Theresa Blake (1) Marlon Morrison (2) Christian Kitchen (3) v London Borough of Waltham Forest [2014] EWHC 1027 (Admin)

The claimants made an application for judicial review of a decision by Waltham Forest (“the Council”) terminating Christian Kitchen’s licence to operate a “soup kitchen” at a Council owned car park.  Christian Kitchen, the Third Claimant, was a registered charity, whose trustees organised the soup kitchen (used by the First and Second Claimants). It was staffed entirely by volunteers, preparing and serving hot meals and hot drinks to homeless vulnerable people for more than 25 years.

Although the Council no longer provided funding (and had not done so for many years) it had supported the soup kitchen by permitting Christian Kitchen to use the car park for more than 20 years.  Anti-social behaviour (including street drinking, violent and intimidating behaviour) had been associated with users of the soup kitchen and Walthamstow High Street was undergoing substantial physical regeneration works leading the Council to conclude that the licence at the car park should be revoked.

It was common ground that the Council was legally entitled to terminate the licence at the car park (subject of course to compliance with any public sector equality duty engaged by such a decision). It was also common ground that the Council’s decision to terminate the licence engaged 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.  Christian Kitchen rejected the alternative site offered on grounds of safety and accessibility.

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 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 the car park; 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 to proceed on the PSED ground alone.

The Claimants contended that the decision to revoke the licence meant that the soup kitchen would close because no suitable alternative site had 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.  The failure to do so was a failure to discharge the PSED and rendered the decision unlawful.

The Court held that the requirement imposed by the PSED was that the decision-maker should be clear precisely what the equality implications would be when they put 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.

In the instant case, whilst very high numbers of people were not directly affected by the impugned decision, there was 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 were, potentially, gravely affected by it.

That group had been 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 included elderly, disabled and other vulnerable people.

The Court held that what the Council had failed to do was 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”. The Council had 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. Rather than examining and assessing this impact, the Council instead, examined and assessed a hoped for and much less serious impact.

The Court held that even if the risk of closure was appreciated, that risk was not addressed in any of the impact assessments set out in the Equality Analysis, nor were mitigating steps addressed to this risk. Similarly, the mitigating measures proposed in each case were all to do with accessing the proposed new location for the soup kitchen; and there was no consideration of mitigation measures addressed at reducing or avoiding the impact of closure altogether.

The Court concluded that the PSED had not been complied with. 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. The Council had not properly appreciated, or if they 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.  Although an impact assessment was carried out, it did not provide the analysis and information necessary to discharge the duty to have focused due regard in the circumstances of this case.

For these reasons the Court found that it was appropriate to grant both a declaration that the Council’s decision to revoke the licence was unlawful because it was taken without due regard to the PSED and to quash the unlawful decision with a view to reconsideration.

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