Hamnett v Essex County Council

A statutory application to review a traffic regulation order is distinct from a claim for judicial review under CPR Part 54. The statutory exception for judicial review in the Equality Act 2010 therefore does not extend the Administrative Court’s jurisdiction to determine a substantive claim under section 29 where the application proceeds under the statutory review procedure.

The public sector equality duty is procedural. It requires a public authority to have due regard, with substance, vigour and an open mind, to the statutory equality needs before and during an important policy decision. It does not require a particular outcome. Once due regard has been given, the weight accorded to competing considerations is generally for the public authority, subject to rationality review.

The claimant, a disabled blue badge holder, challenged two experimental traffic regulation orders made by Essex County Council under the Road Traffic Regulation Act 1984. The orders restricted private vehicle access and removed designated disabled parking spaces from Colchester High Street and Head Street, while providing alternative spaces elsewhere.

She alleged breach of sections 29, 20 and 15 of the Equality Act 2010, breach of the public sector equality duty under section 149, and irrationality. The central issues were whether the Administrative Court had jurisdiction to determine the section 29 claim in a statutory review application, whether the Council had complied with section 149, and whether the decision was irrational.

1. Jurisdiction. The phrase “claim for judicial review” in section 113 of the Equality Act 2010 is a term of art referring to a claim under CPR Part 54. It does not include a statutory application under paragraph 35 of Schedule 9 to the Road Traffic Regulation Act 1984, which proceeds under Part 8 and may be brought as of right by any person. The court therefore had no jurisdiction to entertain the challenge based on section 29, read with sections 20 and 15.
2. Public sector equality duty. The duty under section 149 is procedural and does not control the substance of the decision. “Due regard” is the regard appropriate in all the circumstances. The decision-maker must consider the statutory equality needs with proper regard, vigour and an open mind, before and at the time of the relevant policy decision.
3. The duty is a duty to consider the need to achieve the statutory goals, not a duty to achieve them. Where adverse impact is identified, the authority should consider measures to avoid it before settling on a particular solution. The necessary degree of regard is especially high where large numbers of vulnerable people may be affected.
4. The court reviews for itself whether due regard was given. It does not merely ask whether the duty was ignored or whether the decision was Wednesbury unreasonable. Once the duty has been performed, however, the weight given to countervailing considerations remains for the public authority unless the resulting assessment is irrational. No statutory equality impact assessment is required as such.
5. The Council had undertaken equality impact assessments, commissioned a non-motorised user review, consulted affected groups, modified its proposals, and made the orders experimental and subject to review. It had therefore discharged the section 149 duty. The decision involved competing and potentially conflicting interests in a polycentric policy context and was not irrational. The application was refused.