Discrimination

July 23rd, 2019

In R (Drexler) v Leicestershire County Council (2019) EWHC 1934 (Admin) Swift J restated the following principles:-

(1) The extent of the ambit of an ECHR right is a matter of assessment: paragraph 24;

(2) For an Article 14 discrimination claim to arise there is no requirement for the substantive right to be infringed: ibid;

(3) For the purposes of Article 14, “other status” is “not limitless” but is “broad” and certainly includes “innate characteristics and personal characteristics which a person cannot or should not be expected to change”, such as age: paragraph 37;

(4) As to difference in treatment Manifestly Without Reasonable Foundation, the four stage structure in Bank Mellat (2014) AC 700 applies: paragraph 38;

(5) The approach to the level of review to be applied at the, fourth, “fair balance” stage, is that considered by the Supreme Court in R (DA) v SoS for Work and Pensions (2019) 1 WLR 3289: paragraph 39;

(6) It was not a relevant point of distinction either that DA was a challenge to a decision on welfare benefits or that DA was a Central Government decision rather than a challenge directed to a local authority’s policy: ibid;

(7) Discrimination will occur when there is, without a reasonable and objective justification, a failure to treat differently persons whose situations are significantly different: paragraph 51;

(8) Claims of indirect discrimination lie within ECHR Article 14: ibid;

(9) The starting point for such a claim does not need to be the existence of a rigid rule that is applied to each of the relevant comparator groups: paragraph 53;

(10) A wider, provision, criterion or practice, rather than a narrower approach should be adopted as to which situations fall within the scope of the prohibition against indirect discrimination: ibid;

(11) Nevertheless, if a claim of indirect discrimination is to exist, there must be some form of sufficiently similar treatment: ibid;

(12) Indirect discrimination looks to equality of result; it seeks to level the playing field where an application of apparently neutral criteria results in an adverse impact on persons who share one or other of the characteristics (including the “other status” characteristic) protected by Article 14: ibid;

(13) It does this by requiring the apparently neutral criterion to be justified: ibid.

 

Swift J said:-

“54. Discrimination claims should not be hamstrung by unnecessary conditions which divert the focus from assessing whether the reasons for measures that result in different treatment can be justified. … However, a requirement for similarity of treatment as the starting point for the claim is not an unnecessary limitation on the existence of a claim of indirect discrimination. In an indirect discrimination claim, the reason for similarity in treatment is thing that needs to be justified. Thus, the condition requiring similarity of treatment is the thing that captures the essence of the complaint.

55. A requirement only for similarity means that some degree of disparity of treatment must be tolerated, and will not of itself rule out the existence of an indirect discrimination claim. Yet, a degree of rigour must be applied if the integrity of the claim is to be maintained. If the difference of treatment between the comparator groups is significant and material, the wrong that an indirect discrimination principle exists to address will not be present; rather, the complaint will be a complaint about a lack of positive discrimination.”

Swift J at paragraph 58 referred to claims that are “recognizably claims of indirect discrimination”, as distinct from any free-standing positive obligation to make provision to cater for significant difference.

Finally, from paragraph 64, Swift J considered whether the Council had failed to comply with the PSED.  He concluded that its Cabinet had complied.

 

Having referred to a number of well-known authorities, he said, at paragraph 65:-

“65. … Whether or not a public authority has complied with the obligation to have due regard to the section 149(1) criteria is a question for the court, but the approach to compliance is not one-size-fits-all. In all instances, there must be evidence that demonstrates to the satisfaction of the court that the public authority took its decision with the statutory criteria properly in mind. The question for the court is whether the public authority has had “due regard” to those criteria, as they applied to the decision in hand. The standard that a court should require is not a standard of exhaustive consideration. Although whether there has been compliance with the section 149(1) duty is a question for the court, the court will not necessarily substitute its own view for that of the public authority, as a matter of course, on all matters. It will substitute its own view where it is apparent that the public authority has approached compliance with the section 149(1) obligation on a footing that is demonstrably false, or in a manner which is obviously lacking. But where the issue for the public authority was in the nature of an assessment of the potential consequences of the decision in hand, the approach required of the court is different. In his judgment in the Unison case, Underhill LJ described what is required of the court as follows (at paragraph 116).

“…to the extent that views are expressed on matters requiring assessment or evaluation the Court should go no further in its review than to identify whether the essential questions have been conscientiously considered and that any conclusions reached are not irrational. Inessential errors or missed judgments cannot constitute evidence of the breach of the duty”.”

 

At paragraph 67, Swift J described the Council’s “Equality and Human Rights Impact Assessment” as “not a perfect document”. He said that in places it was a little “confusing”; that in some places the questions posed could have been put more directly; and that the way in which the questions were formulated “tends to promote a lack of clarity in the answer”. However, he concluded:-

“… although there are criticisms that can be made, I do not consider they are sufficiently material to warrant the conclusion of the Council failed to comply with its section 149(1) obligation. … Looking at the EHRIA document overall, I consider it provides sufficient evidence that the Council did comply with the public sector equality duty.”

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