England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		7th April 2014

MRS JUSTICE SIMLER DBE

1. This is an application for judicial review of a decision dated 17 April 2013, by London Borough of Waltham Forest (referred to below as 'the Council') terminating Christian Kitchen's licence to operate a "soup kitchen" at the Mission Grove car park, London E17 (referred to below as 'Mission Grove'), a Council owned car park, open 24 hours a day. Christian Kitchen, the Third Claimant, is a registered charity, whose trustees organise the soup kitchen (used, inter alia, by the First and Second Claimants). It is staffed entirely by volunteers from a consortium of local churches, preparing and serving hot meals and hot drinks to homeless vulnerable people in Walthamstow for more than 25 years. It provides about 80 hot meals per night and is open for one hour seven nights a week, all year round. Although the Council no longer provides funding (and has not done for many years) it has supported the soup kitchen by permitting Christian Kitchen to use Mission Grove for more than 20 years. The soup kitchen is a well-known local institution attracting praise from politicians and is strongly supported locally. However, anti-social behaviour (including street drinking, violent and intimidating behaviour) has been associated with users of the soup kitchen (albeit its extent is hotly contested) and Walthamstow High Street is undergoing substantial physical regeneration works leading the Council to conclude that the licence at Mission Grove should be revoked.
2. It is common ground that the Council was neither providing the soup kitchen service, nor was it under any mandatory duty to facilitate the continued operation of the soup kitchen, either at Mission Grove or elsewhere and was legally entitled to terminate the licence at Mission Grove (subject of course to compliance with any public sector equality duty engaged by such a decision). It is also common ground that the Council's decision to terminate the licence engages the Public Sector Equality Duty ("the PSED"). Although under no obligation to do so, the Council offered an alternative site for relocating the soup kitchen, on Walthamstow Avenue (referred to as "the lay-by at Crooked Billet") as a way of mitigating the impact of the revocation of the licence at Mission Grove. Christian Kitchen has rejected the alternative site offered on grounds of safety and accessibility. Despite efforts by Christian Kitchen to find its own suitable, alternative site, it has not been able to do so; but has been permitted by the Council to continue to operate from Mission Grove pending the outcome of this judicial review challenge.
3. The original grounds for judicial review challenged the Council's revocation decision on a wider basis than by reference to the PSED. In particular there was a rationality challenge in relation to the alternative site offered; a challenge to the reasonableness of the rejection of the Town Hall complex car park site proposed by Christian Kitchen as a suitable alternative location; a challenge to the failure to consider alternative means of addressing alleged anti-social behaviour in areas close to Mission Grove; and a challenge to the decision on the basis that there was no adequate evidential foundation for the conclusion that such behaviour was caused or contributed to by the presence of the soup kitchen. Permission having initially been refused on all grounds, at a renewed permission hearing the Claimants were given permission (by Mr John Bowers QC, sitting as a Deputy) to proceed on the PSED ground alone, and subsequent clarification established that permission was limited to paragraphs 45 to 49 and 51 of the claim form.
4. Despite the limited scope of permission, at the beginning of the hearing, the Claimants sought permission to rely on expert evidence in the form of a report by Clive Ashby of CA traffic solutions dated 21 January 2014 (served on the Council on 29 January 2014). The report addresses the suitability of the lay-by at Crooked Billet as an alternative location for the soup kitchen as a way of mitigating the impact of its decision to revoke the licence. The Claimants contend that issues regarding safety and accessibility of this alternative site are directly relevant to the question whether the Council complied with the PSED when making its decision. Accordingly whilst expressly disavowing any reliance on the report to maintain that the lay-by at Crooked Billet is unsafe for a soup kitchen location, the Claimants maintain that the expert report is relevant, admissible evidence validating Christian Kitchen's view that the alternative site is unsafe as justifiable and not frivolous. Moreover the Claimants maintain that they are relying on their expert evidence in exactly the same way that the Council relies on its officer evidence that the alternative site is safe. This application was opposed by the Council who contest the conclusions of the expert and the relevance of the evidence in any event. The Council maintain that the assessment of suitability of the alternative site offered is for the Council to determine subject only to the requirement of reasonableness. Since permission to argue that the offer was unreasonable has been refused, it is not open to the Claimants to resurrect this ground by relying on this expert evidence; the expert evidence seeks impermissibly to question the Council's opinion regarding safety, and is irrelevant so ought not to be admitted.
5. Given that the Claimants have permission to argue that the Council's approach to the PSED was flawed for failure to engage with the risk that the soup kitchen would close because of practical concerns raised by Christian Kitchen, the expert evidence is relevant to the validity of Christian Kitchen's views and to demonstrate that Christian Kitchen was justified in reaching these views. However, the evidence cannot be relied on to second guess the decision-maker's opinion; and it is no part of this court's role on this application to determine questions of safety. Subject to those limitations, I concluded that the evidence might be of assistance and in the absence of any identified prejudice to the Council, I gave permission for the Claimants to rely on it. In the event, given a concession made on behalf of the Council it was not relying on any argument that the concerns expressed by Christian Kitchen are unreasonable or frivolous, I have not found it necessary to refer to Mr Ashby's report.
6. The Claimants contend that the decision to revoke the licence at Mission Grove means that the soup kitchen will close because no suitable alternative site has been identified. This being the case, the Council should have considered the likely impact of its decision on vulnerable, disabled and elderly users of the soup kitchen on that basis, rather than on the wholly unrealistic basis that soup kitchen users would suffer little or no detriment because the soup kitchen could relocate to the lay-by at Crooked Billet. The failure to do so was a failure to discharge the PSED and renders the decision unlawful. Put simply, the Claimants contend that there was no proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them and as such the Council could not be clear precisely what the equality implications would be of its decision.
7. The Council denies that it has acted unlawfully. It maintains that the decision to revoke the licence was not contingent on an alternative, suitable site being offered so that any criticism of the offer of the alternative site is irrelevant. Moreover the criticism of the alternative site offered relates to its safety and accessibility which are matters for the Council to determine subject only to questions of reasonableness (not in issue on this judicial review application). In any event the Council maintains that it plainly complied with its public sector equality duty.

The factual background

8. I have been provided with a number of witness statements and exhibits on both sides, all of which have been considered carefully. Even if not expressly referred to, the parties can be assured that all the evidence has been considered.
9. On behalf of the Claimants, I have received four witness statements together with exhibits from Norman Coe, chair of the Christian Kitchen Trustees, who acts on a voluntary basis. He provides supervision and management of the soup kitchen and is employed as a specialist support worker for the Branches Hostel for the street homeless in Walthamstow. He regularly visits the soup kitchen each week and knows most of the street homeless people in the area. There are three statements from Theresa Blake and one from Marlon Morrison, the First and Second Claimants. I also have a witness statement from David Williams, a trustee of Christian Kitchen since May 2013 and a volunteer at the soup kitchen for over 17 years. For the Council I have three witness statements from Keith Hanshaw. He is the Divisional Director Public Realm in the Council's Environment and Regeneration Directorate and had delegated authority to determine the licence at Mission Grove. His department has responsibility for the management of the highway and public spaces and he co-chairs the Council's Locations Board which reports to the Council's Safety Net executive committee.
10. The facts are largely uncontroversial (save in one respect which is not material for my purposes) and can be summarised by reference to this evidence as follows.
11. During 2011 the Council and the Metropolitan Police dealt with complaints about street drinkers and rough sleepers in and around the High Street area, leading to an investigation of the impact antisocial behaviour, noise nuisance, rowdy behaviour and littering was having on the High Street community. A Police Impact Report identified significant support for the soup kitchen; but a mixed attitude to its location with a small majority of residents expressing a preference to have it located away from the High Street and/or in a non-residential area.
12. The minutes of a meeting of the Council's Safety Net executive committee held on 26 September 2012 record at item 3: "high-level agreement to be reached on the proposal to relocate the soup kitchen in Mission Grove East 17 to Argall Avenue… Priority Locations Board Chairs to facilitate discussion with soup kitchen organisers on relocating service to Argall Avenue". The minutes of a subsequent meeting of this committee held on 14 November 2012 record at item 3.4.2: "there was also an update on the soup kitchen where the organisers were being compelled to engage and arrange to relocate their soup kitchen to Argall Avenue freeing the police to focus on enforcing the alcohol restriction zone in the High Street".
13. On 22 November 2012, Keith Hanshaw met Norman Minter and David Williams to discuss solutions to the issues of antisocial behaviour around the High Street car park. Mr Hanshaw states that there was a general discussion about the concerns that the Council had over antisocial behaviour and drinking and that the Council was considering what should be done to address these issues. Mr Coe confirms this and states that whilst mention was made about Christian Kitchen relocating, it was not understood by either Mr Minter or Mr Williams that the Council was actually requiring the soup kitchen to move. It is unsurprising given this lack of clarity that the meeting was not directly focused on the negative impact withdrawal of the Mission Grove licence would have on users of the soup kitchen. Mr Hanshaw states that no indication was given at this meeting that any of the users of the soup kitchen were disabled, or elderly or from any other specific background characteristic; but equally there is no evidence that he asked any questions along these lines. He states that the characteristics of the users as known were that they were homeless, more likely to be unemployed and more likely to have drug and alcohol dependencies.
14. Mr Hanshaw states that at this meeting on 22 November, Mr Williams informed him that those using the soup kitchen were all from the Borough or "a 30 minute bus ride" and that "no two nights are the same – service users are not consistent, you may only recognise a few regular faces". An undated, unsigned minute of the meeting of 22 November 2012 was drawn up by somebody at the Council and sent to Mr Hanshaw on 26 November 2012 (and he confirms its accuracy). It was not sent to Christian Kitchen attendees until 4 February 2013. Its accuracy is disputed in some respects and it is a matter of regret that it was not sent promptly to Christian Kitchen representatives given the apparent heavy reliance placed on it by Mr Hanshaw. Among other matters the following are recorded:

"Keith Hanshaw acknowledges the importance of the soup kitchen as a community provision";

"would the soup kitchen be amenable to relocating?" NM: "Yes depending on where it is relocated…"

DW: "service users nearly all from the borough – or a 30 minute bus ride." [This entry is disputed by Mr Williams. He does not recall making this statement. If he did, he suggests he was attempting to explain (as was the case) that most users of the soup kitchen come from within the borough but that those who do not come from within the borough tend to travel for no further than a 30 minute bus ride. He confirms that to his knowledge few users of the soup kitchen travel by bus; and this inability to access public transport makes it all the more important that the soup kitchen is in an accessible location.]

DW: "No two nights are the same – service users are not consistent, you may only recognise a few regular faces. Difficult to engage with service users for referral."

15. Following the meeting in November, Mr Hanshaw and his staff investigated possible alternative locations for the soup kitchen by visiting alternative sites. Mr Hanshaw states that he was focused on accessibility and safety but was also looking for locations where antisocial behaviour would be less likely and where if it did occur it would be less intrusive on the local population. He states "in relation to any site considered, I had in mind factors such as who would be going there, how would they get there, is it by car, or by bus, walking and, if walking, is it accessible and safe for users, and how close to public transport links etc. In assessing accessibility I had in mind the elderly, disabled, and women. This is a fundamental aspect of my area of expertise and work."
16. From 4 December 2012, the Police carried out "Operation Christmas Tide" for four weeks to address incidences of anti-social behaviour, but found that these issues persisted.
17. Before assessing the proposed alternative site (which he did prior to a second meeting with Christian Kitchen on 14 February) Mr Hanshaw states that he drove past the soup kitchen when it was operating and observed the van and its service users. He states: "from my observation at the time, the users were male and appeared to be mostly what I would term younger men i.e. less than 45 years old. I did not see any tables or benches and had not to my recollection at that time been informed by Christian Kitchen that they had table and benches. On that occasion I did not see any female service users or users noted as being disabled. However, I presumed that some of the users would be female and that some might be older than those I had observed on that occasion. When assessing the alternative site I considered it having in mind that it needed to be accessible to all, i.e. male, female, elderly and/or disabled."
18. A second meeting with Christian Kitchen representatives (Mr Minter and Mr Williams) and the Council took place on 14 February 2013. Mr Hanshaw advised that anti-social behaviour remained a significant problem and the perception of the community was that street drinkers were staying in the area because they were users of the soup kitchen. Minutes of the meeting record Mr Hanshaw advising that as a result, "it is the view of the Council that the soup kitchen therefore cannot stay in Mission Grove and are therefore being asked to leave. It is not feasible long-term for them to stay, with £5.5 million being invested in the area and Walthamstow being a Council priority area." Mr Hanshaw explained that Argall Business Park was considered for relocation but the Council owned car park was transferring out of Council ownership; and that the lay-by at Crooked Billet was "the only feasible option. It is on a bus route, and it is not residential." Mr Hanshaw showed Christian Kitchen representatives photographs of the proposed location showing a lay-by situated next to the junction of Walthamstow Avenue and the Holiday Inn Hotel, adjacent to the North Circular.
19. Mr Minter agreed to take the issue to the trustees as he could not make a decision by himself but noted the Council's decision that the soup kitchen could not stay in Mission Grove. A timeframe of four weeks for discussion with trustees was agreed and the minute records that "after this, two weeks would be a feasible timescale to relocate." There is no evidence that these minutes were sent to Christian Kitchen representatives. Mr Coe states that after using Mission Grove for 20 years he and other Christian Kitchen representatives were shocked at the "sudden and unjust eviction" and concerned by the lack of adequate notice. The Council subsequently extended the deadline to six weeks.
20. There is no evidence of (and nothing in the minutes of this meeting to suggest) discussion with Christian Kitchen representatives about soup kitchen users or their protected characteristics; nor did Mr Hanshaw mention his observations that users were mostly male and under 45. Nor is there any evidence of any discussion about safety and accessibility of this alternative site beyond the reference to it being on a bus route.
21. Mr Hanshaw states (at paragraph 15 of his second witness statement) that up to 22 February 2013 when the decision notifying Christian Kitchen of the Council's intention to terminate the licence at Mission Grove was communicated, he had not asked for a formal report or an equality analysis to be written up. He states that he had all the relevant information and had not at that point considered it necessary for a report or equality analysis to be prepared.
22. By email dated 19 March 2013 addressed to the trustees of Christian Kitchen, Mr Hanshaw wrote to advise that the Christian Kitchen now had two weeks within which to relocate the soup kitchen to the lay-by at Crooked Billet on Walthamstow Avenue. The email reiterated an offer made at the meeting on 14 February 2013, to provide support in Mission Grove in the days following the move by signposting service users and providing directions to the new location, together with leaflets advising soup kitchen users of the new location.
23. By a detailed pre-action protocol letter before action dated 22 March 2013, Irwin Mitchell (solicitors for the Claimants) invited the Council to revoke its decision and to consult the organisers of Christian Kitchen and users of the soup kitchen regarding whether the soup kitchen needed to be relocated and if so, to which location. The letter set out a number of bases of challenge to the Council's decision including an allegation that the Council had failed to have due regard to the needs specified under the PSED in relation to the impact of its decision on women, the disabled and older people.
24. The letter provided detailed information about the individual Claimants: in relation to Ms Theresa Blake, described as a vulnerable disabled woman, street homeless and a user of the soup kitchen every night for 10 years, it explained that she "suffers from arthritis in her legs, meaning that she can walk only short distances. In its current location given its centrality, Theresa is able to walk to the kitchen. She is extremely concerned that if the kitchen were moved to a more remote location, she would not be able to access its facilities". It continued that she cannot afford the bus fare if the soup kitchen was relocated to the lay-by at Crooked Billet. Moreover, her friends and acquaintances who regularly use the soup kitchen include some very old and vulnerable people all living close to the soup kitchen at Mission Grove (an 83 year old man was expressly identified), and they would not be able to access its services if it moved to Crooked Billet. Further, Ms Blake felt safe using the kitchen at its present well lit, relatively heavily populated location but would feel unsafe as a woman on her own in the area in and around Crooked Billet. Similar points were made about Marlon Morrison and his inability to afford the bus fare to Crooked Billet. Irwin Mitchell stated that they had seen no evidence that the Council had considered the number of people who would be adversely affected by this proposal, analysed the impact of the proposal on them or considered whether the negative impact could be avoided or mitigated in a more appropriate way than by proposing relocation to the lay-by at Crooked Billet.
25. On 2 April 2013, the Council met with representatives of Christian Kitchen and it was agreed that all parties would consider other possible locations for the soup kitchen; and that a further meeting would be arranged as soon as possible. An email dated 3 April 2013 confirms this.
26. By letter dated 4 April 2013 the lawyer acting for the Council, Robin Levett responded to Irwin Mitchell's letter. He stated that the Council recognised that users of the soup kitchen are among the more deprived members of society, but that the Council neither delivers the service nor has responsibility to provide a site for its provision. He stated that any equalities impact was a factor to be taken into account in decision making, the weight of which depended upon the circumstances of the case but was not generally an overriding factor. He further stated that it was for Christian Kitchen if unhappy with alternative locations offered by the Council to find its own site, but that the Council had nevertheless considered the equalities impact of a relocation decision.
27. In his witness statement Mr Hanshaw explains that as a consequence of the correspondence from Irwin Mitchell raising issues concerning the PSED he arranged for a written report to be prepared in relation to the soup kitchen decision and for an equality analysis to be written up before giving further consideration to the decision he had already taken. He states that it was agreed he would reconsider the decision taken in light of representations being made.
28. Mr Hanshaw arranged for an equality analysis report ("the Equality Analysis") to be prepared but did not himself draft the report or the equality impact assessment dated 4 April 2013, which were drafted by officers briefed by him. However he makes clear that the final approval of the contents of any such report lies with himself and that he was the decision-maker in this case.
29. On 9 April 2013 Mr Hanshaw met with Norman Coe and other representatives of Christian Kitchen to discuss the relocation of the soup kitchen and in particular the possibility of an alternative site in one of the car parks within the Town Hall complex raised by the Claimants as a viable alternative location.
30. At that meeting Mr Hanshaw was provided with a document prepared by Christian Kitchen dated 8 April 2013 setting out its response to the Council's proposed termination of the licence at Mission Grove. The document rejected as "outrageous and provocative" the proposed relocation site to the lay-by at Crooked Billet, described as being next to the main entrance to the Holiday Inn Hotel on a busy feeder road, with heavy vehicles passing constantly, including buses accessing the nearby Sainsbury's superstore. It raised safety concerns about this location both so far as users and volunteers were concerned, attaching photographs to illustrate concerns raised. At paragraph 4 the document stated: "the Christian Kitchen will not relocate to [the lay-by at Crooked Billet] ... which is considered as both inappropriate and dangerous." It stated that the soup kitchen should operate from a central location in the Borough, accessible and safe both to service users and volunteers. Although the document indicated that Christian Kitchen would have to look to a church partner with a car park if forced to relocate, none was actually identified as a possibility, and the document suggested an alternative site within one of the car parks in the Town Hall complex (also illustrated by photographs), as more central, and a more desirable location for vulnerable people including those with a disability and women who need to feel safe.
31. Also on 9 April 2013, Mr Hanshaw wrote by email to Christian Kitchen, explaining that the Town Hall complex was in regular use most evenings including at weekends and that the Council could not agree to relocating the soup kitchen there.
32. On 17 April 2013, Mr Hanshaw approved a report by the Head of Public Realm Business and Contracts Unit ("the Report") recommending that the permission for the soup kitchen to use the Mission Grove car park be revoked with effect from 15 May 2013 and offering by way of alternative site, the lay-by at Crooked Billet. The report referred to and attached the Equality Analysis.
33. By letter dated 17 April 2013 from Keith Hanshaw to Norman Coe the former stated that he was in a position to confirm that he had looked at all the evidence again and concluded that the Council still required the soup kitchen to move from Mission Grove. To assist in planning for this move he proposed to allow continued use of Mission Grove until Wednesday 15 May 2013. He stated that he had considered the request to use the Town Hall car parks but had concluded they were unsuitable and inappropriate for such a use. Subsequent correspondence made clear that the decision-making was embodied in the Report (with attached Equality Analysis) and a copy was provided to the Claimants' solicitors later in April.
34. By a further formal letter before action dated 30 April 2013, Irwin Mitchell (then acting on behalf of the individual Claimants, with Christian Kitchen identified as an Interested Party) challenged the Council's decision on a number of grounds including failure to comply with the PSED. Relevantly, the letter stated that the Equality Analysis was predicated on the basis that users of the current soup kitchen site would be able to access the proposed new site; but that neither of the individual Claimants would in fact be able to access the proposed new site, and Christian Kitchen was firmly of the view that to move to the proposed new site would in effect close down the soup kitchen. Accordingly it was argued that the Equality Analysis was fundamentally flawed.
35. The Council responded by email dated 30 April 2013 reiterating that Christian Kitchen was a bare licensee at Mission Grove and asserting that Christian Kitchen representatives had made it clear that if prevented from continuing to use Mission Grove, a number of their sponsoring churches had car parks from which the soup kitchen could operate that would be accessible to clients. Christian Kitchen was invited to identify their own alternative on this basis. A fuller response was sent by email dated 10 May 2013 reiterating that the Council had had in mind the impact on soup kitchen users of its decision as demonstrated by the Equality Analysis; that it sought to mitigate any impact on protected groups by offering an alternative site; and had likewise considered any issues associated with the alternative site and how those could be mitigated. It concluded that the Council had complied with the PSED.
36. As a result of subsequent further discussion and correspondence since the impugned decision (including a letter from the Holiday Inn Hotel objecting to the proposed relocation of the soup kitchen to the lay-by at Crooked Billet) the Council has identified two other sites at Crooked Billet as possible relocation sites; and has offered to put up guardrails and suggested that volunteers could wear high visibility clothing for their safety if likely to be entering into the carriageway during a soup kitchen service.
37. However, the trustees of Christian Kitchen continue to believe that each of the sites identified on Walthamstow Avenue near the Crooked Billet roundabout are inaccessible, unsafe and unsuitable for users and volunteers, particularly users who are elderly or disabled. Mr Coe states that Christian Kitchen does not believe vulnerable users of the soup kitchen will be able to travel to the new site and there is also concern about potential legal liability of the charity in respect of road traffic accidents involving users and volunteers at the proposed new sites. As indicated, Ms Mitrophanous did not argue that the safety concerns expressed by Christian Kitchen are unreasonable or frivolous, but maintains that the Council has a different view, and regards all three alternative sites as safe and accessible for the soup kitchen users.
38. Mr Coe also states that the trustees have continued to explore the possibility of alternative sites in church car parks within the area but that despite efforts to date the only offer that has been made is by St Michael's and All Angels which has offered to allow Christian Kitchen to provide its service from the church car park there on Monday evenings. No further offers have been received and Mr Coe states that the soup kitchen cannot sensibly operate for just one day a week. The likelihood accordingly is unchanged, and is that the soup kitchen will close altogether as a consequence of the Council's decision.
39. Finally in relation to the evidence, a number of surveys of users have been conducted by Christian Kitchen since the Council's decision. The surveys consistently show that the majority of users are homeless and not in receipt of state benefits; the vast majority walk to the soup kitchen; and they cannot afford to travel by bus. In response to a suggestion in the Equality Analysis and paragraph 30 of Keith Hanshaw's second witness statement that information could be provided to soup kitchen users about bus passes, Mr Coe explains in his third witness statement the difficulties faced by homeless people unable to afford public transport but also unable to satisfy the requirements for being issued with a Freedom pass, even if notionally eligible for one. Mr Hanshaw responded to that statement at paragraph 12 of his third witness statement identifying a London Councils' policy agreeing generally a number of acceptable proofs of residence (etc.) from homeless applicants and concluding that: "It is therefore not the case that someone who is homeless is unable to get a Freedom Pass. The Council has discretion to accept other proofs as indicated ….". No policy document setting out this position is attached to Mr Hanshaw's statement; nor has any evidence been provided that this statement has been adopted by the Council and relates to the obtaining of Freedom passes. The Council has a website setting out the procedure for applying for a Freedom pass for certain disabled people and for older residents of the Borough. No provision whatever is made for homeless applicants on the website. In oral argument, Ms Mitrophanous was forced to accept that the so-called policy referred to by Mr Hanshaw is neither published nor public, and is merely an example of what the Council is prepared to do in future.

The Report and Equality Analysis

40. The report, containing the reasoning for the decision to revoke the Mission Grove licence made three recommendations:

(i) that Christian Kitchen should cease to operate from Mission Grove in order to address concerns of the Police and the negative and detrimental impact some users of the service had on local residents and businesses;

(ii) that Christian Kitchen should be given notice that the license would be revoked with effect from 15 May 2013; and

(iii) that the Council should repeat its offer of an alternative location at the lay-by at Crooked Billet.

41. The background to the decision is set out at length identifying and describing the nature and effect of the antisocial behaviour associated or perceived to be associated with users of the soup kitchen. At paragraph 5 the Report refers to alternative locations for the soup kitchen considered, explaining

(i) that it is for Christian Kitchen organisers to decide on an alternative location; and

(ii) although under no obligation to do so the Council had offered the lay-by at Crooked Billet, a site well served by public transport. The report states "at the time of writing the Christian Kitchen have expressed a reluctance to take up this offer." Other alternatives raised during meetings are referred to (including relocating to a church car park) and in particular the Town Hall complex car park is addressed but rejected as unsuitable and inappropriate. Under the heading equality implications the Equality Analysis is referred to and attached.

42. The Equality Analysis sets out the purpose of such an analysis, the nature of the PSED and gives summary guidance to officers and decision makers on compliance with the PSED, including identifying eight key principles for compliance during the decision-making process. These include that the Equality Analysis must be evidence-based and accurate – negative impacts must be fully and frankly identified so the decision-maker can fully consider their impact; and conscious, open-minded consideration must be given to the impact of the duty on the decision.
43. The Equality Analysis summarises the proposal and rationale for relocating the soup kitchen from Mission Grove stating that the "negative impact of the behaviour associated with the service users outweighs the benefits of the service". It continues that Mission Grove is no longer the appropriate venue for the service; and that having considered a number of alternative sites,

"the only option which meets the soup kitchen's needs is the one being proposed. The new location is easily accessible as it, like the Mission Grove site, is within easy reach of major bus routes. Crucially, unlike Mission Grove, it is in a non-residential area… the new location provides a more suitable site for the soup kitchen without long-term inconvenience to service users."

44. The Equality Analysis identifies as the group most directly affected by the decision, service users and potential service users of the soup kitchen. It also identifies in addition, all users, residents and local businesses and licensed street traders of the Walthamstow High Street area.
45. So far as detailed considerations of relevant protected characteristics are concerned, age, disability and race are principally identified and no criticism is made in this regard. In relation to 'age' the Equality Analysis sets out key borough statistics, concluding that no substantive data exists regarding groups who are service users, but that anecdotal evidence suggests the majority of service users are adults. In terms of impact, it identifies that the proposed change of location could have a potential adverse impact on older service users, some of whom may have mobility difficulties and may find it difficult to access alternative locations or may be unable to afford travel fares. Mitigation measures proposed are;

(i) providing assistance with signposting the new location by leaflets etc;

(ii) providing details of bus routes to the new location and eligibility information for Freedom passes for older users;

(iii) offering continued assistance to the charity for example in finding a location for food preparation; and

(iv) exploring opportunities to publicise any further services available locally such as drug and alcohol support, food banks, homelessness support.

46. In relation to 'disability', similar points are made. No data beyond anecdotal data was available to indicate whether there are any disabled service users, however the Equality Analysis proceeds on the basis that it is more than likely that some users may have a disability including mental health, physical and/or learning disabilities. In terms of impact on the Council's equalities aims, the Equality Analysis identifies a

"short-term negative impact on the ability of service users to reach the soup kitchen, resulting in a short-term decrease in uptake of the service including for those with a disability."

It goes on however to state that as the proposed new location is within easy reach of several bus routes it is not expected that access will be adversely affected for those with physical disabilities and reduced mobility; and that although there may be a cost implication in relation to travel for some users, given the new proposed location within the Borough it is not expected to be significant. In addition it states "some service users are already travelling up to 30 minutes bus ride to get to the service". The report also states that there is a likelihood that service users who may have learning disabilities and/or mental health problems may find it difficult to adjust to the new location in the short term which could have an adverse impact on this group. Similar mitigating measures as for "age" are proposed.

47. In relation to 'race' the report identifies anecdotal evidence suggesting that a large percentage of users of the soup kitchen are likely to be from new migrant communities, especially from eastern Europe with no access to benefits. The report recognises that relocation of the soup kitchen will affect this group disproportionately but states that there is no evidence to suggest that the service users will not be able to access the soup kitchen in its new location. No mitigating actions beyond those identified under age and disability are proposed, save that publicity and communication material produced would need to be accessible, inclusive and easy to understand.
48. Additional benefits and risks of the proposal on advancing equality and fostering good relations are addressed at page 16, with actions to be taken to avoid or mitigate any negative impact also addressed.
49. In its conclusion on page 17, the Equality Analysis states:

"This analysis has concluded that while the relocation may disproportionately impact certain groups, specifically service users from the Eastern European communities, and potentially older and disabled service users who may be homeless/unemployed and on low incomes, there is no evidence to suggest that long-term the relocation will affect their ability to access the soup kitchen. Further it will benefit all users of the High Street area, including those with protected equality characteristics, by addressing related antisocial and violent behaviour which is currently having an adverse impact upon them."

The applicable legal principles

50. The public sector equality duty is found at section 149 of the Equality Act 2010 and requires public authorities to give due regard to the need

(i) to eliminate unlawful discrimination and harassment and other conduct prohibited by the act;

(ii) to advance equality of opportunity between people who share a relevant protected characteristic and those who do not share it; and

(iii) to foster good relations between people who share a relevant protected characteristic and those who do not share it.

Age, disability and race are protected characteristics under the Act.

51. Section 149(3) provides relevantly that having due regard to the need to advance equality of opportunity involves having due regard to the need to

(a) remove or minimise disadvantages suffered by people who share a relevant protected characteristic that are connected to that characteristic; and

(b) take steps to meet the needs of persons who share a relevant protected characteristic different from others.

52. Section 149(4) provides that steps involved in meeting the needs of disabled people that are different from the needs of people who are not disabled include in particular, steps to take account of disabled people's disabilities.
53. Section 149(5) (relied on particularly by the Council) provides that having due regard to the need to foster good relations between people who share a relevant protected characteristic and people who do not involves having due regard in particular to the need to tackle prejudice and to promote understanding.
54. The law concerning section 149 and the "due regard" obligation is now well established. It has been summarised in a number of cases and the following principles identified in these cases are not in dispute:

(a) The importance of the duty as an integral and important part of the mechanism for ensuring the fulfilment of the aims of anti-discrimination legislation has been repeatedly emphasised: Elias v Secretary of State for Defence [2006] EWCA Civ 1293 at [274].

(b) The duty applies to the exercise of all public authority functions even where the relevant decision relates to a public authority's private law arrangements such as the termination of a private contract or licence: see for example, Barnsley Borough Council v Norton [2011] EWCA Civ 834 relating to possession proceedings in relation to residential property.

(c) The question whether a decision maker has had due regard is a question of substance, not form or box ticking. The duty must be performed with "rigour and an open mind": Brown v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) at [92].

(d) The duty must be fulfilled before and at the time a particular policy is being considered, and not afterwards. It is an "essential preliminary" to an important decision rather than "a rearguard action" following a concluded decision: Kaur & Shah v LB Ealing [2008] EWHC 2062 (Admin) at [23-24].

(e) There must be an analysis of the material "with the specific statutory consideration in mind". What observance of the duty requires however, is fact sensitive and varies from case to case.

(f) In a case where large numbers of vulnerable people, very many of whom fall within one or more of the protected groups, the due regard necessary is very high: see Hajrula v London Councils [2011] EWHC 448 (Admin) at [62].

(g) In considering the impact, the authority must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated.

(h) The PSED may involve a duty of enquiry. If the relevant material is not available, there will be a duty to acquire it and this will mean some consultation with appropriate groups is necessary.

(i) However, as Elias LJ held in Hurley & Moore v Secretary of State for BIS [2012] EWHC 201 (Admin, Div Court) at [78]: "The concept of due regard requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision-maker. In short, the decision-maker must be clear precisely what the equality implications are when he puts them in the balance and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors."

(j) A sense of proportionality and reality is required. If a fair reading of the equality analysis makes clear that the decision-maker considered and conscientiously applied his or her mind to the relevant equality impact or impacts of the proposed decision, the court will not micromanage such decisions: Branwood v Rochdale Metropolitan Borough Council [2013] EWHC 1024 (Admin) at [66] to [67 ].

55. The Claimants attack Keith Hanshaw's decision to revoke the Mission Grove licence, offering only an unsuitable alternative location, on the footing that there was a fundamental failure to discharge the PSED in the process of making this decision because the risk of the soup kitchen closing altogether was not identified and the impact of closure of the soup kitchen service on vulnerable people was therefore never assessed. Mr Burton submits that the Equality Analysis is entirely silent about that very real risk of closure. The failure even to acknowledge that risk and address its impact is, he submits, startling given Christian Kitchen's response document of 8 April 2013 (rejecting the proposed alternative site as unsafe and inaccessible and refusing to move there) and given the significant practical difference this would make to the impact being assessed.
56. For the Council Ms Mitrophanous submits that there is a flaw in this argument. The decision under challenge (to revoke the licence) was not contingent on a suitable alternative site being offered. This is made plain in the Report which recommended revocation of the licence and separately, that an offer of an alternative site be repeated; and in the decision itself. Moreover, that the decision to revoke the licence was not contingent on any offer of an alternative site is also confirmed by Mr Hanshaw in his witness statement: see paragraph 2 of his first witness statement and paragraph 6 of his third witness statement. This being the case she argues, any criticisms of the alternative site offered are irrelevant (and all the more so since the Council was legally entitled to revoke the licence without making any offer at all, as the Claimants concede) and in any event, relate to mitigation measures offered as a way of reducing the impact, the reasonableness of which are not open to challenge.
57. In any event, the Council submits that Mr Hanshaw clearly understood the risk that the soup kitchen might close and he has given evidence that he was well aware of this risk in his witness statement. The Equality Analysis proceeded on the assumption that the mitigation measure offered (which was the only mitigation step available) would be taken up so that the impact assessed necessarily depended on that assumption. Ms Mitrophanous submits that the risk of the soup kitchen closing was so obvious that it did not need to be expressly identified, and in any event as Mr Hanshaw has stated (see paragraphs 13, 23 and 30) at the time of the decision the lay-by at Crooked Billet was the only feasible option and nothing else was available. Despite this the Council carried on looking and this is how further sites at Crooked Billet were identified. The duty to 'have due regard' is a duty to balance the impact against the countervailing factors and in doing so to address the mitigating steps available. However there is no duty to secure a particular outcome and the Council cannot in the circumstances of this case be criticised. This is not a case involving large numbers of vulnerable people so that the due regard necessary is not as high as in cases involving large sections of the population. This is a case where the Council identified the vulnerable people potentially affected; it identified the problems they might face as a consequence of the decision proposed; and then identified mitigating measures to address those problems. This was not the generalised or tick box exercise criticised in some cases but a focused consideration on specific issues arising in respect of the risk to disabled elderly and other vulnerable people if the alternative site offered was taken up by way of mitigation measure.

Conclusions

58. The question raised by this judicial review challenge concerns the application of well established principles to the particular facts and circumstances of this case.
59. The requirement imposed by the PSED is that the decision-maker should be clear precisely what the equality implications are when he puts them in the balance, and that these equality implications should be given due consideration side by side with all the other pressing circumstances relevant to the decision. There must be a structured attempt to focus on the measure's effects, including undertaking any due enquiry where that is necessary. Here, while very high numbers of people are not directly affected by the impugned decision, there is nevertheless an identifiable group of particularly vulnerable people, many (or most) of whom depend on the soup kitchen for their only hot meal each day, and who are therefore, potentially gravely affected by it. This group was correctly identified by the Council as potentially directly affected by the revocation decision, and the Council (again correctly) assumed that its decision would have a disproportionately adverse effect on this group which includes elderly, disabled and other vulnerable people. Although the Council did not provide the soup kitchen service itself, and was under no duty to support or facilitate it, the fact is that for more than 20 years, it did facilitate this service by allowing it to use Mission Grove without a fee.
60. What the Council failed to do however, having recognised and identified a potentially affected vulnerable group, is follow its own guidance requiring that "negative impacts must be fully and frankly identified so the decision-maker can fully consider their impact" so that the impact assessment is "evidence based and accurate". It failed to identify in clear and unambiguous terms, the most likely adverse impact this 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 Christian Kitchen would not move to the alternative site offered if forced to leave Mission Grove. Rather than examining and assessing this impact, the Council instead, examined and assessed a hoped for and much less serious impact.
61. Whether the Council's decision is 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 is viewed as an integral component of the decision to terminate the Mission Grove licence, does not affect that conclusion. However the decision is characterised, given the Council's recognition that vulnerable homeless people would be directly affected by the Council's proposed decision, it had a substantive obligation to grapple realistically and frankly with the obvious adverse impacts of the decision it 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.
62. Mr Hanshaw states that he was well aware of and did engage with the obvious risk that the soup kitchen would close altogether. The assertion in evidence that he was fully aware of the possibility that the soup kitchen would close might be sufficient if supported by evidence to that effect in the contemporaneous documents, or on an analysis of the facts. Although paragraph 5.1 of the Report states in relation to the relocation site offered "..at the time of writing the Christian Kitchen have expressed a reluctance to take up this offer", there is nothing more in the Report, and nothing at all in the Equality Analysis to demonstrate engagement with this obvious risk, nor evidence of any actions taken at the time in response to it. Rather the Report repeatedly links the recommendation to revoke the licence at Mission Grove with the offer of an alternative site (see paragraphs 1.3, 2.1-2.3, and 8.1-8.2). Again, instead, the Equality Analysis is entirely focused on the less negative, less serious impact of relocation of the soup kitchen to Crooked Billet. Indeed neither the fact that Christian Kitchen had made it clear that they would not move to Crooked Billet, nor the possibility of the soup kitchen closing altogether as a consequence, are even mentioned in the Equality Analysis.
63. Page 3 of the Equality Analysis contains a summary of the dialogue between Christian Kitchen and the Council, and reference is made to the dates of meetings between the two sides. However, no reference is made to the 8 April response document; or to the objections expressed by Christian Kitchen in relation to the proposed relocation site, and the fact that they would not go there. Instead, the opposite impression is created by the Equality Analysis which states:

"A number of alternative sites were considered however the only option which meets the soup kitchen's needs is the one being proposed. The new location is easily accessible as it…. is within easy reach of major bus routes .. (and)… is in a residential area."

This gives the distinct impression to the reader that far from objecting to relocating, the proposed new site is regarded as the only suitable site that will meet the soup kitchen's needs; and that accessibility of that site for users and volunteers presents no issue. Whether this was a deliberate attempt to down-play the adverse effects of the decision and exaggerate its benefits, I know not; but it creates significant doubt that the true impact of the decision was properly appreciated.

64. Moreover, even if the risk of closure was appreciated, that risk is not addressed in any of the impact assessments set out in the Equality Analysis, nor are mitigating steps addressed to this risk. Thus, in answer to the question posed in the Equality Analysis

"what is the proposal's impact on the equalities aims? Look for direct impact but also evidence of disproportionate impact ..",

in relation to each protected characteristic, the Equality Analysis identifies the proposed change of location as having a potential adverse impact on the particular group, because mobility difficulties or cost may make it difficult for users to access the alternative location; and is silent on closure of the soup kitchen altogether. Similarly, the mitigating measures proposed in each case are all to do with accessing the proposed new location for the soup kitchen; and there is no consideration whatever of mitigation measures addressed at reducing or avoiding the impact of closure altogether. The Equality Analysis concludes that while "the relocation may disproportionately impact certain groups … potentially older and disabled service users who may be homeless/unemployed and on low incomes, there is no evidence to suggest that long-term the relocation will affect their ability to access the soup kitchen. …". Closure of the soup kitchen forms no part of this consideration.

65. Furthermore, it was only following communication of the Council's revocation decision and disclosure of the Report and Equality Analysis, that there were discussions between the Council and Christian Kitchen about steps that could be taken to try to address safety concerns raised about Crooked Billet and its lack of accessibility for users. Had the Council recognised the risk of closure of the soup kitchen as part of its analysis, this work might have been undertaken as part of the impact assessment process, and would have featured in the balancing exercise.
66. Finally, the impact addressed and assessed by the Council is repeatedly described as 'short-term' and the actions identified by the Council are all based on the short-term negative impact of relocation. A risk of closure altogether could not realistically be described as short-term.
67. Accordingly, there is nothing in the contemporaneous evidence (whether in the Report, Equality Analysis or elsewhere) or on a proper analysis of the facts, showing that Mr Hanshaw had any, still less a full appreciation of the most likely and most serious negative impact for soup kitchen users posed by the proposed licence revocation; or if he did, nothing to show that this negative impact was fully and frankly identified, and its impact addressed. In this regard, the Equality Analysis failed to comply with the Council's own guidance and there is nothing to demonstrate that Mr Hanshaw weighed this impact in the balance. Unlike in MA & others v Secretary of State for Work & Pensions [2014] EWCA Civ 13 where it was obvious that the Secretary of State was aware of the very serious impact the "bedroom criteria" would have on disabled people, and that was why so much effort was devoted to seeking a solution to the problem, there is no material here from which it can be inferred that the most likely negative impact was identified or assessed, nor evidence of steps taken to consider how best to mitigate the effects of that impact.
68. The PSED is of course not concerned with the lawfulness or adequacy of the solution proposed or adopted, but with the lawfulness of the process. Here there was no evidenced consideration of the most likely adverse impact of the Council's decision and no contemporaneous regard was had to the possibility of the soup kitchen closing altogether, so that this was a flawed process. This is not a question of micro-managing an exercise already undertaken or exploring matters ad infinitum applying an unnecessary degree of forensic analysis. The failure here was at a basic level. The result is that although the Council, through Keith Hanshaw, directed its mind to relocation, it ignored what Christian Kitchen had told it about not moving to the only alternative site proposed. Accordingly, it never directed its mind to what mitigating steps could be taken to lessen the impact of closure of the soup kitchen on its users, for example by exploring what other avenues might be available for free hot meals/drinks to be provided to the homeless and destitute; or how the gap created by closure of the soup kitchen might be filled. This was a failure to have the necessary due regard and not merely a question whether mitigating steps are adequate or not.
69. Finally, and in addition, even in relation to the actual impact identified by the Equality Analysis, there appears to be a wholly unrealistic approach by the Council. The finding at page 5 (that the change of location could have a potential adverse impact on users, "some of whom may have mobility difficulties and may find it difficult to access alternative location or may be unable to afford travel fares") is, on its face, internally inconsistent with the conclusion at page 17 that "while the relocation may disproportionately impact certain groups … potentially older and disabled service users who may be homeless/unemployed and on low incomes, there is no evidence to suggest that long-term the relocation will affect their ability to access the soup kitchen. …". Nowhere in the Equality Analysis does the Council explain how it can be said that in the long term the relocation would not affect the ability of service users to access the soup kitchen. The only way this internal inconsistency can be explained is by reference to an assumption (by the Council) that users will be able to reach the soup kitchen at its new location by bus. Indeed in relation to disability the assessment states that the "proposal is likely to have a short-term negative impact on the ability of service users to reach the soup kitchen… (but) as the proposed new location is within easy reach of several bus routes, it is not expected that access will be adversely affected for those with physical disabilities and reduced mobility."
70. There is no evidence basis for this assumption identified in the Equality Analysis; and no attempt to establish its accuracy was made by the Council. Given that users of the soup kitchen are the disenfranchised and street homeless without fixed abodes, it is significantly more likely that they will not be able to access public transport as asserted. Moreover this probability was expressly drawn to the Council's attention by reference particularly to Ms Blake and her elderly friends and acquaintances in the PAP letter of 22 March 2013 from Irwin Mitchell, prior to the equality assessment being completed.
71. In any event, the statement fails to accord with reality or common sense: a move from a central, busy location on the High Street to a lay-by adjacent to the North Circular close to the Crooked Billet roundabout in a non-residential area (not identified as close to any homeless hostels) is bound to create difficulties with access; not least because people are likely to start their journey to the soup kitchen from a more central area of town where other facilities are located, rather than from an area closer to a lay-by off the North Circular, where no facilities likely to be accessed by homeless people are located. The suggestion in argument that relocation to the lay-by at Crooked Billet is likely to attract other soup kitchen users for whom this new location is more convenient is unsupported by any evidence and defies common sense. Moreover, a move of soup kitchen location from a relatively heavily populated central area of town to the non-residential out of town area in and around Crooked Billet, visited at night (whatever the lighting conditions), would inevitably lead lone women and other vulnerable people to feel unsafe and impact on the accessibility of the soup kitchen.
72. In any event, the Council identified the fact that access to the alternative location might be made worse by mobility difficulties and an inability to afford travel fares, yet the mitigation measures proposed by way of addressing those impacts are largely irrelevant to them – for example, signposting measures and the like. Nowhere does the Council engage with the practical impacts its analysis actually identifies, and there does not appear to have been the "conscious and open minded consideration" of the impact required by the PSED.
73. I accept Ms Mitrophanous's submission, that where the PSED has been properly complied with, the weight to be attached to the countervailing factors for adopting the challenged policy is for the Council, and can only be reviewed by this Court on an irrationality basis. I also accept that the Council has no duty to fund this service or to provide the soup kitchen with a site from which it can operate and was legally entitled to revoke the licence. It had difficult choices and priorities to balance. However, the Council can only resist the challenge, relying on these arguments, if there has been the necessary rigorous consideration of the PSED in this case, involving a proper appreciation and consideration of the potential impact of the decision to revoke on equality objectives and the desirability of promoting them.
74. I have come to the conclusion that the PSED was not complied with here. The risk of closure was not considered and weighed in the balance, and the impact of closure was not assessed and steps to mitigate this impact were not addressed. Mr Hanshaw did not properly appreciate, or if he did, failed to address the most likely adverse impact of the revocation decision, namely closure of the soup kitchen altogether. This failure meant that the process was vitiated from the outset and was never put right. The Council should have considered the likely impact of its decision on the vulnerable users of the soup kitchen on the basis that the soup kitchen would close rather than on the wholly unrealistic basis that they would suffer little or no detriment because the soup kitchen could relocate to the lay-by at Crooked Billet which was well served by public transport. Thus although an impact assessment was carried out here, it did not provide the analysis and information necessary to discharge the duty to have focussed due regard in the circumstances of this case, and neither the Council nor Keith Hanshaw could be clear precisely what the equality implications would be of any decision to terminate the licence at Mission Grove.

Relief

75. Ms Mitrophanous submits that even if there was a failure to comply with the PSED in this case, given that the Claimants accept that there is no legal obligation to offer an alternative site, and no other alternative sites are available, I should limit relief to a declaration only. Mr Burton submits on the other hand, that whilst the decision to revoke the licence may ultimately be maintained, the fact that no other alternative sites are available does not preclude the requirement to re-take the decision. This was, he submits, a politically contentious decision and the outcome of a fresh consideration of these issues cannot safely be predicted.
76. The failure to comply with its public sector equality duty ordinarily entails that relief should be granted against the public authority concerned, because a decision reached without due regard to the PSED is an unlawful decision. Given the importance of the duty in fulfilling the aims of the anti-discrimination legislation, unless there are strong discretionary arguments to the contrary, the decision should be quashed in these circumstances.
77. I am not persuaded that there are any grounds for limiting relief to a declaration only. The need for clear well informed decision-making when assessing potentially grave adverse impacts on some of the most vulnerable members of society is particularly important in the current economic climate. I cannot exclude or discount the possibility that recognition and consideration of the most likely negative impact of a decision to revoke the Mission Grove licence, may lead to the conclusion that other steps are available to mitigate that impact, or that a different decision might be reached.
78. In my judgment, for all the reasons given above, it is appropriate to grant both a declaration that the Council's decision to revoke the licence at Mission Grove was unlawful because taken without due regard to the PSED and to quash that unlawful decision with a view to reconsideration. This application for judicial review therefore succeeds.