R (on the application of Blake and others) v Waltham Forest London Borough Council

Licence – Soup kitchen – Public sector equality duty – Claimants holding licence to operate soup kitchen for homeless vulnerable people – Defendant local authority revoking licence following complaints of anti-social behaviour – Claimants applying for judicial review of decision – Whether defendants failing to comply with public sector equality duty (PSED) – Application granted The third claimant was a registered charity whose trustees organised a soup kitchen used by, amongst others, the first and second claimants. The soup kitchen was operated from a council-owned 24-hour car park in Walthamstow. It was staffed by volunteers from a consortium of local churches who had been preparing and serving hot meals and hot drinks to homeless vulnerable people for more than 25 years. It provided about 80 hot meals per night and was open for one hour seven nights a week, all year round. Following complaints of anti-social behaviour, including street drinking, and violent and intimidating behaviour, associated with the soup kitchen, the defendant local authority decided to revoke the licence. The claimants were granted permission to apply for judicial review of that decision on the ground that the defendants had failed to comply with the public sector equality duty (PSED) when making their decision. That duty was contained in section 149 of the Equality Act 2010 which required public authorities to give due regard to the need to eliminate unlawful discrimination and harassment and other conduct prohibited by the Act; and to advance equality of opportunity, and foster good relations, between people who shared a relevant protected characteristic and those who did not. Age, disability and race were protected characteristics under the 2010 Act. The claimants contended that, by offering only an unsuitable alternative location, the defendants had fundamentally failed to discharge the PSED in the process of making their decision because the risk of the soup kitchen closing altogether had not been identified and the impact of closure of the soup kitchen service on vulnerable people had never assessed. Held: The application was granted.(1) The requirement imposed by the PSED was that the decision-maker should be clear precisely what the equality implications were when he put them in the balance, and that those equality implications should be given due consideration side by side with all the other pressing circumstances relevant to the decision. There had to be a structured attempt to focus on the measure’s effects, including undertaking any due enquiry where that was necessary. Here, while very high numbers of people were not directly affected by the impugned decision, there was nevertheless an identifiable group of particularly vulnerable people, many of whom depended on the soup kitchen for their only hot meal each day, and who were therefore, potentially gravely affected by it. That group had been correctly identified by the defendants as potentially directly affected by the revocation decision, and the defendants had correctly assumed that their decision would have a disproportionately adverse effect on that group which included elderly, disabled and other vulnerable people. Although the defendants did not provide the soup kitchen service themselves, and were under no duty to support or facilitate it, the fact was that for more than 20 years, it had facilitated that service by allowing it to use the site without a fee: Harjula v London Councils [2011] EWHC 448 (Admin), Barnsley Borough Council v Norton [2011] EWCA Civ 834; [2011] PLSCS 192; [2011] 30 EG 57 (CS), Branwood v Rochdale Metropolitan Borough Council [2013] EWHC 1024 (Admin) considered. (2) Having recognised and identified a potentially affected vulnerable group, the defendants had failed to follow their own guidance requiring that negative impacts had to be fully and frankly identified so the decision-maker could fully consider their impact, so that the impact assessment was evidence based and accurate. They had failed to identify, in clear and unambiguous terms, the most likely adverse impact the vulnerable group might face as a consequence of the decision proposed; and failed to engage with mitigating measures to address that impact, by failing to engage with the very real prospect that the soup kitchen would close altogether because the third claimant would not move to the alternative site offered if forced to leave the appeal site. Rather than examining and assessing that impact, the defendants instead, examined and assessed a hoped for and much less serious impact. (3) Whether the defendants’ decision was viewed as a single decision to terminate the licence with an offer to relocate made to mitigate the effect of that decision but in no way contingent on such offer, or the offer of an alternative site was viewed as an integral component of the decision to terminate the licence, did not affect that conclusion. However the decision was characterised, given the defendants’ recognition that vulnerable homeless people would be directly affected by their proposed decision, they had a substantive obligation to grapple realistically and frankly with the obvious adverse impacts of the decision they proposed to make by identifying at the very least, those adverse impacts most likely to flow from revocation of the licence, and making a proper assessment of them. Accordingly, the PSED had not been complied with and the decision to revoke the licence would be quashed with a view to reconsideration. Jamie Burton (instructed by Irwin Mitchell Solicitors) appeared for the claimants; Eleni Mitrophanous (instructed by Waltham Forest London Borough Council) appeared for the defendants. Eileen O’Grady, barrister