SM (a child) v LONDON BOROUGH OF HACKNEY

A challenge to experimental traffic orders must be determined within the statutory grounds governing such orders, applying ordinary public law, equality and Convention principles where relevant.

A public authority may adopt a continuing or rolling assessment of equality impacts when making an experimental order, particularly where urgent action is justified. The public sector equality duty is distinct from the ancillary duty to acquire information: the former is objective, while the latter is subject to rationality review.

A settled consultation practice may create a legitimate expectation, but departure from it may be justified by an overriding public interest such as a pandemic and urgent transport measures. An objectively material interference with article 8 rights may nevertheless be proportionate where the measure pursues broad social objectives, is experimental, monitored and reviewable, and its discriminatory impact is limited.

Two children with disabilities challenged experimental traffic orders made by the London Borough of Hackney. The orders restricted vehicle routes near Harrington Hill Primary School and removed a route to the applicants’ independent special school, increasing or potentially increasing their car journey times.

The challenge was brought under paragraph 35 of Part VI of Schedule 9 to the Road Traffic Regulation Act 1984. The applicants alleged failure to comply with the public sector equality duty, failure to consult, and unlawful interference with rights under articles 8 and 14 of the European Convention on Human Rights.

The central issues were whether Hackney had made sufficient enquiries and had due regard to disability impacts, whether its consultation arrangements were lawful, whether post-decision evidence could be considered, and whether the orders were proportionate.

1. Outcome. The claim was dismissed. The two experimental traffic orders were within Hackney’s powers and were not shown to have been made in breach of any relevant requirement.
2. Equality duty. The duty under section 149 of the Equality Act 2010 was adequately performed. An equality impact assessment is evidential rather than determinative. Regard may be demonstrated by the decision-maker’s wider consultation and deliberative material, even where every matter is not expressly recorded in the assessment.
3. The Tameside duty to acquire information is subject to a rationality threshold, whereas the section 149 duty imposes an objective standard for the court to assess. In the context of an urgent experimental scheme, Hackney was not irrational in limiting its initial enquiries to the consultation and discussions undertaken. It was not required to consult the families of affected children specifically about journey times before making the orders.
4. Consultation. Regulation 6 of the Local Authorities’ Traffic Orders (Procedure) (England and Wales) Regulations 1996 ordinarily defines the scope of the statutory duty. Statutory consultation must be conducted properly and fairly, but need not ordinarily exceed the statutory requirements.
5. Hackney’s consistent previous practice of public consultation could give rise to a legitimate expectation. However, the pandemic, government guidance urging rapid transport measures, and the continued availability of post-implementation objections and statutory challenge justified departing from that practice. The informal meeting with the school did not create a separate unlawful consultation process or amount to the unfairness identified in R (Article 39) v Secretary of State for Education.
6. The school represented pupils and parents in matters concerning access to the school, but not necessarily in relation to journey times between their homes and the school. Hackney was therefore not irrational in treating the Interlink Foundation as the more appropriate representative body, particularly since it had also discussed the proposals with school staff.
7. Convention rights. The orders materially interfered with the applicants’ article 8 rights, but the interference was lawful and proportionate. The court could consider post-decision evidence only insofar as it concerned facts Hackney ought to have known before making the orders, or facts relevant as a cross-check on the reasonableness of its forward-looking assessment.
8. The traffic orders had a differential impact on a small subgroup of disabled children. That engaged a demanding justification assessment, but the orders were general measures of social strategy, experimental, subject to monitoring and review, supported by transport policy and guidance, limited in operation in part, and capable of exemptions. The overall balance justified the limited adverse impact.

This was a first-instance statutory challenge in the Administrative Court. No appellate history was stated in the judgment.