King’s Bench Division, Administrative Court, HHJ Sephton KC  EWHC 2440 (Admin), 30 September 2022
This was an unusual case in which the claimant, a prisoner who was paralysed from the neck down, without any teeth and unable to chew, sought to challenge restrictions imposed by the defendant on his diet. The defendant, which was responsible for feeding the claimant, sought to refuse him access to solid foods because of a high risk of choking. The unsuccessful challenge was brought on a number of grounds including under the EqA. Continue reading
Queen’s Bench Division, Administrative Court, Planning Court, Lieven J,  EWHC 1635 (Admin), 24 June 2022
The Court ruled that the PSED had not been complied with by Lord Greenhalgh, the relevant Minister, when he granted permission in August 2021 for the use of Napier Barracks in Kent as accommodation for asylum seekers until March 2025. While the minister had recorded his having taken into account an Equality Impact Assessment (‘EqIA’) drawn up on 20 September 2020 and updated on 15 July 2021, that EIA had been based on the premise that the use of the barracks would continue only until 21 September 2021. Continue reading
Queen’s Bench Division, Administrative Court, Kerr J,  EWHC 2298 (Admin), 7 September 2022
The High Court ruled that the exclusion from entitlement to a bereavement support payment (‘BSP’) of the widower of a woman who had, by reason of disability, paid no national insurance contributions (because she was unable to work) breached Article 14 ECHR read with A1P1. In doing so the judge reached the same conclusion as Northern Ireland’s Court of Appeal had in O’Donnell v. Department for Communities  NICA 36. Continue reading
Queen’s Bench Division, Administrative Court, Lang J,  EWHC 2007 (Admin), 28 July 2022
This case concerned a challenge to the arrangements for providing access to publicly funded legal services for detainees at the women’s immigration removal centre (IRC) of Derwentside, County Durham. The IRC is located some distance from any airport of major city and, as a result of difficulties in securing solicitors to cover the publicly funded Detained Duty Advice Scheme (DDAS), interim arrangements had been put in place under which detainees at Derwentside were not entitled to in-person visits under the DDAS between December 2021 and July 2022. By contrast, detainees held in male IRCs were entitled to face-to-face DDAS visits during this period. Continue reading
Queen’s Bench Division, Administrative Court, Cotter J,  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. Continue reading
Queen’s Bench Division (Divisional Court): Singh LJ and Swift J,  EWHC 298 (Admin),15 February 2022
This decision is most interesting for its approach to standing, in particular that the Good Law Project’s roving approach to JR challenges did not provide it with standing for such challenges. The Court also rejected the claim of the Runnymeade Trust, which it accepted did have standing on a PSED challenge, to standing to challenge as indirectly discriminatory the many informal appointments to positions of responsibility which characterised the approach of the UK Government’s approach under the pandemic. Such claims were in the Divisional Court’s view properly brought by individual litigants who sought to challenge their own exclusion from consideration rather than by either claimant, and were not the proper subject of judicial review. Having decided that the Runnymede Trust did have standing to challenge the defendant’s compliance with the PSED the court concluded that the duty had been breached in relation to two of the appointments. Continue reading
Administrative Court; Foster J,  EWHC 15 (Admin), 6 January 2022
The claimant challenged the Education (Student Support) Regulations 2011 (as amended) on the basis that they breached Article 14 ECHR read with A2P1 by restricting eligibility for student finance to individuals to would-be higher education students who were “settled in the United Kingdom” for immigration purposes on the first day of the first academic year of their course. The claimant, whose academic course started on 1 September 2020, had made an application for settled status. He had, in respect of previous applications, used the Home Office Super Priority visa application service which granted visas within 24 hours on payment of a fee, the normal turnaround offered by the Home Office for disposal of an Indefinite Leave To Remain (“ILR”) Visa application being six months. The Super Priority scheme, and a related Priority scheme, were withdrawn by the Home Office with only a few days’ notice on 31 March 2020, unknown to the Claimant. He became eligible to apply for ILR on 14 April and did so on 17 May 2020, a day before his previous visa was due to expire. He applied for student finance on 24 August 2020. He was granted ILR on 23 November 2020 but was advised by letter of 18 December 2020 that he was ineligible for student finance. After having unsuccessfully appealed this decision he sought judicial review. Foster J ruled that the discrimination in issue fell within A2P1, that the claimant was entitled to rely on the broad approach to “status” approved by the Supreme Court in R (SC) v Secretary of State for Work and Pensions  UKSC 26,  3 WLR 428 (see previous post), and that the discrimination was unjustified and unlawful.
Administrative Court; Bourne J,  EWHC 3415 (Admin), 16 December 2021
The claimants relied, inter alia, on Articles 14 and 8 in challenging decisions to deny them citizenship. Both were wrongfully prevented from entering the UK at a time when they had or were entitled to indefinite leave to remain in the UK (“ILR”), subsequently applied under the Windrush Scheme and were granted ILR before applying for British citizenship. These applications were denied on the basis that they failed to satisfy Schedule 1 para 1(2)(a) of the British Nationality Act 1981, which requires that a citizenship applicant has been physically present in the UK five years prior to the application (“the 5 year rule”). The question for the Court was whether the 5 year rule could be challenged by reason of the HRA. Bourne J ruled that the absence of discretion or flexibility within the five year rule amounted to Thlimmenos discrimination against the claimants contrary to Article 14 in conjunction with Article 8, but that a Convention compatible reading was possible under section 3 HRA by permitting the defendant to deem that an individual had complied with the 5 year rule..
Queen’s Bench Division (Planning Court): Kerr J,  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  UKSC 26,  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.
QBD Planning Court: Pepperall J,  EWHC 1650 (Admin) 17 June 2021
The claimant, a settled Romany Gypsy, unsuccessfully sought to challenge Department for Communities & Local Government planning policy issued in August 2015 which removed from the definition of “Gypsies and Travellers” those who had permanently ceased to travel by reason of health, education or old age. She also sought to challenge a decision of the inspector appointed by the Secretary of State to dismiss an appeal against the refusal of planning permission, which refusal flowed from the fact that neither Ms Smith nor any member of her family was recognised as a Gypsy under the policy. The claimant argued, inter alia, that the planning definition in the 2015 policy unlawfully discriminated against elderly and disabled Gypsies, relying both on the ECHR and the EqA. Pepperall J accepted that the policy impacted disparately on the elderly and disabled Gypsies, and acknowledged the extreme disadvantage experienced by Gypsies and Travellers in this and other contexts. He ruled, however, that the policy was justified taking into account the provision made by the planning system as a whole for the “particular needs of Gypsies and Travellers who have retired from travelling”. Continue reading