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Planning and Equalities Impact Assessments

John Pugh-Smith and Daniel Kozelko look at the pitfalls of not undertaking equalities impact assessments conscientiously in the planning context.

Introduction

Insufficient Equalities Impact Assessments (“EqIAs”), as a stone that can fell a giant, are currently in the news. On 20 January 2021, in the case of R (United Trade Action Group Ltd & Ors v Transport for London & Mayor of London [2021] EWHC 72 (Admin) (“the UTAG case”) the High Court upheld judicial review challenges brought by the London taxi trade against Transport for London’s (TfL’s) Streetspace Plan, its Guidance and a specific scheme on Bishopsgate (A10). Whilst TfL has now lodged an  appeal, and seeks an expedited hearing, for now, the judgment of Mrs Justice Lang is essential reading for all concerned with EqIAs; for it highlights the fundamental problems that arise when proposals, not just street schemes, engage the requirements of Section 149 of the Equalities Act 2010 and the Public Sector Equality Duty (“PSED”). The UTAG case also follows another recent High Court judgment on 11 January 2021, in R(Fraser) v Shropshire Council [2021] EWHC 31 (Admin) on the same subject-matter though with a happier outcome. This article looks at the issue of EqIAs in the planning context, as well as both cases, and seeks to make some suggestions as to how the resulting legal pitfalls can, hopefully, be prevented.

The PSED obligation

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Local authorities are under a duty not to discriminate, as both service providers and exercisers of public function for purposes of the Equality Act 2010. [1] Disability discrimination, arises if, say, a disabled person is treated unfavourably because of something arising from their disability (irrespective of whether the treatment is because of particular prejudice towards the disabled). Indirect discrimination occurs when a neutral policy or practice puts people with a protected characteristic at a particular disadvantage compared to those who do not have it. As with disability discrimination but unlike direct discrimination, indirect discrimination is susceptible to a proportionality justification, hence the particular significance of the EqIA in the scheme development and decision-making processes.

In addition to this substantive duty not to discriminate in the exercise of its functions, local authorities are subject to the public sector equality duty (“PSED”), [2] which imposes a procedural requirement when the authority exercises its functions, including those pertaining to its own meetings, to have due regard to three aims (or arms), namely, the need to:

  • Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the 2010 Act.
  • Advance equality of opportunity between people who share a protected characteristic and those who do not.
  • Foster good relations between people who share a protected characteristic and those who do not, including tackling prejudice and promoting understanding. [3]

The 2010 Act explains that ‘having due regard for advancing equality’ involves:

  • Removing or minimising disadvantages suffered by people due to their protected characteristics.
  • Taking steps to meet the needs of people from protected groups where these are different from the needs of other people, including steps to take account of disabled persons' disabilities.
  • Encouraging people from protected groups to participate in public life or in other activities where their participation is disproportionately low. [4]

The Act also states that meeting different needs involves taking steps to take account of disabled people's disabilities. It describes fostering good relations as tackling prejudice and promoting understanding between people from different groups. It states that compliance with the duty may involve treating some people more favourably than others. [5]

Accordingly, Section 149 requires a local authority to have due regard to the need to, inter alia, eliminate discrimination and advance equality of opportunity between persons who share a protected characteristic and persons who do not share it. Section 149(3) provides specificity to advancing equality of opportunity, including minimising disadvantage suffered by that person, and encouraging them to participate in public life. In R ( Law Centres Federation Limited t/a Law Centres Network) v Lord Chancellor [2018] EWHC 1588 (Admin), Mrs Justice Andrews considered the requirements of s.149 as follows [6]: 

The duty is personal to the decision maker, who must consciously direct his or her mind to the obligations; the exercise is a matter of substance which must be undertaken with rigour, so that there is a proper and conscious focus on the statutory criteria and proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them. Whilst there is no obligation to carry out an EIA, if such an assessment is not carried out it may be more difficult to demonstrate compliance with the duty. On the other hand, the mere fact that an EIA has been carried out will not necessarily suffice to demonstrate compliance.

As to the proper approach to be taken by the court in considering compliance with the duty, this was considered by Lord Justice Elias in R (Hurley) v Secretary of State for Business Innovation and Skills [2012] EWHC 201 (Admin) at para 78:

The concept of “due regard” requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors.

By way of further judicial consideration,the case of Bracking v Secretary of State [2013] EWCA Civ 1345 [7] now sets out the relevant principles, including:

  • that the duty must be fulfilled before and at the time when a particular policy is being considered;
  • that it must be “exercised in substance, with rigour, and with an open mind” (it is not a question of “ticking boxes);
  • that the duty is non-delegable; that it is a continuing one; and
  • that it involves a duty of inquiry.

The Bracking principles were approved by Lord Neuberger in Hotak v Southwark LBC [2015] UKSC 30, who added:

“75. As was made clear in a passage quoted in Bracking, the duty “must be exercised in substance, with rigour, and with an open mind” (per Aikens LJ in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), [2009] PTSR 1506, para 92. And, as Elias LJ said in Hurley and Moore, it is or the decision-maker to determine how much weight to give to the duty: the court simply has to be satisfied that “there has been rigorous consideration of the duty”. Provided that there has been “a proper and conscientious focus on the statutory criteria”, he said that “the court cannot interfere … simply because it would have given greater weight to the equality implications of the decision”.” [Emphasis added]

However, a necessary gloss was subsequently added by the Court of Appeal in R (Ward) v London Borough of Hillingdon [2019] EWCA Civ 692, that even where express reference is made to the duty that is not, of itself, sufficient to demonstrate compliance. There, a failure to discharge the duty of inquiry led to a breach of the duty [8].

In essence, an Equalities Impact Assessment (“EqIA”) is the procedural exercise by which the PSED is assessed in the particular context in which it is engaged. Governmental guidance [9] describes the EqIA as “a systematic and evidence-based tool, which enables us to consider the likely impact of work on different groups of people.”  Accordingly, such assessments need to be based on good evidence which includes listening to the views of the people who are likely to be affected.

The Previous Planning Cases

In the planning context, and, given the judicial nuances set out above, we take up the timeline [10] with R. (Buckley) v Bath and North East Somerset Council [2018] EWHC 1551 (Admin) There, BANES had granted outline planning permission for the redevelopment of a housing estate comprising the demolition of up to 542 homes and the provision of up to 700 new homes, resulting in the loss of 204 affordable houses. The developer was a registered social housing provider which owned the majority of the properties proposed to be demolished. The claimant, a long-term resident of the estate, sought judicial review of the decision. Lewis J held that BANES had failed to comply with its s.149 duty. The fact that the application was for outline permission and that certain reserved matters were to be considered at a later stage in the process did not prevent the duty applying; that in deciding whether to grant the outline planning permission BANES had been obliged to have due regard to the impact of the demolition of existing homes and adapted dwellings on elderly and disabled residents but it had failed to do so .

In R. (Lakenheath Parish Council) v Suffolk County Council [2019] EWHC 978 (Admin) permission had been granted for 220 new homes in the village, and there had been a resolution to grant permission for a lot more. As the new housing was going to increase, substantially, the demand for school places, the County Council had granted permission for a new school with 420 places. The Parish Council had opposed the application, arguing that it was not the best site for the school as the village was next to a USAF airfield, that although the noise level inside the school would meet the relevant guidance, overflying aircraft would cause the exterior areas to suffer noise above the recommended level and teaching there would be affected. Experts had carried out noise tests at the site. The planning officer had listed seven potential alternative sites for the school and gave reasons why in each case it was not as suitable as the subject site. Although the officer’s report had not mentioned the PSED in terms. HHJ Gore QC (sitting as a Deputy High Court Judge) rejected the Parish Council’s contention that the County Council had failed to have regard to the impact of its decision on children with disabilities. He held that the requirements of the PSED had been fulfilled in substance, and that the officer’s report had shown consideration of the need to encourage participation in education by those with protected characteristics.

Nevertheless, an important reminder was given by Mr Justice Swift in the case of R(Williams) v Caerphilly County BC [2019] EWHC 1618 (Admin). These judicial review proceedings concerned CCBC’s sporting and leisure strategy. At para. 36 the Judge records that the requirement to have s.149 consideration for PSED is stronger than a standard “relevant considerations” which requires “focussed consideration”. At para. 37 he goes on to hold:

“The public sector equality duty is directed to the decision-making process. The premise of the duty is that process is important because it is capable of affecting substantive outcomes. In the present case there is nothing that gives me sufficient confidence that compliance with the public sector equality duty would be without purpose.”

Accordingly, the Judge upheld the challenge on this ground. The subsequent appeal [2020] EWCA Civ 296 by CCBC was dismissed but for other reasons.

The UTAG case

Five grounds of challenge were brought of which one [11] dealt with the PSED aspect. In her lengthy judgment Mrs Justice Lang reminded that there is no statutory duty to undertake an EqIA, though it is generally recognised as good practice, as it encourages a structured assessment to be made. The manner in which the duty is undertaken will depend upon the particular context, and the nature of the function which is being performed [12]. Here, she held that TfL had not had proper regard for the public sector equality duty (PSED). Although an EqIA had been completed for the Bishopsgate scheme, she found that:

…the EqIA did not meet the required standard of a “rigorous” and “conscientious” assessment, conducted with an open mind. The mitigation entries (save for impact 13), and the implementation/explanation entries were perfunctory or non-existent and failed to grapple with the serious negative impacts and high level of residual risks which emerged from the assessment. The residual risk assessment was inconsistent and irrationally understated the risks. Most worryingly of all, the EqIA read as if its purpose was to justify the decision already taken. [13]

For the reasons set out above, the Judge concluded that the Mayor and TfL had not have proper regard to the PSED duty in making the Plan, the Guidance and the A10 Order. Furthermore, she held that the decision of the Mayor to pursue the Streetspace programme was irrational. Given the importance of this finding as well as the topicality of the subject-matter we quote the following passages:

266. In my judgment, the flaws identified were symptomatic of an ill-considered response which sought to take advantage of the pandemic to push through, on an emergency basis without consultation, “radical changes”, “plans to transform parts of central London into one of the largest car-free zones in any capital city in the world”, and to “rapidly repurpose London’s streets to serve an unprecedented demand for walking and cycling in a major new strategic shift” (Mayor’s statements on 6 and 15 May 2020) …

267. The scale and ambition of the proposals, and the manner in which they were described, strongly suggest that the Mayor and TfL intended that these schemes would become permanent, once the temporary orders expired. However, there is no evidence to suggest that there will be a permanent pandemic requiring continuation of the extreme measures introduced by the Government in 2020.

274. In my judgment, it was both unfair and irrational to introduce such extreme measures, if it was not necessary to do so, when they impacted so adversely on certain sections of the public. The impact on the elderly and disabled who rely heavily on the door-to-door service provided by taxis is described at paragraphs 130 – 136 above. See also the adverse impacts identified in the EqIA (paragraphs 189-192 above). Taxis are a form of public transport. Travellers may wish to travel by taxi for legitimate reasons. Taxis have been valued by the NHS and vulnerable groups during the pandemic because they are safer than trains, buses and private hire vehicles …

275. I conclude that the decision-making processes for the Plan, Guidance and A10 Order were seriously flawed, and the decisions were not a rational response to the issues which arose as a result of the COVID-19 pandemic.

Accordingly, the Judge concluded that quashing orders rather than declarations were appropriate because of the nature and extent of the unlawfulness which she had identified, which affects not only taxi drivers, but also their passengers. She remarked that The Plan, the Guidance and the A10 Order all need to be re-considered and substantially amended in the light of her judgment. To reduce disruption, she directed that TfL and the Mayor  could turn their minds to this task now, on a provisional basis, as there would be a stay and a delay whilst they pursue their appeal. If the appeal were unsuccessful, then they could apply for further time (if required) to finalise the proposed revised Plan, Guidance and Order before the quashing orders took effect.

The Shropshire case

This provides a useful example of the way in which the PSED should be approached in the context of development management decision-making. Paula Fraser challenged the lawfulness of two separate grants of planning permission by Shropshire Council  to provide extra care residential development using a property known as Pauls Moss House. While she was not opposed to the principle of redevelopment of the site to provide such specialist accommodation, she believed the scheme failed to provide adequate open space for its intended residents. Despite the relative simplicity of this concern, there were than five grounds of challenge advanced against each decision, of which Ground 4 raised direct or indirect discrimination on grounds of age or disability in respect of open space, and, Ground 5 a failure to have due regard to the PSED under the 2010 Act. Dismissing both challenges, Mr James Strachan QC, sitting as a Deputy High Court Judge, remarks in relation to Ground 5 as follows:

195.  Under this ground, the Claimant submits that the Council failed to carry out its PSED and the duty is not satisfied simply by stating that the duty has been applied, as it is a duty of substance rather than form. In summary, the Claimant submits the Council did not undertake any assessment of (a) the particular needs of people with protected characteristics of age and/or disability for a specific quantity of open space; or (b) the harm that would be caused by not providing that quantity.

196. The Defendant and Interested Party submitted that the PSED did not apply in respect of the prospective residents of the proposed scheme because they were not being considered on account of their age or disability, but as individuals with extra care needs. They further submitted that the PSED was considered in any event.

197. As for Ground 4, I have reached the firm conclusion that this ground of challenge must be rejected on the facts in light of the consideration of the PSED by the Defendant evidenced by OR3 and the Additional Representation document.

198. I do not accept the Defendant and Interested Party’s submission that the PSED was simply not engaged at all here because the Defendant was considering a scheme for extra care, and residents were being considered as individuals with extra care needs rather than on account of their age and disability. The fact, for example, that eligibility for extra care residential accommodation includes a minimum age limit itself makes this a difficult submission to pursue. But more fundamentally, the statutory terms of the PSED do not limit its application in the way suggested. It is a duty which (amongst other things) required the Defendant to have regard to the need to advance quality of opportunity between older/disabled people and persons who do not have those protected characteristics, to foster good relations between persons who are disabled/older and persons who do not have those protected characteristics, and to encourage persons who share a relevant protected characteristic to participate in public life.

199.   …..   In any event, the PSED is a general duty that applies to the Defendant when carrying out its functions. It is not a duty which directs a particular outcome, but it is a duty which needs to be performed. I therefore reject the submission that the PSED was not engaged at all in the determination of the Third Application.

200. On the facts, however, I am satisfied that the duty was performed and performed in the way required by in accordance with the principles derived by the Claimant from Bracking (above), even though it was incorrect to suggest that it needed to be performed only out of “an abundance of caution”. In paragraph 6.4.9 of OR3 the members were directed specifically to the terms of the duty itself. As I have already  said, the analysis of the quality of the open space provided in fact identified benefits that are relevant to the considerations required under the PSED, such as fostering good relations and promoting integration in public life.

Accordingly, a pragmatic and sensible outcome resulted even if Shropshire Council’s approach to the PSED aspect had been, justifiably, open to some though not fundamental criticism.

Conclusions

From this review we would suggest that the following key lessons can be derived. First, is the inherent danger when an authority becomes “fixated” on a specific initiative to the exclusion of the general PSED obligation or its tokenist consideration. In Buckley it was the problem of displacement of residents. In UTAG it was the fixation on COVID-19 protection measures in a way which implied that nothing else needed to be considered. The suggestion seems to be that, as the Pandemic is such an existential threat, nothing else could really matter in that analysis. However, given that it was Guidance that was being published by the Mayor last May could anything more have been sensibly done at that stage, or, should it be left to fuller assessment at the stage of specific schemes?

So, secondly, is the importance of ensuring that EqIAs are an integral part of scheme development, no matter how pressing implementation timescales may be. Moreover, EqIAs should be genuinely used to inform the design process based on evidence-based consideration of impacts. This requires that all design decisions taken (and the reasons and evidence behind them) are documented contemporaneously, making it clear how the needs of all modes and users have been considered and how relevant policies have been taken into account.

Thirdly, is how the determining authority approaches the scheme itself and its PSED implications. In both the Lakenheath and Shopshire cases the judges were able to make robust, common sense findings because the PSED had been practically and demonstrably embraced, in contrast with Williams and UTAG. It is not a duty which directs a particular outcome. Rather, it is a duty which needs to be seen to have been performed.

Finally, legal advisers should be swift to ensure that officer reports sufficiently address how the PSED has been discharged in the particular circumstances. It is not a “tick-box” exercise or discharged simply because express reference has been made to the duty. Rather, there must be material showing that the duty of inquiry has been fulfilled.

It is to be hoped that if these lessons are learned and applied then not only will  the PSED have been discharged but also the quality of the decision-making process can be placed  beyond justifiable scrutiny. Otherwise, the outcome can be somewhat surprising, even for London’s taxi drivers.

John Pugh-Smith and Daniel Kozelko of 39 Essex Chambers are currently jointly engaged in a High Court challenge to the outworkings of the Streetspace programme within the London Borough of Hounslow and its effects on Chiswick High Road.

[1] S.29(1) and (6) Equality Act 2010.

[2] The general equality duty is set out in  s.149 of the 2010 Act

[3] S.149(1) Equality Act 2010.

[4] S.149(3) and (4) Equality Act 2010.

[5] See further Equality and Human Right Commission website: https://www.equalityhumanrights.com/en/corporate-reporting/public-sector-equality-duty

[6] Para. 96

[7] Per McCombe LJ @ para.26

[8] See also R (JM) v Isle of Wight Council [2011] EWHC 2911 (Admin), in which Lang J. held that the council had  not gathered  sufficient information to enable it to discharge the PSED

[9]  https://www.gov.uk/government/publications/equality-impact-assessments-2011

[10] See earlier cases cited at Para. P70.37 of the Planning Encyclopaedia

[11] “In making the Plan and Guidance and the A10 Order, TfL and the Mayor failed to have proper regard to the public sector equality duty, pursuant to section 149 of the Equalities Act 2010 (“the 2010 Act”).

[12] Para. 185

[13] Para. 193

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