On 28 June 2021, in R (On the application of Sheakh) v London Borough of Lambeth  EWHC 1745 (Admin) the High Court in England dismissed a challenge brought by Miss Sheakh, a disabled resident, to the validity of experimental traffic orders made by the London Borough of Lambeth (the Council).
The Low Traffic Neighbourhoods (LTNs) made by the Council gained momentum as a result of the guidance released in response to the Covid-19 pandemic with the objective being the promotion of walking and cycling rather than using private modes of transport.
Miss Sheakh was heavily reliant on car transport as a result of her disability, and therefore argued that she had suffered disproportionately as a result of the implementation of the LTNs.
The focus of Mr Justice Kerr's judgment was whether the Council had fulfilled the public sector equality duty (the "PSED").
Under section 149 of the Equality Act 2010 public sector bodies – including local authorities – must have due regard to the need to eliminate discrimination, advance equality of opportunity for disabled persons and to foster good relations between disabled and non-disabled persons. This involves having due regard to the need to remove or minimise disadvantages suffered by disabled persons, to take steps to meet their needs and to encourage them to participate in public life.
It was argued on behalf of Miss Sheakh that the Council had breached the PSED and as a consequence the court should quash the orders making the LTNs .
Kerr J held that in the particular circumstances of this case, the PSED duty had been met for the following reasons:
There was enough consideration given by the Council to equality objectives to qualify as "due regard" to those objectives. There is nothing in section 149 of the Equality Act 2010 which prevents, in an appropriate case, performance of the duty by means of a conscious decision to undertake equality assessment on a "rolling" basis.
The "rolling basis" approach was also acceptable because of the unusual facts here being: the urgent nature of the guidance encouraging the implementation of the schemes in the context of the Covid-19 pandemic; the much-reduced use of public transport and the need to restrain vehicle traffic.
The court did, however, issue a warning about the "rolling basis" approach, explaining that it would not be acceptable in all cases where the function being exercised is to initiate an experiment and Councils' use of it was 'at their peril'. Kerr J emphasised that the more "evolutionary" the function being exercised, the more readily a rolling assessment approach may be justified.
What this means for Councils
Although the court found in favour of the Council in this case, local authorities should remain vigilant when carrying out their assessment duties under the Equality Act 2010.
In particular, Scottish public authorities should be aware of the additional and more stringent duties applicable to them by virtue of the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 and its subsequent amendments. In particular, regulation 5 sets out the obligations which fall upon Scottish public authorities in terms of the practical exercise of the PSED.
If a local authority is in any doubt as to its fulfilment of its duties under the Equality Act 2010 and associated regulations, Brodies is well placed to advise. Should you wish to discuss, please do not hesitate to contact Jackie McGuire or Johanna Boyd.