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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Efthimiou, R (On the Application Of) v The City of London  EWHC 1588 (Admin) (23 June 2022)
Cite as:  EWHC 1588 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
(on the application of CHRISTINA EFTHIMIOU
- and –
|THE MAYOR AND COMMONALTY AND CITIZENS OF THE CITY OF LONDON
Clive Sheldon QC and Patrick Halliday (instructed by the Comptroller and City of London Solicitor) for the Defendant
Hearing dates: 23 & 24 February 2022 and further written submissions 4th March 2003
Crown Copyright ©
Mr Justice Cotter:
Introduction paragraphs 1 - 3
The Ponds paragraphs 4 - 5
The Parties paragraphs 6 - 12
Charging at the Ponds paragraphs 13 - 33
Issues paragraph 34
Evidence paragraphs 35 - 44
Claimant's case paragraphs 45 - 51
Defendant's case paragraphs 52 - 56
The Legal Framework paragraphs 57 - 63
Ground One paragraphs 64 - 79
Analysis paragraphs 80 - 88
Substantial disadvantage paragraphs 89 - 104
Reasonable adjustments paragraphs 105 - 131
Ground Two paragraphs 132 - 138
Analysis paragraphs 139 - 146
Ground Three paragraphs 147 - 155
Analysis paragraphs 156 - 162
Conclusion paragraph 163
Mr Justice Cotter:
"7. Hampstead Heath has been in public ownership since the 1871 Act, although its area has been supplemented subsequently. The Corporation of London came to manage Hampstead Heath as a result of the abolition of the General London Council. The Heath and the functions previously exercised by the GLC in relation to it were transferred to the corporation by the London Government Reorganisation (Hampstead Heath) Order 1989 (SI 1989/304). The order required the corporation to appoint the Hampstead Heath Management Committee "for the purposes of giving advice on, and implementing, the City's policies and programmes in relation to the heath lands". The committee must have at least 18 members, of whom at least six must be neither council members nor employees of the corporation. The order also required the appointment of a consultative committee.
8. The functions transferred to the corporation included those set out in the Ministry of Housing and Local Government (Greater London Parks and Open Spaces) Provisional Order 1967. They included the provision and maintenance of outdoor bathing places, the enclosing of such places and the preclusion of entry by unauthorised persons and in the interests of the safety of the public. That order was subsequently confirmed by a similarly entitled 1967 Act. 9. The corporation also has power to provide recreational facilities, and in particular swimming pools, under section 19 of the Local Government (Miscellaneous Provisions) Act 1976. The provision of recreational facilities involves their management, and decisions as to who is to use them, when and under what conditions."
"...the ponds have become a large part of my therapy. Swimming in the ponds has become something that I rely on to help me mentally, emotionally and physically. Since swimming in the ponds, my mood has improved, my immune system has been boosted as I have not been ill as frequently, I feel better in myself and am in less pain. The impact on my long-term illnesses is huge as I do not need to take as much pain relief as I was previously taking."
"over the years [the Claimant] has frequently spoken about how she finds regular cold-water swimming of enormous benefit to her mental and emotional wellbeing and in turn this has helped her manage her chronic pain conditions more effectively and with much less reliance on pharmacological agents."
Charging at the ponds
(a) Health & Safety Executive advice following the death of a swimmer in June 2019 at the Highgate Men's Bathing Pond;
(b) Fulfilling responsibilities and the duty of care towards visitors, lifeguards and wider Heath staff.
(c) Responding to increasing demand for cold water swimming on the Heath.
(d) Ensuring facilities are inclusive and welcoming to a diverse range of visitors.
(e) Establishing a clear and fair charging structure that is consistent with the subsidies for recreation and sport across the Heath to ensure the financial sustainability of the swimming facilities.
"women, the elderly, disabled swimmers and certain ethnic and religious minorities …would be disproportionately affected by these changes"
"The support scheme is wholly inadequate to provide fair and inclusive access to those on low incomes and with disabilities."
So the complaint was that a number of people who had low incomes would be adversely affected by the increased and compulsory charges and that the payment concessions were inadequate.
"The [Defendant's] Open Spaces Department has committed to a further review of Concessions – any charges would be applied from April 2022."
and further that
"the Superintendent has committed to a full review of the 2020/2021 Swimming Season in summer 2021."
a. The 2020 charges have "affected the affordability of swimming" at the ponds for 58% of the respondents;
b. Of those, 25% said they could no longer afford to swim, 26% said they could not afford the upfront cost of a season ticket, and 9% had been helped by family or friends to buy one;
c. As to the specific effect on swimmers with disabilities, around 73 of 600 respondents (12%) identified as disabled. 46 of those respondents (63% of that cohort) stated that their ability to afford swimming had been affected by the charges. Fifteen respondents were disabled and on disability benefits; and all save one said that their ability to afford swimming had been affected by the charges: 93%. This compares with a significantly lower overall percentage of those without disabilities whose ability to afford charges had been affected: 237/600; 46%.
a. Under 16s;
c. Over 60s;
d. Those on Job Seekers Allowance, in receipt of Universal Credit or in receipt of the Personal Independence Payment or with a Disabled Card.
(a) A benchmarking' study of comparable facilities in and around London. That study set out that the prices at the Ponds are cheaper than those of all of the Ponds' comparators; and that only two of the Ponds' comparator facilities offer concessionary discounts, with lesser discounts (of 36% and 20%) than those provided at the Ponds;
(b) the requirement that all departments make 12% savings in the financial year 2021/22;
(c) the unfairness to other 'open spaces' (which were all under huge income pressures) of voting against price increases.
(a) complete concessions for disabled people alternatively some other discount greater than 40%, further;
(b) a direct debit system which would allow season ticket holders to pay in instalments;
(c) the provision of a hardship or support fund.
(a) Has the Defendant failed to make reasonable adjustments under sections 20 and 21 of the Equality Act 2010?
(b) Is the charging policy indirectly discriminatory (contrary to section 19 of the 2010 Act and Article 14 taken with Article 8 and/or Article 1 of the First Protocol of the European Convention on Human Rights)?
"It is my view that there is a significant benefit of cold-water swimming to people's physical and mental health, especially for those swimmers living with a chronic long term medical condition and/or disability. In particular, it is my experience that chronic pain from inflammatory arthropathies and fibromyalgia can be soothed by swimming in cold water and pain relief can be felt for many hours after swimming."
"Charging users for access to sporting and recreational facilities is a long-standing and recognised practice at Hampstead Heath as it is at other public open spaces. That practice is fundamentally fair as it requires a financial contribution from users benefiting from facilities and services, instead of requiring their enjoyment to be subsidised entirely by others."
"These daily charges remained frozen for the next 15 years (although season tickets did increase slightly in price) in contrast to the fees and charges for all other recreational facilities on the Heath, such as the hire of sports pitches and tennis courts, swimming in the Lido etc."
"the management committee felt that self-policing had been shown not to work over the previous 15 years, with a very low level of compliance from swimmers, and it had no confidence that voluntary payments would raise the necessary income for the Charity… In view of the financial shortfall in the meeting the running costs, mandatory charging was the only viable solution for the future of these well-loved facilities, and to ensure there was no reduction in opening times."
"the management committee noted that charges had not increased in 15 years and considered that it was better to bring them up to a realistic level in one go, rather than have them reviewed and significantly changed again in a year's time. A phased approach was felt to be unnecessary and unfair as there was already an annual review process for other fees and charges. It was noted that swimming venues across London charged more and the costs being proposed were considered to be reasonable. Benchmarking against other similar open water facilities indicated that following the increases the adult day price at the bathing ponds would still be the cheapest amongst the comparators, taking into account proposed rises elsewhere."
"the general concessionary rate is benchmarked against other comparable service providers from time to time along with specific fees and charges. I believe that the reason a concessionary rate is offered to disabled customers in particular is to encourage participation, rather than a recognition that they have a low income, as people who are on a low income are already catered for by the separate concession for those on state benefits,"
"if the charity were compelled to take this step then it would inevitably have to review its concessions for other groups, and other activities, resulting in a further potential reduction in its finances…. More generally, the corporation would inevitably have to review the concessions across its other open spaces, and possibly for entirely unrelated services. In that case it would be impossible to quantify the total potential cost and, again it might be necessary to reassess whether certain facilities and services could be maintained at all."
"whilst corporation officers did consider the introduction of monthly direct debit payments for season tickets at the bathing ponds this was discounted because of the additional cost and potential for lost revenues. Direct debit options would inevitably increase the charity's costs, by requiring the administration of a direct debit system: and would give rise to debt collection and bad debt costs in relation to individuals whose payments cannot (because of cancellation of their direct debits, or lack of funds) be collected by direct debit. The scope for individuals to stop paying after initially swimming cheaply on a season ticket would also undermine the swimming charging model, whereby casual swimmers buying session tickets subsidise more regular swimmers who have season tickets."
The Claimant's case
i) Ground 1: that the Defendant has failed to make reasonable adjustments to its charging policy contrary to sections 20 and 21 of the Equality Act 2010;
ii) Ground 2: that the charging policy is indirectly discriminatory contrary to section 19 Equality Act 2010.
iii) Ground 3: the charging policy discriminates against disabled people contrary to Article 14 ECHR taken with Article 8 and/or Article 1 of Protocol 1 ("A1P1").
i) identify the provision, criterion or practice ("PCP") which is said to put the disabled person at the substantial disadvantage;
ii) determine whether the PCP in fact puts disabled persons at a substantial disadvantage;
iii) assess whether the relevant body took such steps as it was reasonable to take to avoid the disadvantage.
"a substantial body of statistical evidence demonstrating that disabled people, of all types, are significantly more likely to live in absolute and relative poverty, be un or underemployed, and have extra costs associated with their disability."
(a) a reduction in concessionary rates (although it was unclear before oral submissions by what amount; and there was a reluctance to give an explanation as to what would be an acceptable charge; presumably because any charge; even £1 a swim would be unaffordable for some) or complete concessions for disabled people, returning the position to that pre 2005;
(b) a direct debit system which would allow season ticket holders to pay in instalments;
(c) the provision of a hardship or support fund (this argument fell away during submissions).
The Defendant's case
"can charge [disabled service users] the same as they charge other people".
(i) to allow swimming to continue at the Ponds in a safe and financially sustainable manner;
(ii) to achieve fairness, by requiring the swimmers who enjoy the Ponds to make a financial contribution (rather than having their swimming entirely subsidised by others);
(iii) to limit the diversion of limited resources away from conservation and protection of the Heath, and the provision of other sports and recreational activities on the Heath.
The Legal Framework
"Section 6 Disability
(1) A person (P) has a disability if –
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.
(2) A reference to a disabled person is a reference to a person who has a disability.
(3) In relation to the protected characteristic of disability—
(a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability;
(b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability."
"(1) A person (A) discriminates against a disabled person (B) if –
(a) A treats B unfavourably because of something arising in consequence of B's disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability."
"(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if—
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.
(3) The relevant protected characteristics are—
"(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.
(2) The duty comprises the following three requirements.
(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.
(6) Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format.
(7) A person (A) who is subject to a duty to make reasonable adjustments is not (subject to express provision to the contrary) entitled to require a disabled person, in relation to whom A is required to comply with the duty, to pay to any extent A's costs of complying with the duty.
(8) A reference in section 21 or 22 or an applicable Schedule to the first, second or third requirement is to be construed in accordance with this section.
(9) In relation to the second requirement, a reference in this section or an applicable Schedule to avoiding a substantial disadvantage includes a reference to —
(a)removing the physical feature in question,
(b)altering it, or
(c)providing a reasonable means of avoiding it.
(10) A reference in this section, section 21 or 22 or an applicable Schedule (apart from paragraphs 2 to 4 of Schedule 4) to a physical feature is a reference to—
(a)a feature arising from the design or construction of a building,
(b)a feature of an approach to, exit from or access to a building,
(c)a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises, or
(d)any other physical element or quality.
(11) A reference in this section, section 21 or 22 or an applicable Schedule to an auxiliary aid includes a reference to an auxiliary service.
(12) A reference in this section or an applicable Schedule to chattels is to be read, in relation to Scotland, as a reference to moveable property.
(13) The applicable Schedule is, in relation to the Part of this Act specified in the first column of the Table, the Schedule specified in the second column."
"(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.
(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person."
"(1) A person (a "service-provider") concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.
(2) A service-provider (A) must not, in providing the service, discriminate against a person (B)—
(a) as to the terms on which A provides the service to B;
(b) by terminating the provision of the service to B;
(c) by subjecting B to any other detriment.
(3) A service-provider must not, in relation to the provision of the service, harass—
(a) a person requiring the service, or
(b) a person to whom the service-provider provides the service.
(4) A service-provider must not victimise a person requiring the service by not providing the person with the service.
(5) A service-provider (A) must not, in providing the service, victimise a person (B)—
(a) as to the terms on which A provides the service to B;
(b) by terminating the provision of the service to B;
(c) by subjecting B to any other detriment.
(6) A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation.
(7) A duty to make reasonable adjustments applies to—
(a) a service-provider (and see also section 55(7));
(b) a person who exercises a public function that is not the provision of a service to the public or a section of the public."
"the first requirement, is where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. "
i) Firstly to identify the provision, criterion or practice ("PCP") which is said to put the disabled person at the substantial disadvantage;
ii) Secondly to determine whether the PCP in fact puts disabled persons at a substantial disadvantage;
iii) Thirdly to assess whether the relevant body took such steps as it was reasonable to take to avoid the disadvantage.
a. The overall high level of the charges, bearing in mind the historical and unique context of the ponds;
b. the compulsory nature of the charges;
c. the lack of an affordable concession scheme for those with disabilities with a low income (£2.40 per swim and no complete exemptions at given times, as with under 16s and over 60s);
d. the disproportionately high increase of concessionary season ticket charges;
e. the inability to spread out the costs of season tickets for disabled people or people on low incomes via payment by instalments.
a. grant complete concessions to disabled swimmers;
b. put in place lower concessionary one-off or season ticket charges which are "genuinely affordable";
c. provide an option for monthly direct debits for concessionary season tickets so the cost can be spread out.
(a) the charging policy did not put disabled persons at a substantial disadvantage in comparison with persons who are not disabled;
(b) it would not be reasonable for the Defendant to have to provide an even larger discount to disabled swimmers, or to charge them nothing at all, as the Claimant says it must.
(i) Charging all users for access to sporting and recreational facilities in public open spaces is a longstanding and recognised practice both in the Heath and nationwide. That practice is fundamentally fair.
(ii) It requires a costs contribution from service users benefitting from facilities and services instead of requiring their enjoyment of those facilities and services to be subsided entirely by others.
(iii) The charges at the Ponds are modest. They are lower than any of the fees charged at comparable facilities
(iv) The discounts already offered to disabled swimmers are very substantial. Most comparable facilities do not offer any concessionary rates. Those that do offer concessions do so at a lesser discount than that available at the Ponds.
(v) The charges are already set at a level by which swimming at the Ponds is substantially subsidised by the Charity.
(vi) The more swimming is subsidised, the less funding is available to support other facilities and activities across the Heath. This was a key consideration for the Management Committee in deciding to adopt the 2020 Charging Policy, and to maintain it (with increases mainly based on inflation) in February 2021.
(vii) The logical conclusion of the Claimant's case is that service-providers cannot lawfully make charges to disabled people. That position is clearly unarguable.
"at a substantial disadvantage ... in comparison with persons who are not disabled."
"the charging regime discriminates against disabled people a significant proportion of which are of limited income"
can be reframed as
"the charging regime which includes a 40% discount for those of limited income discriminates against disabled people; a significant proportion of which are of limited income".
If this is taken as the proposition then it becomes necessary to consider why, if the barrier to access is having limited income i.e. purely financial, those who are disabled (taken generally) suffer a substantial disadvantage in comparison to people who are not disabled. If the problem is solely a lack of personal income to pay the charge, why does it matter if a person is disabled or not?
"The Claimants submit that the PCP is the rate itself. Mr Collins QC says that, given that female and BAME employees are disproportionately represented in the lowest earning groups, they are disproportionately likely to be unable to have the resources to manage with such a low income, and are accordingly disadvantaged by the rate of SSP (either losing income or going to work when they ought not to do so). This disadvantage is exacerbated, in the case of BAME workers, in light of their poorer outcomes for coronavirus.
In our judgment, this argument is misconceived. The rate of SSP is not a PCP which places certain categories of employees at a particular disadvantage. The classic PCP which does so is a requirement that must be satisfied in order for persons to qualify for a particular opportunity or benefit, such as a height requirement in order to be permitted to join a police force, or the requirement to be a full-time worker in order to qualify for a pension. These examples place women at a particular disadvantage because women are less likely than men to be tall, and are more likely to be part-time workers (because of child-care responsibilities). The rate of SSP is not a barrier or gateway in this sense. It is a sum that is paid, in exactly the same way, to everyone who receives SSP, regardless of their protected characteristics. It does not place women or BAME employees at a particular disadvantage: everyone is treated the same."
And at paragraph 149 that:
"In our judgment, the Defendant is right to submit the Claimants do not rely upon any disadvantage that is caused by the rate of SSP itself. Rather, they rely upon an alleged disadvantage, the absence of other financial resources, which is not caused or related to the rate of SSP in any way. This does not turn the rate of SSP into a PCP which places women or BAME employees at a particular disadvantage…"
Whilst the claim in Adiatu concerned indirect discrimination (ground 2 in this case); the reasoning is equally applicable to the section 20 (3) requirement that the PCP puts a disabled person at a substantial disadvantage when compared to non-disabled people. Mr Sheldon QC's submission was that the first ground falls at this initial hurdle as the Claimant cannot establish a substantial disadvantage arising from the PCP. All those on a low income/limited means have a 40% concession to reflect limited budgets. It does not place disabled people at a particular disadvantage: everyone is treated the same. There is no difference in aim, or result, between a disabled person on benefits with £10 disposable income a week after "necessities" and a non-disabled person on benefits with £10 disposable income after "necessities" as regards being able to pay the charges.
"What is a disadvantage?
"Disadvantage" is not defined by the Act. It could include denial of an opportunity choice, deterrence, rejection or exclusion. The courts have found that "detriment", a similar concept, is something that a reasonable person would complain about, so an unjustified sense of grievance would not qualify."
He also relied on guidance published on the Commission's website which states
"Even if the person or organisation charges other people for a service, such as delivering something, if the reason they are providing the service to you is as a reasonable adjustment, they must not charge you for it. But if you are using the service in exactly the same way as other customers, clients, service users or members, then they can charge you the same as they charge other people." (underlining added).
(a) What it is reasonable for a particular service provider to do depends on all the circumstances of the case and will vary according to the type of service provided, the nature of the service, its size and resources.
(b) Service providers are given an appropriate amount of latitude.
(c) Service providers are not required to fundamentally alter the nature of the service provided.
(d) Where there is an adjustment that the service provider could reasonably put in place which would remove or reduce the substantial disadvantage, it is not sufficient for the service provider to take some lesser step.
(e) The cost of making an adjustment may be relevant to its reasonableness. However a bald assertion, with no more, that an adjustment will be too expensive will not suffice. Some assessment of the cost of the relevant adjustment is required to discharge the duty.
(f) Although the reasonable adjustments duty is one of outcome, rather than procedure, where there has been inadequate consultation, engagement and/or monitoring meaning that there has been a failure to identify or properly consider a potential adjustment or set of adjustments, this will weigh against the Defendant and in favour of the reasonableness of said adjustment.
i) Lower or complete concessionary charges for all disabled swimmers. Ms Leventhal QC prayed in aid of this adjustment the fact that the Defendant has offered concessions to numerous other groups (for example, free swims at certain times for under 16s and over 60s, schools and charities supporting migrant and refugee children) and has stated it "welcome[s] feedback on underrepresented groups and organisations, who would benefit from free and discounted swimming". Also she relied on the fact that some other local authorities do offer complete concessions to some groups, as seen in the Defendant's price benchmarking report, for example, in Hackney, residents who are aged under 18 and over 60, disabled or a carer, can swim for free at several leisure centres all year round.
ii) A direct debit system for disabled season ticket holders which would enable the costs to be spread out throughout the year. Ms Leventhal QC submitted that such an adjustment was plainly reasonable. She submitted that the Defendant had undertaken to consider this step in the consultation process, but no evidence of consideration or proposed cost has been forthcoming. Also other clubs and activities on the Heath have raised it as a possibility to ameliorate financial inaccessibility. Further and very importantly the Defendant already operates a direct debit scheme for rent, business rates and council tax in its capacity as a local authority and annual membership for the tennis courts on the Heath (which is administered by a third party) can be made by direct debit.
iii) A hardship or support fund. Such an adjustment was argued to be reasonable because it was in fact a proposal of the Defendant's own at the early stage of decision making. It was expressly relied upon in the March 2020 decision as a mitigation against the effects of a charging regime:
"The Open Spaces Department is currently undertaking a review of Concessions and this will include the consideration of a support fund to ensure the Open Spaces facilities remain financially inclusive."
During submissions this argument was not advanced with any conviction as it was recognised that was not a viable reasonable adjustment to advance given the obvious difficulties in setting (by requirement) a funding level and also the criteria for a discretionary scheme (before consideration of the costs of administration). I need not deal with it further.
"would mean that a vast range of service providers were required to provide goods, services and facilities to disabled persons for free, for very substantially reduced prices based on individual means-testing; and that, since most businesses charge the same prices to disabled and non-disabled customers, standard business practices are giving rise to endemic unlawful discrimination across the UK."
(1) Charging for all users for access to sporting and recreational facilities in public open spaces is a long-standing and recognised practice (although the Ponds had free access to all swimmers before 2005).
(2) The practice is fundamentally fair. It requires a cost contribution from those who use the facilities/services. It would be intrinsically unfair for a particular benefit to be subsidised completely or disproportionately by others. Further subsidisation of swimming would reduce the funding available to other facilities and activities across the Heath. This was a key consideration for the Management Committee in setting prices in March 2020 and February 2021. The Charity faces considerable funding pressures. It has been seeking ways to cut expenditure.
(3) The charges at the ponds are modest and benchmarking against other similar open water facilities shows them to be lower than any of the fees charged at comparable facilities.
(4) The charges are already set at a level by which swimming at the Ponds is substantially subsidised by the Charity.
(5) The Defendant has already made a very substantial discount available to disabled swimmers regardless of financial means. The 40% discount is aligned with the general concessionary rate available on the Heath and at other open spaces managed by the Defendant, which has itself been set through benchmarking against other comparable service providers. Most comparable facilities do not offer any concessionary rates. As to those that do, they offer lesser concessions than those available at the Ponds.
(6) The discounts provided to all disabled swimmers are the same as those offered to non-disabled swimmers with limited financial means (i.e. those on state welfare benefits). It would not be reasonable to require the Defendant to charge disabled swimmers with lower incomes even less than non-disabled swimmers with limited means.
(7) The Claimant proposes the removal/ further reduction of charges for all disabled persons. However many disabled swimmers will be comfortable financially, and some will be wealthy. It is clearly not reasonable to require the Defendant to charge even less to such disabled persons. That would entail superior access to the Ponds for disabled swimmers, which is not the policy of the legislation.
(8) Although it is not possible to give a precise estimate of how much it would cost the Charity to provide a complete concession for disabled swimmers, this would certainly cost the Charity "tens of thousands of pounds per year".
(9) If the Charity were to be compelled to remove or reduce charges for disabled people it would inevitably have to consider an equivalent step for other activities, resulting in a further potential reduction in its income (which could not reasonably be assessed in detail).
"the duty to make reasonable adjustments places service providers under a responsibility to take such steps as it is reasonable, in all circumstances of the case, to have to take in order to make adjustments. The Act does not specify that any particular factors should be taken into account. What is a reasonable step for a particular service provider to have to take depends on all the circumstances of the case. It will vary according to:
- the type of service being provided
- the nature of the service provider and its size and resources; and
- the effect of the disability on the individual disabled person."
a) the service provider applies the relevant provision, criterion or practice to everyone in the relevant group;
b) that provision, criterion or practice puts people who share the particular service user's protected characteristic at a particular disadvantage when compared with people who do not have that characteristic;
c) the service provider cannot show that the provision, criterion or practice is justified as a proportionate means of achieving a legitimate aim.
"The Claimants rely upon the judgment of the Supreme Court in Essop v Home Office  UKSC 27. The claim in Essop concerned an assessment process for promotion in the Civil Service which resulted in lower pass rates for BAME candidates than white candidates. No-one knew why. In Essop, the Supreme Court made clear that if the PCP caused a particular disadvantage for those with a protected characteristic, it was not necessary for the court or tribunal to go further and identify why this is so. Baroness Hale gave the example that there is no generally accepted explanation for why women have on average achieved lower grades as chess players than men, but a requirement to hold a high chess grade will put them at a disadvantage (judgment, paragraph 24). However, Baroness Hale also made clear that the law of indirect discrimination was intended to prohibit PCPs which caused the particular disadvantage: see paragraph 26. At paragraph 25, Baroness Hale said that:
"….the prohibition of direct discrimination aims to achieve equality of treatment. Indirect discrimination assumes equality of treatment - the PCP is applied indiscriminately to all - but aims to achieve a level playing field, where people sharing a particular protected characteristic are not subjected to requirements which many of them cannot meet but which cannot be shown to be justified. The prohibition of indirect discrimination thus aims to achieve equality of results in the absence of such justification. It is dealing with hidden barriers which are not easy to anticipate or to spot."
In relation to the rate of SSP, there is no "hidden barrier". Essop is 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. In our judgment, the Defendant is right to submit the Claimants do not rely upon any disadvantage that is caused by the rate of SSP itself. Rather, they rely upon an alleged disadvantage, the absence of other financial resources, which is not caused or related to the rate of SSP in any way. This does not turn the rate of SSP into a PCP which places women or BAME employees at a particular disadvantage.."
"Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, or other status."
"Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law."
(i) a difference in treatment within the ambit of a substantive Convention right;
(ii) of persons in analogous situations;
(iii) that does not pursue a legitimate aim; or
(iv) where there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.
(i) In respect of Article 8, Zehnalová and Zehnal v. The Czech Republic (2002) App No 38621/97 establishes that where inaccessibility affects a disabled person's life "in such a way as to interfere with her right to personal development and her right to establish and develop relationships with other human beings and the outside world" such that there is a "special link between the access to the [service] in question and the particular needs of her private life" then a lack of accessibility can fall within Article 8. In this case there is such a direct link. The ponds are an important part of the Claimant's therapy; she relies on them "mentally, emotionally and physically" and has reported the benefits of accessing them to her GP over numerous years. They allow her to manage her chronic pain conditions more effectively. Access to the ponds is not, for example, mere access to a beach on holiday.
(ii) In respect of A1P1, a charging policy that requires a contribution from service users (that the state, via the Defendant, imposes under a power, rather than a duty) may fall within the ambit of A1P1, see generally R (SH) v. Norfolk County Council  EWHC 3436. For example, contributions towards the collection of taxes fall within A1P1. In NKM v. Hungary  STC 1104, the ECtHR said "the court further reiterates that the levying of taxes constitutes in principle an interference with the right guaranteed by [A1P1] and that such interference may be justified…however, this issue is nonetheless within the court's control". Although the Pond charges are not directly compulsorily imposed (like taxes), they are an essential service for the Claimant to accept as part of her health (as was the case in SH). Further, the effect of the charging scheme impacts on the Claimant's financial resources and plainly falls within the ambit of A1P1 as a result.
Note 1 The Claimant’s witness Lisa Rose stated “the raise in concessions is discrimination and impacts groups of people who need the space most like women and disabled people”. [Back] Note 2 Since the 1970s the Ministry of Housing, Communities and Local Government and its predecessors have calculated local measures of deprivation in England. This reveals concentrations of deprivation in large urban conurbations, areas that have historically had large heavy industry manufacturing and/or mining sectors (such as Birmingham, Nottingham, Hartlepool), coastal towns (such as Blackpool or Hastings), and parts of east London.
[Back] Note 3 The December 2021 survey had a specific question about whether the pandemic had affected income; with a significant proportion of responses indicating that income had reduced as a result. [Back] Note 4 There was a reference to the fact that “The Defendant has offered further or complete concessions to numerous other groups (for example free swims for under 16s and over 60s and charities supporting migrant and refugee children” in support of the argument that lower or complete concessionary charges for disabled swimmers was a reasonable adjustment; see skeleton paragraph 44. [Back]
Note 1 The Claimant’s witness Lisa Rose stated “the raise in concessions is discrimination and impacts groups of people who need the space most like women and disabled people”. [Back]
Note 2 Since the 1970s the Ministry of Housing, Communities and Local Government and its predecessors have calculated local measures of deprivation in England. This reveals concentrations of deprivation in large urban conurbations, areas that have historically had large heavy industry manufacturing and/or mining sectors (such as Birmingham, Nottingham, Hartlepool), coastal towns (such as Blackpool or Hastings), and parts of east London. [Back]
Note 3 The December 2021 survey had a specific question about whether the pandemic had affected income; with a significant proportion of responses indicating that income had reduced as a result. [Back]
Note 4 There was a reference to the fact that “The Defendant has offered further or complete concessions to numerous other groups (for example free swims for under 16s and over 60s and charities supporting migrant and refugee children” in support of the argument that lower or complete concessionary charges for disabled swimmers was a reasonable adjustment; see skeleton paragraph 44. [Back]