High Court rejects disabled swimmer’s application for judicial review over Hampstead pond pricing scheme

A disabled person’s application for judicial review of the City of London Corporation’s pricing policy for a bathing pond was dismissed by a High Court judge who said the claimant’s argument ‘breaches the principle of ‘ensure socio-economic equality’.

In Efthimiou, R (at request of) v City of London [2022] EWHC 1588 (Admin) (June 23, 2022), Justice Cotter dismissed all three grounds advanced by the plaintiff, including one ground alleging breaches of the Equality Act 2010.

The City of London, which operates Hampstead Heath’s three bathing ponds, introduced entry fees for swimmers in 2005. Currently it costs £4.05 for a day ticket or £132.80 for a 12 month ticket.

A reduced rate ticket is offered to social recipients, students, over 60s, under 16s and people with disabilities. Concession tickets cost £2.43 for a day ticket or £79.70 for an annual ticket.

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The claimant said that following an updated fare policy, effective April 1, 2021, she could no longer afford the ticket without the help of friends or family, and argues that the cost of the 12-month discounted subscription was not affordable for people with disabilities who rely on one-time benefits. She added that single ticket prices were also prohibitive for low-income people.

The claimant submitted the following grounds to the High Court:

  1. the City of London failed to make reasonable adjustments to its charging policy contrary to sections 20 and 21 of the Equality Act 2010;
  2. the charging policy is indirectly discriminatory, contrary to section 19 of the Equality Act 2010.
  3. the pricing policy discriminates against people with disabilities contrary to Article 14 ECHR taken together with Article 8 and/or Article 1 of Protocol 1 (“A1P1”).

The applicant stated that her own financial difficulties, which are directly related to her disability, impacted her ability to access the ponds and argued that the pricing policy affected her more significantly than it would if she was not disabled.

His lawyers presented testimony from others in a similar situation who were also unable to swim – or faced significant barriers to doing so – due to the financial consequences of their disability.

To remedy this, the claimant proposed a reduction in preferential rates or full concessions for people with disabilities, an installment payment program or the provision of a contingency or support fund (this argument fell during the submissions) .

In response, the City of London argued that heavily subsidized prize money, including a 40% discount for disabled swimmers, “cannot in any way give rise to unlawful disability discrimination”.

She argued that no court decision has ever found that ‘service providers’ are required by the Equality Act 2010 to provide goods and services at a reduced price to people with disabilities, ‘and again unless a pricing system which offers a substantial discount to persons with disabilities gives rise to unlawful discrimination on the basis of disability”.

“The relevant statutory code of practice of the Equality and Human Rights Commission (“EHRC”) also contains no such suggestion. On the contrary, the EHRC guidelines state that service providers : “can [disabled service users] the same thing they charge others,” the authority added.

They argued that the pricing policy was “clearly” justified as it is a proportionate means of achieving a legitimate aim (section 19 of the 2010 Act). Since the charges are clearly justified, they do not give rise to indirect discrimination, the City of London argued.

The defendant added that if the plaintiff’s argument – that people with disabilities have less money and that charging them to access a service, therefore, gives rise to unlawful discrimination – were correct, it would mean that “a wide range of service providers would be needed to provide free goods, services and facilities to people with disabilities”.

The judge dismissed the plaintiff’s case on all three grounds.

On ground 1 he said: “The plaintiff’s argument violates the principle of socio-economic equality and affords persons with disabilities and grants persons with disabilities (many of whom will not be low income) preferential treatment over all others with low incomes.

“In my judgment, the Court must be careful not to allow the 2010 Act to be used to achieve the direct opposite of what it was enacted to do,” he added.

He also concluded that the fee structure does not place a person with a disability at a substantial disadvantage compared to non-disabled persons.

For ground 2, the judge did not accept that the flat fee for all places persons who share the protected characteristic of the particular user of the service at a particular (or substantial) disadvantage compared to persons who do not do not have this feature.

“The fundamental problem is the lack of disposable personal income […] and the disabled and non-disabled (all of whom receive a reduction if they receive benefits) are equally affected,” he noted.

The judge rejected Ground 3, noting that it “[saw] no realistic argument that [article 8] applies to the claimant on the present facts”.

Adam Carey