SM (a child) v LONDON BOROUGH OF HACKNEY

The claim challenged two experimental traffic orders (ETOs) implemented by the London Borough of Hackney: a School Streets measure and a low-traffic neighbourhood filter affecting access to an Orthodox Jewish special school (S School). Key legal issues were (i) performance of the public sector equality duty under section 149 of the Equality Act 2010, (ii) adequacy of consultation under the Local Authorities Traffic Orders (Procedure) (England & Wales) Regulations 1996 (the 1996 Regulations), and (iii) compatibility with article 8 ECHR and article 14 read with article 8. The court found that Hackney had regard to disability equality issues including by conducting an equalities assessment and continuing monitoring; it was legitimate in the public health emergency context to proceed with expedited ETOs while carrying out consultation and monitoring during the experimental period. The court held that regulation 6 consultation obligations had been met and that, given the pandemic-related guidance to act swiftly, the change from previous wider pre-implementation public consultation did not give rise to a binding legitimate expectation of the same procedure. Finally, the court found that, while the ETOs materially affected some vulnerable children by increasing journey times, the interference with article 8 rights was justified and proportionate having regard to the experimental nature of the measures, public safety, air quality and other public benefits, and the availability of monitoring, exemptions and objection procedures.

Background and parties:

• The applicants are two children with disabilities who attend an Orthodox Jewish special school in Hackney and who rely on car transport. They challenged two ETOs made by the respondent council on 25 September 2020 and taking effect on 9 November 2020, which altered vehicle access routes to the school.
• The claim was brought under paragraph 35, Part VI, Schedule 9 to the Road Traffic Regulation Act 1984 and raised additional public law, equality and human rights grounds.

Nature of the application and relief sought:

• The applicants sought to question the validity of the ETOs on the bases that (i) the public sector equality duty (Equality Act 2010, s.149) had not been discharged, (ii) statutory and/or common law consultation obligations were not properly performed, and (iii) the orders breached article 8 ECHR and/or article 14 read with article 8.

Procedural posture:

• First instance claim in the Administrative/Planning Court; the ruling is at trial level in the High Court. Not an appeal.

Issues framed:

1. Whether Hackney complied with the public sector equality duty in making the ETOs.
2. Whether Hackney was obliged to consult more widely or differently before making the ETOs (statutory/regulatory and common law legitimate expectation / fairness arguments).
3. Whether the ETOs interfered with the applicants' article 8 rights (and, if so, whether any interference was lawful and proportionate), including an article 14 complaint of indirect discrimination on the ground of disability.

Court's reasoning (concise):

• Equality duty: The court accepted that Hackney considered disability issues in its decision-making (decision paper, equalities impact assessment and subsequent monitoring) and that the public sector equality duty was a continuing duty in the experimental context. Given the COVID-19 emergency and the experimental nature of ETOs, the council's enquiries and ongoing review were adequate; Hackney was not irrational in not making direct, wider enquiries of families prior to making the orders. The first ground failed.
• Consultation: Hackney had previously practised pre-implementation public consultation but, following DfT/TfL guidance in the pandemic, elected to proceed more rapidly and to carry out wider engagement during the experimental period. The court found a past practice of public consultation may have given rise to a legitimate expectation in general, but an overriding public interest and the emergency context justified departure from that practice. Regulation 6 obligations were properly addressed and informal pre-implementation engagement with the school and community occurred. The second ground failed.
• Convention rights (articles 8 and 14): The court accepted there was a material interference with article 8 for some vulnerable pupils (increased journey times and consequent distress) but held the interference was in accordance with law and justified. The measures were experimental, amenable to monitoring and review, sought legitimate aims (air quality, road safety, healthier travel, reduction of rat-running) and were proportionate in light of the limited and indirect adverse impact on a small subgroup of disabled pupils. The article 14 complaint failed on justification grounds.

Conclusion: The court dismissed the application in full, finding the ETOs lawfully made and proportionate despite regrettable adverse effects on some pupils.

The claim is dismissed. The court held that (i) Hackney adequately discharged its public sector equality duty in the context of experimental traffic orders and ongoing monitoring, (ii) consultation required by the 1996 Regulations and the changed practice in the pandemic context was lawful and not unfairly withheld, and (iii) any interference with article 8 rights and any indirect discrimination under article 14 were justified and proportionate in light of the public interest, experimental nature of the measures, monitoring arrangements and mitigation options.