Making a mountain out of a Maida Hill

In City of Westminster v (1) Persons Unknown (2) Theophile & (3) Gill Westminster Council applied for an injunction pursuant to s222 of the Local Government Act 1972 and s1 of the Anti-Social Behaviour Act 2014, in relation to Maida Hill Square, London W9. It was alleged that the Defendants, including Mr Theophile, had been congregating in the square causing harassment, alarm and distress – by playing music, drinking alcohol, shouting, swearing, obstructing the highway, and urinating and defecating.

An interim injunction was granted, and the trial of the final injunction is due to take place in August 2022.

But a preliminary issue arose: Mr Theophile is 74 years old, and of African-Caribbean descent. He said that the Maida Hill Square was a gathering point for his community, where dominos and backgammon was played, and informal support was provided to those experiencing social isolation and poor mental health. He argued that the proposed injunction was indirectly discriminatory, because those who were subject to the proposed injunction shared his protected characteristic of race, and that Westminster Council had failed to consider its public sector equality duty (“PSED”) under s149 of the Equality Act 2010.

Westminster Council denied that the PSED was engaged, and argued that in applying for the injunction, it was not exercising a public function but seeking to uphold the rights of others, rather than its own rights.

What did the Court decide?

Her Honour Judge Baucher considered the issue as a preliminary issue.

She held that Westminster Council was exercising a public function within the meaning of section 150(3) of the Equality Act: an application for an injunction under the 2014 Act could only be made by certain defined public bodies, including a local authority like Westminster; it was making the application as part of its public duties. This was supported by the statutory guidance to the 2014 Act, which reminded applicants that any action relating to vulnerable persons needed to be compliant with the Human Rights Act, the Equality Act and specifically the PSED.

Comment

In short, and unsurprisingly, the PSED applies to all of a local authority’s functions. Westminster Council was bound to take into consideration the PSED when making this injunction application.

It does seems somewhat surprising that Westminster Council was arguing it was not exercising a public function in making the application for an injunction, given that it was an application which affected individuals, indeed vulnerable individuals. In such circumstances, the PSED will be engaged and an Equality Act impact assessment should be carried out.

Counsel’s submission that the statutory guidance was seriously wrong was described as a “bold, if not remarkable submission”: a judicial comment which advocates know never bodes well.

An appeal is not expected.

Gillian Crew is a barrister at 42 Bedford Row.