R (Independent Workers Union of Great Britain) v Mayor of London and Transport for London

The Court of Appeal dismissed the appellant's challenge to the Mayor of London and Transport for London's decision to remove the congestion charge exemption for licensed private hire vehicles (PHVs) unless designated wheelchair accessible. The judgment applies s.19 Equality Act 2010 (indirect discrimination) and the established proportionality/justification principles derived from Bilka and Lockwood: the respondent bears the burden of showing that the PCP is a proportionate means of achieving a legitimate aim. The court accepted that the primary legitimate aim was reducing traffic and congestion in the Central Charging Zone and that maintaining the supply of wheelchair-accessible vehicles to serve passengers who use wheelchairs was a legitimate consideration.

The court held that (i) the decision maker could rely on the expert forecasts (notably the CEPA analysis and the IIA) and contemporaneous consultation material which forecasted a modest but meaningful reduction in traffic; (ii) the judge below had considered alternative, less intrusive options and reasonably accepted evidence that they would not achieve the same benefits; (iii) a rigorous proportionality assessment had been conducted, weighing the adverse disparate impact on predominantly BAME minicab drivers and some disabled passengers against the traffic, congestion and air quality benefits, including available mitigations; and (iv) on the material the measure was a proportionate means of achieving the legitimate aims and therefore did not constitute unlawful indirect discrimination under s.19 EA 2010.

The appellant, a trade union representing low-paid workers, and some affected individuals, sought judicial review of changes to the Greater London (Central Zone) Congestion Charging Scheme which removed the congestion charge exemption for private hire vehicles (PHVs or minicabs) unless designated wheelchair accessible.

The claim alleged, inter alia, indirect discrimination under s.19 Equality Act 2010 on grounds of race and sex (drivers) and disability (passengers), and breaches of articles 8 and 14 under the Human Rights Act 1998. At first instance Lewis J dismissed the claim ([2019] EWHC 1997 (Admin)). The present appeal to the Court of Appeal concerned only the Equality Act aspects; permission to appeal was granted (McCombe LJ 1 November 2019). The instrument challenged comprised Transport for London’s Greater London (Central Zone) Congestion Charging (Variation) Order 2018 and the Mayor’s confirmation in December 2018.

The factual and evidential background included: the Mayor's statutory transport strategy duties under the Greater London Authority Act 1999 (notably ss.141 and 142), a CEPA economic and traffic forecast (the CEPA Report), an integrated impact assessment by Mott MacDonald, consultation responses (including Oxera/ Addison Lee material and CEPA's reply) and other supporting documents appended to the Request for Mayoral Decision (MD2397). The expert material forecast, on a conservative basis, a reduction of private hire vehicle traffic in the Central Charging Zone by about 6% (c.1% of overall traffic) and a substantial drop in unique PHV entries; the IIA and consultation materials identified disproportionate effects on BAME drivers (who form c.94% of PHV drivers), on drivers from deprived areas and on some disabled passengers.

The issues framed by the Court included whether the measure pursued a legitimate aim, whether it was appropriate and reasonably necessary to achieve that aim, whether there were less intrusive alternatives, the correct comparator pool under s.19(2)(b) and the proper conduct and intensity of the proportionality inquiry. The court reviewed the legal framework for justification under s.19(2)(d), drawing on Lockwood, Bilka and related authorities, and emphasised that the respondent bore the burden of proof but that an element of margin of discretion applies to public decision makers; at the same time a stringent standard of scrutiny was appropriate in the context of a substantial racial imbalance in the groups affected.

The Court of Appeal (Simler LJ, Singh LJ, Sir Geoffrey Vos) held that (i) the legitimate aim of reducing congestion was established and maintenance of wheelchair-accessible vehicle supply was a legitimate objective or at least a legitimate design feature for the reasons set out in the transport strategy and statutory duties; (ii) the judge had properly considered and relied on expert forecasts (CEPA) and subsequent evidence (Ms Calderato) and was entitled to treat a 1% overall traffic reduction as a not insignificant benefit, particularly in context of continuing growth of PHVs; (iii) alternative measures advanced were either not realistically as effective or not feasible and the evidence supported the judge’s conclusion that no less intrusive alternative had been shown to achieve the same aim; (iv) the judge applied a proper proportionality analysis, assessing impacts, mitigation and benefits, and did not err in approach to justification despite initial phrasing issues; and (v) the judge permissibly proceeded on the basis that s.19(2)(a)-(c) applied (a concession) and declined to entertain the Respondent’s attempt to withdraw that concession because his other conclusions made further consideration unnecessary.

The court therefore dismissed the appeal. The panel emphasised that, notwithstanding the troubling distributional effect, a rigorous proportionality assessment supported the conclusion that the measure was a proportionate means of achieving the stated aims.

The appeal was dismissed. The Court of Appeal concluded that removal of the congestion charge exemption for private hire vehicles (except designated wheelchair-accessible vehicles) pursued legitimate aims (reducing congestion and preserving wheelchair-accessible provision), that the decision maker could rely on the expert forecasts and consultation material, that no less intrusive alternative that would achieve the same benefits had been shown, and that a rigorous proportionality assessment established the measure was a proportionate means of achieving those aims and therefore not unlawful indirect discrimination under s.19 Equality Act 2010.

Appeal to the Court of Appeal from the Administrative Court (Lewis J) ([2019] EWHC 1997 (Admin)). Permission to appeal granted by McCombe LJ on 1 November 2019. Hearing before the Court of Appeal 30 June–1 July 2020; judgment handed down 5 August 2020 ([2020] EWCA Civ 1046).