Administrative Court: Heather Williams J,  EWHC 3389 (Admin), 15 December 2021
This was a challenge to a decision to close legacy public service pension schemes, including police schemes, and to move all active members to reformed pension schemes. The High Court ruled that the decision was unlawful by reason of failures in the consultation process. In addition, and of more relevance to this blog, she ruled that the decision had been taken in breach of the PSED (s149 Equality Act 2010) because the decision was reached prior to the decision-maker having been provided with a draft of the relevant equality impact assessment or a summary of indirect sex discrimination and other equality-related concerns raised by consultees. As Williams J put it at §171: “the PSED is placed on the Minister personally and what matters is what he or she took into account and knew, not what his officials read or summarised or discussed. As I have indicated when setting out the legal principles, the duty must be fulfilled at a time when a particular policy is under consideration, rather than after it has been adopted. Accordingly, there was a breach of the PSED in this regard”.
Claimant: Andrew Sharland QC and Stephen Kosmin, instructed by Mariel Irvine Solicitors
Defendant and Interested Party: Catherine Callaghan QC , Raymond Hill and Imogen Proud, instructed by Government Legal Department
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.
Administrative court; Fordham J,  EWHC 2108, 28 July 2021
In this case the High Court (Fordham J) ruled that the respondent had discriminated against the claimant, who was profoundly deaf, by failing to provide of British sign language (“BSL”) interpreters for Government live briefings to the public about the Covid-19 pandemic on 21 September 2020 and 12 October 2020. The claimant challenged the failures on those occasions and also sought to challenge the respondent’s continuing refusal to use ‘on-platform’ as distinct from ‘in-screen’ BSL interpreters for briefings. The claimant sought to establish failures of the PSED imposed by s149 of the Equality Act 2010 in respect of the defendant’s ongoing approach to briefings, as well as failures of the duty to make reasonable adjustments imposed by ss20 and 29(7)(a) of the Act. The PSED claim failed as did the reasonable adjustment challenge to ongoing (‘in-screen’ BSL) briefings. The decision includes a comprehensive discussion of the leading authorities on disability discrimination in the context of services/public authorities. Continue reading
Court of Appeal: Underhill VP, Simler and Warby LJJ,  EWCA Civ 348, 15 March 2021
The Court considered an appeal from a High Court decision which had rejected indirect race discrimination and PSED challenges to the application of the Defendant’s ex gratia scheme to support and assist third-country national refugees outside the UK who have fled the conflict in Syria. The case is important, if somewhat disheartening to equality lawyers, for its conclusions on the (limited) extra-territorial effect of the Equality Act 2010. It is worth emphasising that the Court of Appeal’s approval of the High Court’s conclusions on justification were subject to the proviso that the limited evidence on which the High Court was prepared to find in the Defendant’s favour was the result of the way in which the claim had developed post-issue; as Underhill LJ, concurring with Simler LJ leading judgment, stated at §110: “the story is indeed a good illustration of the perils of “rolling judicial review”. Continue reading
Administrative Court: Kerr J,  EWHC 608 (Admin), 17 March 2021
The Claimants unsuccessfully challenged the Defendant’s policy of making deductions at a fixed rate from universal credit (UC) to pay off criminal fines. So far as relevant here, the claim alleged breach of the PSED (s149 Equality Act 2010) and unlawful indirect disability discrimination. The latter claim failed on the evidence, Kerr J pointing out that it would more suitably have been brought in the county court. The Judge did accept that the Defendant had breached the PSED but ruled against the claimants on the basis that compliance with the PSED would very likely have made no difference and that, therefore, s31A of the Senior Courts Act 1981 defeated the claim. Continue reading
Administrative Court: Knowles CBE J,  EWHC 3416 (Admin), 14 December 2020
This was a claim brought by asylum seekers who, their claims having been rejected by the defendant, were not permitted to work or to access public funds while they awaited the defendant’s consideration of their further representations. The defendant had accepted that she was under a duty to provide accommodation or arrange for the provision of accommodation to the claimants under s4(2) Immigration and Asylum Act 1999 (“the 1999 Act”). Continue reading
Administrative Court: Clive Sheldon QC sitting as a Deputy High Court Judge,  EWHC 3376 (Admin), 8 December 2020
This case concerned a renewed application for permission in a PSED challenge to the Relationships Education, Relationships and Sex Education and Health Education (England) Regulations 2019 and associated guidance, which impose obligations upon schools to provide mandatory relationships and health education to all children, this by contrast with sex education from which parents can chose to remove children. Continue reading
Court of Appeal: Sir Terence Etherton MR, Dame Victoria Sharp P and Singh LJ  EWCA Civ 1058, 11 August 2020
The Court of Appeal allowed the Claimant’s appeal against the decision of the Divisional Court that the Defendant had not breached the PSED in its trial of live automated facial recognition technology (“AFR Locate”), by which the Defendant compared images of members of the public captured by surveillance cameras to images of persons on a watchlist. It was argued on appeal that AFR Locate breached Article 8 ECHR, data protection legislation and the PSED. This note is concerned only with the PSED challenge. The decision is an important one in that it underlines the proactive nature of the PSED and the evidence-gathering obligation it places on public authorities.
Divisional Court: Bean LJ and Cavanagh J,  EWHC 1554 (Admin), 15 June 2020
The claimants sought unsuccessfully to challenge the approach taken by the Chancellor to the furlough scheme, arguing in particular that the exclusion of self-employed workers from entitlement to furlough payments and the restriction of payments for non-furloughed workers who could not attend work (because they were symptomatic or self-isolating) to SSP discriminated against self-employed workers contrary to Article 14 EHCR, and indirectly discriminated against women and BAME workers contrary to EU law. They also claimed that the Chancellor had failed to pay regard to the PSED in designing the scheme. Continue reading
The Guardian reported on 19 May 2020 that charities and social enterprise employers had been informed that Treasury plans to wind down the Covid-19 furlough scheme and to end it in October did not ‘currently include an exemption for vulnerable workers’. The plan, as it was reported at that time, was for employers to fund at least 80% of furloughed workers’ wages by August, with (at present) employers being treated equally irrespective of sector or ability of staff to return for reasons of vulnerability to Covid-19. Continue reading