Judge finds Welsh council failed to meet public sector equality duty when deciding to close leisure centre

A local authority in Wales failed to meet its obligations in relation to the public sector equality duty when deciding to close a leisure centre, a High Court judge has ruled.

However, Mr Justice Swift dismissed three grounds of challenge to a decision of the Cabinet at Caerphilly County Borough Council on 14 November 2018 to adopt a Sport and Active Recreation Strategy for 2019 – 2029, and a further ground of challenge to its decision taken on 10 April 2019 to close the centre concerned, Pontllanfraith Leisure Centre, with effect from 30 June 2019.

The claimant, Shane Williams, in Williams, R (on the application of) v Caerphilly County Borough Council [2019] EWHC 1618 (Admin) had advanced the following grounds of challenge (the first three relating to the strategy decision; and the fourth and fifth to the closure decision):

1. The strategy decision was unlawful because it was a decision taken by the Cabinet when, by reason of the provisions of the Local Authorities (Executive Arrangements) (Functions and Responsibilities) (Wales) Regulations 2007 it was a decision that should have been taken by the full Council.
2. The strategy decision was unlawful because it was taken without information as to the cost of implementing the sports strategy.
3. The strategy decision was unlawful by reason of failures to comply with obligations under the Local Government (Wales) Measure 2009 – under which a Welsh improvement authority must make arrangements to secure continuous improvement in the exercise of its functions.
4. When taking the closure decision the council did not meet its obligations under section 149(1) of the Equality Act 2010 – the public sector equality duty.
5. The closure decision was unlawful because the council failed to consider the option of a community asset transfer of the leisure centre.

Mr Justice Swift found in relation to ground 1 that the strategy decision was not, by reason of paragraph 2 of Schedule 4 to the 2007 Regulations, a decision required to be taken by the Council in full session. “It was a decision that the Cabinet had authority to make.”

On ground 2, the judge said: “Once the nature and substance of the Sports Strategy…. is taken into account, it was not Wednesbury unlawful for the Council to adopt the Sports Strategy without information about the likely cost that its implementation might entail.

“Given that the Strategy Decision did not commit the Council to any specific programme of work, it was open to the Council, to proceed on the basis that information about the cost of implementation was not a material consideration at that stage, and that such financial considerations would be addressed step by step as implementing plans came forward. This ran a political risk if implementation turned out not to be possible; but that is not a matter going to the legality of the decision.”

On ground 3, Mr Justice Swift said the strategy decision was not in the nature of an arrangement to secure continuous improvement in the exercise of functions.

“It was a strategy for the steps the Council wanted to take in respect of its provision of recreational facilities. It would be wrong to construe section 2 of the 2009 Measure as applying to any/every strategic decision. That would be an artificial application of section 2 of the 2009 Measure. It would also have the unwarranted consequence of creating – via section 5 of the 2009 Measure – a statutory obligation to consult in respect of any proposed strategic decision,” he said.

The judge added: “While it may be a matter of good practice that strategic decisions should be the subject of consultation, applying the section 5 obligation to all such decisions would be a step too far, absent an express statutory provision to that effect.”

He therefore concluded that the proposal to adopt the sports strategy was not an arrangement falling within the scope of section 2(1) of the 2009 Measure; “in consequence the section 5(1) obligation to consult did not arise.”

On ground five, Mr Justice Swift also did not consider that the claimant's case was made out. “The fact that the possibility of community asset transfer of the Pontllanfraith Leisure Centre was raised in the consultation response from Blackwood Town Council did not oblige the Council to take that possibility further. The fact that the Council did not take it further does not make good a contention that there was a failure properly to consider the responses to consultation.”

The judge said that a statement recorded as being made by officers at the 10 April 2019 Cabinet meeting that the responses to consultation had not made mention of community asset transfer was wrong.

“That was unfortunate, but not in my view material,” he found. “This part of the Blackwood Town Council response fell well short of anything that could reasonably be understood as an expression of interest in a community asset transfer. Regardless of the officers' comment, Cabinet members were on notice of the community asset transfer option from what had been said at the Scrutiny Committee meeting. The fact that the Council did not pursue the possibility of community asset transfer did not render the Closure Decision unlawful by reason of failure to have regard to a relevant consideration.”

The failure to consider community asset transfer was not unreasonable, the judge said.

On ground four and the public sector equality duty, Caerphilly’s Leader, Cllr David Poole had said in a witness statement:

(a) that the decision not to undertake further formal assessment of the likely impact of the closure decision was a conscious decision following advice that the assessment undertaken for the purposes of the strategy decision was sufficient;

(b) that at the meeting on 10 April 2019, the Cabinet considered how the information in the assessment prepared in relation to the Strategy Decision related to the proposal to close Pontllanfraith Leisure Centre; and

(c) that when considering the information in the Officer's Report for the 10 April 2019 meeting the Cabinet considered the impact of closure on persons with protected characteristics.

However, Mr Justice Swift said: “My conclusion is that when taking the decision to close the Pontllanfraith Leisure Centre the Council did not comply with the requirements of section 149(1) of the 2010 Act. The issue is not whether a formal equality impact assessment was undertaken; the issue is the question of substance – was there proper and conscious consideration of the public sector equality duty criteria.

“This cannot be made out from the evidence of the assessment made in 2017. In his statement, Councillor Poole accepts that that assessment was "wholly inadequate". Nor can evidence of compliance with the public sector equality duty be made out from the assessment undertaken for the purposes of the Strategy Decision. That decision was directed to materially different matters. The fact that the Closure Decision was a step consistent with the Strategy Decision does not come close to making good the Council's argument in this case.”

The judge said the strategy decision was a decision on generic matters. “It did not, and did not purport to engage with the possible consequences of the closure of Pontllanfraith Leisure Centre.”

Mr Justice Swift added that he did not consider that the information contained in the Officers' Report was sufficient evidence of the required due regard.

He said he had paid particular attention to paragraphs in the report focusing on the availability of alternative provision and the distance between that provision and the Pontllanfraith Leisure Centre. These did not, however, address the significance of those new travelling distances on older or disabled persons.

The paragraphs were “not evidence of the required conscious and careful consideration of the public sector equality duty criteria. The position does not alter if the material part of the Officer's Report is read together with the minutes of the Cabinet meeting.”

Those minutes referred only to the impact of closure on "users" of the leisure centre. “That was, of course, a relevant consideration. But it is not the same as the focussed consideration required by the section 149(1) criteria as to the likely effect of the proposed closure on the elderly and the disabled. Given the admitted inadequacy of the attempt to comply with the public sector equality duty at the time of the proposed closure in 2017, it is striking that in 2019, the position of elderly and disabled persons was not addressed in terms. Overall, I am not satisfied on the evidence, that the Council discharged its section 149(1) due regard obligation.”

Nor did the judge accept the council's no difference submission. “The present case is not one where that no difference submission is supported by an after the event assessment….. I do not consider there is any secure basis on which I could reach a no difference conclusion. The public sector equality duty is directed to the decision-making process. The premise of the duty is that process is important because it is capable of affecting substantive outcomes. In the present case there is nothing that gives me sufficient confidence that compliance with the public sector equality duty would be without purpose.”

Caerphilly said it would take steps to rectify the issue and prepare a separate Equalities Impact Assessment on the closure on Pontllanfraith Leisure Centre before any further decision was taken by Cabinet.

Cllr Poole said, “We note the decision of the High Court and the Judgment that the decision to adopt the CCBC Sport and Active Recreation Strategy is sound and robust. We also note the Judge’s ruling in relation to Cabinet’s approach to compliance with its Equality Duty, and we will take steps to ensure that the correct procedures are followed in relation to future decisions by Cabinet where there are equalities implications.”