that those with disabilities benefitted more from cold water swimming than others (§§97-100).

Cotter J went on to rule that, in any event, it would not have been reasonable to adjust the charging scheme further to reduce fees for the disabled or to allow season ticket holders to pay in instalments. The judge characterised the first of these arguments as amounting (as it was put) to a requirement that all disabled people (who had been required to pay to swim since 2005) should be provided with free access to the ladies’ pond irrespective of income. He ruled that “as a general principle, charging for leisure facilities is fundamentally fair and reasonable. It requires a cost contribution from those who use the relevant facilities/services to recognise that the provision of the service has a cost to the provider. Also, it is a choice to use a particular leisure facility and it would be intrinsically unfair and unreasonable for swimming to be subsidised completely or disproportionately by the users of other facilities” equally beneficial for health and well-being (§119). At §120 the judge pointed out that the charges were “modest” and “heavily subsidised” and at §§124-§25 that the adjustments sought would have consequences for other services provided by the defendants. Allowing the season ticket to be paid for in instalments was likely to result in a significant drop in income as many swimmers would pay only during the summer months and then cancel the direct debit (§128).

Cotter J also rejected the claimant’s indirect discrimination claim, applying the dicta of the Divisional Court in R (Adiatu) v HM Treasury [2020] EWHC 1554 (see previous post) §§148 and 149 that the decision of the Supreme Court in Essop v Home Office [2017] UKSC 27 was “not authority for the proposition that something places those with protected characteristics at a particular disadvantage because their circumstances, unconnected with the PCP, are less favourable than those of others”. At §140 Judge Cotter stated that the necessary casual connection had not been shown between the PCP and the protected characteristic of disability: “The root problem is a lack of disposable personal income, which is unconnected to the PCP and the disabled and non-disabled (who all receive a concession if on benefits) are equally affected”.

Cotter J maintained the earlier refusal of permission on the HRA claim, finding that the treatment complained of did not fall within the ambit of Article 8 or A1P1 and that, if it did, any discrimination was justified. As to the first, the Judge relied on the decision of the ECtHR in Zehnalová and Zehnal v The Czech Republic that “Article 8 of the Convention cannot be taken to be generally applicable each time the first applicant’s everyday life is disrupted” (§157). Nor did “the mere fact that the Claimant is required to pay for a service, which is not a welfare or social care service … bring the claim within A1P1” (§158).

Claimant: Zoe Leventhal QC and Katy Sheridan, instructed by Leigh Day

Respondent: Clive Sheldon QC and Patrick Halliday, instructed by the Comptroller and City of London Solicitor