Swimming in an open air pond on Hampstead Heath helped the claimant’s disability. A new system of prices to swim in the pond was introduced. Her claims for reasonable adjustments and indirect disability discrimination in relation to these charges failed. The disadvantage she suffered did not have the necessary causal connection with her disability or (for indirect discrimination) with the PCP, but was due to her limited means. My comments are below.
[2022] EWHC 1588 (Admin), High Court. Full judgment www.bailii.org/ew/cases/EWHC/Admin/2022/1588.html
Facts
The claimant, in her late 50s, argued that in setting the level of new prices charged to swim in the Kenwood Ladies’ Pond on Hampstead Heath, the Hampstead Heath Charity had failed to make reasonable adjustments for disabled persons wishing to use the pond, and/or the pricing policy was indirect disability discrimination (§2). It was one of three swimming ponds on the Heath managed by the charity (§4-5). The City of London was the sole trustee of the charity (§6).
The claimant was disabled due to rheumatoid arthritis, chronic obstructive pulmonary disease and depression. She was in receipt of Employment and Support Allowance (ESA), Personal Independence Payment (PIP) and other benefits. She swam regularly at the pond, about 3 times a week or more (§10). As well as her own evidence, her GP confirmed that the claimant had “frequently spoken about how she found 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” (§11).
Swimming at the ponds had been free until 2005 (§13). Then a “self-policing” charge of £2 per swim was introduced, with a £1 concessionary rate – but it appears that many, if not most, did not pay (§14). The present challenge was to a new 2020 policy which, for example, charged adults £4.05 for a session or £125.62 for a 12-month season ticket, with concessionary prices 40% lower for under 16s, students, over 60s, and those on certain benefits or with a Disabled Card. Under-16s and over-60s were eligible for free morning swims from 7am until 9:30am. Carers could accompany a swimmer for free There was no free swimming session for disabled people and/or those on low incomes (like the claimant). (§29-30)
As a result of the new prices, the claimant had faced significant difficulty in meeting the cost of swimming (§12).
The charity said ticket prices remained “cheap”, relative both to the ponds’ operating costs (swimming at the ponds continued to be heavily subsidised) and to comparable swimming facilities elsewhere (all of which were more expensive). (§31)
Held: The court rejected her claims for reasonable adjustments and indirect disability discrimination.
Decision: EqA policy
The court said the policy of the EqA was to ensure, so far as reasonably practicable, that the access enjoyed by disabled people approximates to that enjoyed by the rest of the public ie reducing socio-economic inequalities. The purpose of the duty to make reasonable adjustments was to provide access to a service as close as is reasonably possible to get to the standard normally offered to the public at large. It was important not to lose sight of this fundamental principle when considering whether there was discrimination. (§80)
Decision: Reasonable adjustments
Identifying the “provision, criterion or practice” (PCP)
As the claimant submitted, it was necessary to remove any relevant adjustment made in respect of disability, which is subsequently considered as a separate step (Reasonable adjustments by service providers>Whether there is a disadvantage is decided ignoring any adjustments actually made). The 40% concession for disabled people was therefore removed. This still left a 40% concession for those on a wide range of benefits, including the claimant as she received a relevant benefit (§83).
The PCP was therefore the application of the charging structure with a 40% discount for all those on low income (§83).
The court said this meant that the claimant’s case, which was that “the charging regime discriminates against disabled people a significant proportion of which are of limited income” could 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”. It then became necessary to consider why, if the barrier to access was having limited income ie purely financial, those who were disabled (taken generally) suffer a substantial disadvantage in comparison to people who were 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?” (§83) Why should disabled people (many of whom will not be on a low income) be given preferential treatment over all others on low income? (§84)
The court clarified that:
- no argument was advanced that all those on benefits should only face no, or a lower, charge (§86)
- the claimant’s argument was that charges should be reduced or removed for all disabled people regardless of whether they were on benefits or not, ie whether of limited means or wealthy, which the court said appeared to be a perverse result (§87)
- the claimant conceded that a similar argument could be run in respect of the Heath’s men’s and mixed ponds, so the fact that this claim involved the Ladies’ Pond took matters no further (§88).
Substantial disadvantage
The court said the claimant had to be at a substantial disadvantage because of the disability (§89). It cited R (Adiatu & IWGB) v HM Treasury, where the High Court held that the rate of Statutory Sick Pay (SSP) was not a PCP putting female and BAME employees at a particular disadvantage, even if they were disproportionately represented in the lowest earning groups.
In Adiatu the court had said that the classic PCP putting a group at a disadvantage was a requirement that must be satisfied for people to qualify for a particular opportunity or benefit. An example was a height requirement to join the police, which women were less likely to meet. The rate of SSP was not a barrier or gateway in this sense. It was a sum paid in exactly the same way to everyone who received SSP, regardless of their protected characteristics. Later, the court in Adiatu said that the claimants did not rely on any disadvantage caused by the rate of SSP itself. Rather, they relied on an alleged disadvantage – the absence of other financial resources – which was not caused or related to the rate of SSP in any way. (§90-91)
Whilst Adiatu concerned indirect discrimination, the court in the present case said its reasoning was equally applicable to reasonable adjustments, as regards whether there is a PCP putting a disabled person at a substantial disadvantage compared with non-disabled people (§91). The court held that the charity’s charging structure in this case did not place a disabled person at a substantial disadvantage in comparison with non-disabled people:
101. … Any disadvantage suffered by those with a disability in paying a fee for a service by reason of “limited means” … is not caused by the protected characteristic of disability, rather it is caused by the limited means. Even recognising a low bar for the statutory threshold, I do not believe that a reasonable person would think otherwise and believe that a legitimate grievance existed.
The charity had argued: “All those on a low income/limited means have a 40% concession to reflect limited budgets. [The PCP] 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.” (§91).
The charity pointed to guidance on the EHRC website about service providers not being able to charge for the cost of reasonable adjustments, which continued: “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” (§92-93). The charity submitted that this evidenced what the reasonable person would take as a starting point. Objectively speaking, only an obviously unjustified sense of grievance which is not actually based on discrimination by virtue of disability.
The court said the claimant was arguing for preferential treatment when compared to the various other groups for which relative poverty in terms of income was also experienced at a higher rate, including the elderly, single parents, women, minority ethnic groups and certain regional populations. (§95).
The claimant argued that:
- benefits levels were disproportionately less effective for disabled people given the extra expenditure faced by them. However, said the court:
- Firstly this ignored the availability of additional benefits to meet the additional expenditure arising from disability.
- Secondly, once one moved away from a hard-edged test/definition of limited means/in poverty etc with easily applicable objective criteria, significant difficulties arose as subjectivity entered the fray. “Impecuniosity” and “affordability” were multifactorial concepts which were difficult to define/identify in the context of the inability to pay for a service. (§97-99)
- since swimming in the ponds helped cope with, or alleviate the symptoms from, a disability (generally), inability to afford it put disabled people at a significant comparative disadvantage.
- However, said the court, the claimant had not established that disabled persons generally (who will have a very wide range of disabilities) were sufficiently benefitted by swimming in the ponds, as compared with non-disabled swimmers, to mean that they suffered a substantial disadvantage if access was reduced or prevented by cost. (§100) [But see my comment below: Particular kind of disability: reasonable adjustments.]
Reasonableness of adjustments
In case the court’s previous conclusion were wrong, so that there was a PCP putting disabled people at a substantial disadvantage, the court went on to consider whether it would have been reasonable for the charity to make adjustments proposed by the claimant. The court held it would not. (§104-130)
Decision: Indirect discrimination
The court also rejected the claim that the charging system was indirect disability discrimination.
In summary, indirect discrimination under the EqA involves applying a provision, criterion or practice (PCP) which is apparently neutral but has the effect of creating a barrier for those with a particular characteristic. It is unlawful unless the PCP is objectively justified.
It was not disputed that the PCP for the purpose of indirect discrimination in this case was the charging policy taken in its entirety (presumably including the discount for disabled people) (§133).
The court said there needed to be a causal connection between this PCP and the particular disadvantage suffered (even though there was no need for proof of the reason why the PCP put the affected group at a disadvantage). The charity cited the Essop case, and Adiatu (which discusses Essop). (§138-139)
The court agreed with Adiatu’s analysis of Essop: the decision in Essop was 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. The claim in Adiatu that the rate of SSP was too low failed because the claimants relied on an alleged disadvantage – the absence of other financial resources – which was not caused or related to the rate of SSP in any way. (§139-140)
Similarly in the present case, the court did not accept that the necessary casual connection existed, ie that the PCP, a flat charge for all to access the pond, put people who shared the particular service user’s protected characteristic at a particular (or substantial) disadvantage when compared with people who did not have that characteristic. The root problem was a lack of disposable personal income, which was unconnected to the PCP. The disabled and non-disabled (who all received a concession if on benefits) were equally affected. The indirect discrimination claim therefore failed. (§140)
In dealing briefly with other issues raised on indirect discrimination, the court said it saw force in the charity’s submission that if the claimant’s argument were correct, then equally other user groups (eg BAME or female users) might establish that they had a greater proportion of members with limited finances, so that a range of groups should pay no fees. The claimant’s argument could also apply to the provision of many other services to groups with a higher proportion of financial hardship, such as gas and electricity for domestic heating. The charity submitted that the reason claims were not brought on this basis was because it was recognised that “this is the way the economy works” and reasonable people would not believe that it would give rise to a legitimate claim under the EqA to pay no (or a lesser) fee for such services solely based on membership of any group with a higher proportion of people with limited means. (§143)
The court also rejected an argument that there was discrimination under Article 14 of the European Convention of Human Rights (§146-161).
My comments
Comments: “Opening the floodgates”?
I think there are problems with the legal reasoning of this case: see below Particular kind of disability: reasonable adjustments and Limited means due to disability. However one can appreciate the courts being concerned that allowing this kind of claim may “open the floodgates” for claims about what discounts if any should be given for many kinds of services.
Following on from my comment below Particular kind of disability: reasonable adjustments, say the court had accepted that access to the pond particularly benefits disabled people, or at least those with the claimant’s kind of disability. Is there really an EqA duty to make reasonable adjustments to the price of any service which particularly benefits people with a certain kind of disability, such as supermarket home delivery? Or indeed private medical services, or – more relevant specifically to people who stammer – private speech and language therapy services, which may be particularly beneficial to those with a disability.
In considering indirect discrimination, the court also indicated (at §143) how the claimant’s arguments could potentially go still further, to cover discounts for heating etc. (See below Limited means due to disability as to whether – despite what the court says in this case – it might arguably be enough under the EqA to show that those with the same kind of disability are more likely to have only limited means.)
Also how would a court decide precisely what price is “reasonable” or (for indirect discrimination) “proportionate”? For example, discussing what discount would be reasonable in the present case the court said:
126. As for the Claimant’s alternative suggestion that the 40% concession should be increased; the obvious question is by what degree? I agree with [the charity’s] submission that neither the Court nor [the charity] could realistically conclude that some other particular percentage is more reasonable than 40%. If the fee were to be set at £1 it might satisfy the Claimant but not another disabled person of limited means; particularly if on the wrong side of Mr Micawber’s equation. As Lord Justice Elias set out in Griffiths v Secretary of State for Work and Pensions [2017] ICR 160 at paragraphs 77-78, where there is no obviously appropriate adjustment which would remove a disadvantage suffered by disabled persons, and an adjustment would therefore be arbitrary and, probably to a degree invidious, a court is fully entitled to take the view that it cannot provide a sound basis for concluding that an adjustment is reasonable. That is the view that I take.
Comments: Particular kind of disability: reasonable adjustments
The court found (at §100) the claimant had “not established that disabled persons generally (who will have a very wide range of disabilities) were sufficiently benefitted by swimming in the Ponds, as compared with non-disabled swimmers, to mean that they … suffer a substantial disadvantage if access is reduced or prevented by cost.” However case law indicates that the court should have considered whether people with the same kind of disability as the claimant were put at a substantial disadvantage: Reasonable adjustments by service providers>Particular kind of disability).
But see also above “Opening the floodgates”?
Comments: Limited means due to disability
I also have problems technically with the court’s arguments that there was not a PCP putting disabled people at a disadvantage if they were more likely to have only limited means.
The court seems to have agreed with the decision in Adiatu that the classic PCP putting a group at a disadvantage is a requirement that must be satisfied in order for people to qualify for a particular opportunity or benefit, such as a height requirement to join the police which women were less likely to meet. The rate of Statutory Sick Pay (SSP) in Adiatu was not a barrier or gateway in this sense. However the facts in Efthimiou seem much closer to the classic PCP. Payment was a requirement to access the benefit of swimming in the pond, which a group tending to have more limited means (such as people with a certain kind of disability, if the evidence showed that) were less likely to be able to afford. This seems not much different from, say, women having a potential claim for indirect discrimination in respect of (unreasonable) height requirements.
However in the Efthimiou situation there could be – and indeed was – a discount for people on welfare benefits. This indicates it is not quite analogous with the height requirement above. More analogous, I suggest, would be a test to join the police (or any job) where recruits have to jump up to hang from a horizontal bar about 9 feet high (2.7 metres). I’m not saying this example would ever happen in real life but it illustrates the principle. Say the employer allows a concession that if the recruit (man or woman) is less than a particular height, the bar is set 6 inches (0.15m) lower. It seems clear that a woman would still have a potential indirect discrimination claim (if the employer’s test is unjustified), as women are still less likely on average to be able to pass the test. Similarly, it could be argued that even though there is a concessionary price (like lowering the bar) for swimmers whose means are limited enough that they are on welfare benefits, a group which tends to be worse off financially will still be at a comparative disadvantage.
What of the required causal connection? The court said that the disadvantage, difficulty in affording the price, (a) as regards reasonable adjustments, was not because of the disability, and (b) as regards indirect discrimination, did not have a causal link to the system of charges (the PCP). On (a), the court’s argument seems to me rather like arguing – in the police recruitment example – that her disadvantage stemmed from her height rather than her gender, which would clearly be wrong. On (b), without any charge a disabled person would not have been at the disadvantage, and the higher the charge the greater the disadvantage. It seems to me that under the EqA, the causality test – though the EqA does not talk in terms of causality here – is whether, say, women or disabled people are put at a disadvantage compared with others, as discussed in the previous paragraph (the analogy of jumping to reach a bar). So if those with a certain disability are more likely to have limited means, and so find it harder to afford the prices, on principle it seems this should be enough. The group is at a disadvantage. The court in Essop did say the employer etc may be able to show that the individual claimant’s disadvantage did not correspond with the disadvantage suffered by the group, so that the causal link between the PCP and the individual’s disadvantage was absent.
(It is interesting that as regards reasonable adjustments the court apparently saw the required causal connection as between the disadvantage and the disability, whereas for indirect discrimination it was between the disadvantage and the PCP. In both cases though, the court’s argument seems to have been essentially that the disadvantage stemmed from the person’s limited means rather than either their disability or the PCP.)
As to what reasonable adjustments are required, it might well be argued that it is not reasonable to give a concession to all disabled people (some of whom may not need a discount), but to tailor concessions according to individuals’ means. I don’t see why a reasonable adjustment for a disability necessarily needs to be for everyone with the disability, whatever their financial resources. A discount granted to people on welfare benefits may or may not be seen as sufficient reasonable adjustment for disabled people, depending on the facts.
Last but not least, the Supreme Court in McCue v Glasgow City Council, 2023, considered means-tested charges for care by a local council. The claimant (acting as guardian for her son) argued that the council should have allowed more deductions for her son’s disability-related expenditure. The court held that the way the council calculated the charges was a PCP, but (on more conventional grounds than Efthimiou) on the facts the PCP did not put the son at a disadvantage, so his reasonable adjustment claim failed. It should be noted that this Supreme Court case on what changes could be made for services (under statute, but the council had significant discretion in determining the charges) was decided without raising the novel issues discussed in Efthimiou and Adiatu. (Incidentally, at §62 the Supreme Court gave an example of where there might be a claim under s.15 EqA in respect of a council’s charging system.)
