AC-2024-CDF-000188 - [2025] EWHC 2196 (Admin)

I now turn to the relevant principles relating to discrimination on the grounds of disability. As Mr Purchase KC submits, there are different forms of discrimination, each with their own legal requirements and it may not matter which applies. The key question is often whether different treatment or differential impacts on disabled people have been shown by the defendant to be a proportionate means of achieving a legitimate aim. That is illustrated by section 15(1) of the Equality Act 2010, which provides:

“(1)

A person (A) discriminates against a disabled person (B) if—

(a)

A treats B unfavourably because of something arising in consequence of B's disability, and

(b)

A cannot show that the treatment is a proportionate means of achieving a legitimate aim.”

Section 20 sets out three requirements in relation to disabled people, one of which states:

“(3)

The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”

Section 149 sets out the well-known public sector equality duty (PSED), and disability is one of the protected characteristics:

“(1)

A public authority must, in the exercise of its functions, have due regard to the need to—”

(a)

eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b)

advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c)

foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

(2)

A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).

(3)

Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

(a)

remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

(b)

take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;

(c)

encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

(4)

The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.

(5)

Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

(a)

tackle prejudice, and

(b)

promote understanding.

(6)

Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.”

Article 14 of the European Convention of Human Rights (ECHR) provides:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

One such right is set out in article 2 of the first protocol to the ECHR:

“No person shall be denied a right to an education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching is in conformity with their own religious and philosophical convictions.”

There are many authorities dealing with these provisions. There was little disagreement before me about their application to the facts of the present proceedings, so I need refer to only a few of the authorities cited.

Starting with section 15 of the 2010 Act, the threshold of disadvantage to trigger the requirement to justify under the section is relatively low, see Williams v Trustees of Swansea University Pension and Assurance Scheme [2018] UKSC 65, [2018] 1 WLR 93. Lord Carnwath at [27] also observed that little is likely to be gained by narrow distinctions between the word "unfavourably" in section 15 and words such as "disadvantage" or "detriment" in other provisions, nor between an objective and a "subjective/objective" approach.

When determining whether justification is shown, appropriate respect must be accorded to the Welsh Government as the primary decision maker, see R (Tigere) v. Secretary of State for Business [2015] UKSC 65, [2015] 1 WLR 3820 [32]. In the following paragraph, Lady Hale set out the tests for determining justification:

“33.

With those considerations in mind, I turn to the issue of justification. It is now well-established in a series of cases at this level, beginning with Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167 , and continuing with R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre intervening) [2011] UKSC 45, [2012] 1 AC 621 , and Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, [2014] AC 700 , that the test for justification is fourfold: (i) does the measure have an legitimate aim sufficient to justify the limitation of a fundamental right; (ii) is the measure rationally connected to that aim; (iii) could a less intrusive measure have been used; and (iv) bearing in mind the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim, has a fair balance been struck between the rights of the individual and the interests of the community?”

I turn now to the principles in relation to the PSED. Mr Friel submits that this is more relevant to the formulation of policy, but Mr Purchase KC submits that it also applies to individual decisions. He relies on Pieretti v. Enfield LBC [2011] EWCA Civ 1104, [2011] 2 All ER 642. At [26] Wilson LJ, giving the lead judgment of the Court of Appeal dealt with the predecessor of section 149 of the 2010 Act, namely section 49 of the Disability Discrimination Act 1995. At [27] he said this:

“The duty in s.49A applies both when the local authority is drawing up its criteria and when it applies them in an individual case, both of those being an aspect of carrying out its functions”: per Black J in R (JL) v. Islington LBC [2009] EWHC 458 (Admin), [2009] 2 FLR 515 , at [114]. There is no scope for depriving the word “functions” of much of its normal meaning. There would, for example, be no need for s.49C(3)(a) of the Act of 1995 to exclude the application of s.49A(1)(d) from acts done in connection with recruitment to the armed forces if the section did not apply in principle to individual decisions. Of course public bodies must factor their duty under s.49A(1) into the planning of their services; and it may well be that the section does not create new individual rights. The part of it with which we are concerned is designed to secure the brighter illumination of a person's disability so that, to the extent that it bears upon his rights under other laws, it attracts a full appraisal.”

In my judgment the functions which the Welsh Government carried out which are challenged in the present proceedings are functions to which the PSED applies.

There was little if any dispute about the other relevant principles, which were summarised by McCombe LJ in R (Bracking) v Secretary of State for Work and Pensions[2013] EWCA Civ 1345 [25]. This was one of the many authorities referred to by the Supreme Court in Hotak v Southwark London Borough Council [2015] UKSC 30 at [73]. That summary, for present purposes, may be further distilled as follows:

a.

Equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation.

b.

An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements.

c.

The relevant duty is upon the decision maker personally who cannot be taken to know what officials know or what may have been in the minds of officials in proffering their advice.

d.

The decision maker must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a rearguard action.

e.

The duty must be exercised in substance, with rigour, and with an open mind. It is not a question of ticking boxes; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument.

f.

General regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria.

h.

It is not for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then it is for the decision maker to decide how much weight should be given to the various factors informing the decision.

The PSED requires a highly fact sensitive inquiry ( R (Hough) v SSHD [2022] EWHC 1635 (Admin), [106]) and a rigorous consideration which requires the decision maker to have a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them ( R (Hurley & Moore) v SSBIS [2012] EWHC 201 (Admin) [77]).

Steyn J in R (Devonhurst Investments Ltd) v Luton BC [2023] EWHC 978 (Admin) held that the PSED implies a duty of reasonable enquiry with a view to understanding the potential impact of a proposed decision on people with the protected characteristics. She accepted at [55] that the nature of the function being exercised, and the context, may have an important impact on what is required to fulfil the duty of enquiry. How the duty is complied with is subject to challenge only on Wednesbury grounds.

Mr Purchase KC also relies on the principle that discrimination arises where public authorities without an objective and reasonable justification fail to treat differently persons whose situations are significantly different: see Thlimmenos v Greece (2000) 31 EHRR 15 [44].