CHRISTINA EFTHIMIOU (R on the application of) v THE MAYOR AND COMMONALTY AND CITIZENS OF THE CITY OF LONDON

The court considered a challenge to the Defendant’s revised charging policy for swimming at Kenwood Ladies’ Bathing Pond under the Equality Act 2010 and the European Convention on Human Rights. The claimant alleged (i) a failure to make reasonable adjustments (sections 20 and 21 EA 2010), (ii) indirect discrimination (section 19 EA 2010) and (iii) discrimination under Article 14 ECHR read with Article 8 and/or Article 1 of Protocol 1.

The judge identified the relevant provision, criterion or practice (PCP) as the charging regime including the existing 40% concession for those on state benefits. The court held that the claimant could not show a causal link between disability per se and the substantial disadvantage alleged because the principal barrier was limited financial means rather than disability itself. The section 20 duty to make reasonable adjustments therefore did not arise. In the alternative, the court found that proposed adjustments (for example free or further reduced charges for all disabled people, or provision of direct debit payment) were not reasonable in all the circumstances, having regard to the Charity’s funding constraints, the scale of the likely cost and the risk of wider financial consequences.

The court also found that the charging policy did not amount to indirect discrimination under section 19 and that Article 14 in combination with Article 8 or A1P1 did not afford the claimant a sustainable route to relief. Permission on Ground 3 was refused (it had been refused previously on the papers) and the claim was dismissed.

Background and parties: The Defendant, as sole trustee of the Hampstead Heath Charity, introduced a revised, enforced charging policy for the Hampstead Heath bathing ponds (effective 1 April 2021) after a 2020 review. The claimant, a disabled regular female swimmer at Kenwood Ladies’ Pond, challenged the decision by judicial review. She relied on her disabilities (rheumatoid arthritis, COPD and depression) and the therapeutic importance of cold-water swimming to her health.

Relief sought: The claimant sought declarations that the charging policy breached the duty to make reasonable adjustments (sections 20 and 21 EA 2010), that it was indirectly discriminatory (section 19 EA 2010), and that it violated Article 14 ECHR read with Article 8 and/or Article 1 Protocol 1.

Procedural posture: Permission was granted on Grounds 1 and 2 by a Deputy High Court Judge on 2 August 2021; permission on Ground 3 was refused on the papers and renewed at the hearing.

Issues framed by the court:

• Whether a provision, criterion or practice (PCP) put disabled persons at a substantial disadvantage such that the duty to make reasonable adjustments under section 20(3) EA 2010 arose;
• If so, whether the Defendant failed to take reasonable steps to avoid that disadvantage;
• Whether the charging policy was indirectly discriminatory under section 19 EA 2010;
• Whether there was a breach of Article 14 ECHR in conjunction with Article 8 and/or Article 1 of Protocol 1.

Court’s reasoning: The court analysed the PCP and concluded that, once existing concessions (notably the 40% concession for those on state benefits) were taken into account, the PCP was a financial charging regime that applied equally to all on limited means. The claimant could not establish that the disadvantage stemmed from disability rather than from lack of disposable income. The court relied on authority analysing when a financial measure constitutes a PCP (including Adiatu) and on guidance that service providers may charge disabled users the same as others when the service is used in the same way. The judge therefore concluded the section 20 duty was not engaged. Even if it had been, proposed adjustments (free or further reduced access for all disabled people, or a direct-debit facility) were not reasonable given the Charity’s constrained finances, the scale of likely cost, benchmarking against comparable facilities, and realistic administrative and revenue risks. For the same reasons the indirect discrimination claim failed (no causal connection shown) and the Article 14 arguments did not fall within the ambit of Article 8 or A1P1 or, in any event, were proportionate and justified.

Subsidiary findings and context: The court noted the ponds’ historical context (charges introduced in 2005 after a period of free access), the extensive subsidisation of the ponds, the unusual degree of prior undercharging and non-payment by users, and the Charity’s wider funding pressures requiring savings. The judgment observed the limited weight that could be given to the claimant’s surveys because of methodology and pandemic effects. The court emphasised that the Equality Act is not a vehicle to reallocate public subsidy on the basis of group membership absent a causal link between a PCP and disability-based disadvantage.

The claim is dismissed. The court held that the claimant failed to show that the charging policy placed disabled persons at a substantial disadvantage arising from disability (so the section 20 duty did not arise); alternatively, the adjustments proposed were not reasonable in all the circumstances. The indirect discrimination claim under section 19 EA 2010 failed for the same reason (no causal connection). A renewed Article 14 challenge (with Article 8 and/or A1P1) was refused as out of ambit or, in any event, proportionate and justified.

Permission to bring judicial review was granted on Grounds 1 and 2 by Peter Marquand (sitting as a Deputy Judge of the High Court) on 2 August 2021. Permission on Ground 3 was refused on the papers and the claimant renewed that application at the hearing. No appeal history to a higher court is stated in the judgment.