Public bodies who discriminate – County Court or High Court process?


By Sally Cowen

Hamnett v Essex County Council [2017] EWCA Civ 6


Judgment given 18th January 2017

Sally Cowen considers this interesting case concerns the apparent conflict between competing provisions of the Equality Act 2010 in the context of duties to disabled people within the context of Traffic Regulations Orders.

The essence of this CA judgment is about ensuring that every statutory right has a proper arena in which it can be tested and upheld. As happens so often, the human factor of the case is lost far down the line. In fact, by the time the matter came before the CA, the temporary measure would have expired and the court found this too was a reason not to hear the claim.

Colchester Council put in temporary traffic measures to try to prevent congestion and air pollution in the town centre. A very noble intent, until it transpired that this meant that the disabled parking availability in the town centre would be severely depleted. Less noble.

An application was therefore made by the Claimant, a disabled person, and chair of a local representative group, to stop this temporary measure (which was only ever going to last 18 months). The High Court (Singh J) held that the HC had no jurisdiction to hear the discrimination claim.

The application had been made under paras. 34-36 of Schedule 9 to the Road Traffic Regulation Act 1984 (“the RTRA 1984”). The claims were that the Council had discriminated against disabled people, had failed to make reasonable adjustments for them and had failed in their public sector equality duty to disabled people, contrary to s29 and s.149 Equality Act 2010 (“EqAct 2010”). The claimants also claimed that the making of the orders was irrational and ultra vires.

The question before the HC and subsequently before the CA was; could a claim for reasonable adjustments be brought as a statutory review under the RTRA 1984 – as this would dictate whether the discrimination matter could be heard in the HC or whether it had to be heard in the CC. The HC had dismissed the irrationality/ultra vires challenge as well as the claim that the decision was in breach of the s.149 duty.

Schedule 9 of the RTRA 1984 states that a challenge to an order must be made within 6 weeks of its being made to the High Court. This is consistent with s.149 Equality Act 2010, which can also be brought before the HC.

However, the Schedule also states that, that once made, an order cannot be questioned in any legal proceedings whatever. This causes specific problems when one considers claims under s.29 EqAct 2010, which should be brought in the County Court in accordance with s113(1) and s.114 EqAct 2010 (unless a judicial review).

Singh J turned the claims away – saying that there was no jurisdiction to hear them in the High Court in the context of a statutory review. This left, as was argued by the Appellant, a lacuna for Claimants wishing to bring discrimination claims and not simply wishing to argue that there had been a breach of s.149 in the making of the order, given the language of Schedule 9 of the RTRA.

The CA (Gross LJ) who heard the appeal afresh, held that an individual, who had a right under section 29 of the 2010 Act, had to have a forum in which to pursue a remedy for alleged contravention of that right. That was so as a matter of statutory construction. On the face of it an alleged contravention of section 29 of the 2010 Act had to be pursued by way of statutory review in the High Court if the 1984 Act prevailed. Yet the same contravention had to be pursued in the County Court, if Part 9 of the 2010 Act prevailed. The answer to the conundrum lay in the well-known common law doctrine of implied repeal: where the provisions of two statutes could not stand together, the later provisions prevailed and the earlier provisions were treated as repealed by implication or amended to the extent necessary to remove the inconsistency. It had to be underlined that the court would not lightly invoke the doctrine.

The result in this case was that the provisions of the EqAct 2010 would therefore prevail and the s.29 claim therefore should have been brought only in the County Court. Gross LJ indicated that there would be limited circumstances where claims under s.29 and s.149 would occur at the same time. In reality, however, this may be more frequent than first considered. Any local authority who imposes a policy which is discriminatory could find themselves with a claim for judicial review and a s.29 claim in the county court for damages.

The CA also addressed the issue of whether it should be allowed to hear this appeal at all, due to the fact that the temporary measure had expired and that the appeal was therefore a ‘moot’ point. This presents a practical problem, and one that may happen more often, since the time taken to work through the appeal process renders the appeal effectively pointless. The CA noted that where the practical implication had been removed, the Court can still hear an academic appeal in limited circumstances, but the discretion remains narrow, even where the appeal concerns a matter of public duty. More so, where the only remaining issue is cost.

The CA concluded that this was not a matter which should be allowed to proceed, having removed the practical impact of any decision and there being no other cases which would be dependent on the outcome of this case. This continues the CA’s relatively hard line on hearing cases beyond their practical limit. However, the Court appeared to remain open to the idea of considering circumstances afresh where there are other cases waiting in the wings.

In the meantime, this decision could be seen as a green light to highway authorities and other public bodies to ignore the duty to make reasonable adjustments for disabled road users. By the time interested parties have gone through the court processes, the practical implications may well have disappeared. However, in view of the outcome of the decision i.e. that implied repeal permits claimants to bring litigation in the county court, those in similar positions may issue claims for breach of section 29 in the county court (whilst pursuing, if appropriate, a statutory review on the basis of s.149 and/or any other relevant grounds) and claim damages even if the statutory review may no longer be appropriate. The decision has, in fact, made it easier for claimants to challenge such decisions as they now have two forums in which to bring proceedings.

Cloisters’ Catherine Casserley was Counsel for the Appellant.