High Court dismisses judicial review claim from disabled swimmer over Hampstead pond charging regime

A disabled person's judicial review claim of the City of London Corporation's charging policy for a bathing pond has been dismissed by a High Court judge who said the claimant's argument "offends the principle of ensuring socio-economic equality".

In Efthimiou, R (On the Application Of) v The City of London [2022] EWHC 1588 (Admin) (23 June 2022), Mr Justice Cotter dismissed all three grounds brought by the claimant, including a ground that argued breaches of the Equality Act 2010.

The City of London, which runs all three swimming ponds on Hampstead Heath, introduced entry charges for swimmers in 2005. Currently, it costs £4.05 for a day ticket or £132.80 for a 12-month ticket.

A discounted concession ticket is offered to people on benefits, students, over 60s, under 16s and those with disabilities. Concession tickets cost £2.43 for a day ticket or £79.70 for an annual ticket.  

The claimant said that as a result of an updated charging policy, effective from 1 April 2021, she could no longer afford the ticket without help from friends or family, and argued that the cost of the 12-month concessionary season ticket was not affordable for disabled people who rely on benefits to pay out in one go. She added that the single ticket prices were also prohibitive to people on a low income.

The claimant submitted the following grounds to the High Court:

1. the City of London failed to make reasonable adjustments to its charging policy contrary to sections 20 and 21 of the Equality Act 2010;
2. the charging policy is indirectly discriminatory contrary to section 19 Equality Act 2010.
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").

The claimant said her own financial difficulties, which are directly related to her disability, have impacted her ability to access the ponds and argued that the charging policy affects her more significantly than it would if she were not disabled.

Her lawyers submitted evidence from others in a similar position, also unable to swim – or facing significant barriers to doing so – by reason of the financial consequences of their disability.

To remedy this, the claimant suggested a reduction in concessionary rates or complete concessions for disabled people, a programme to pay in instalments, or the provision of a hardship or support fund (this argument fell away during submissions).

In response, the City of London argued that heavily subsidised prices, including a 40% discount for disabled swimmers, "cannot possibly give rise to unlawful disability discrimination".

It submitted that no decided case has ever found that 'service providers' are required by the Equality Act 2010 to provide goods and services at a discounted price to disabled persons, "let alone that a pricing scheme which offers a substantial discount to disabled persons gives rise to unlawful disability discrimination".

"Nor does the relevant statutory Code of Practice from the Commission for Equality and Human Rights ("EHRC") contain any such suggestion. On the contrary, EHRC guidance says in terms that service providers: 'can charge [disabled service users] the same as they charge other people'," the authority added.

They argued that the charging policy was "plainly" justified as it is a proportionate means of achieving a legitimate aim (section 19 of the 2010 Act). As a result of the charges being plainly justified, they do not give rise to indirect discrimination, the City of London argued.

The defendant added that if the claimant's argument - that disabled persons have less money and that charging them to access a service, therefore, gives rise to unlawful discrimination - was correct, it would mean that "a vast range of service-providers would be required to provide goods, services and facilities to disabled persons for free".

The judge dismissed the claimant's case on all three grounds.

On ground 1, he said: "The Claimant's argument offends the principle of ensuring socio-economic equality and gives disabled people and gives disabled people (many of whom will not be on a low income) preferential treatment over all others on low income".

"In my judgment the Court must be careful not to allow the 2010 Act to be used so as to achieve the direct opposite of what it was enacted to achieve," he added.

He also concluded that the charging structure does not place a disabled person at a substantial disadvantage in comparison with persons who are not disabled.

On ground 2, the judge did not accept that the flat charge for all puts people who share the particular service user's protected characteristic at a particular (or substantial) disadvantage when compared with people who do not have that characteristic.

"The root problem is a lack of disposable personal income […] and the disabled and non-disabled (who all receive a concession if on benefits) are equally affected," he noted.

The judge dismissed ground 3, noting that he "[saw] no realistic argument that [article 8] applies to the Claimant on the present facts".

Adam Carey