By SJM
13/04/2014

Spoiling the Broth

Blake and others v LB Waltham Forest [2014] EWHC  1027 (Admin) is a judicial review challenge to the local authority’s decision to terminate a licence held by Christian Kitchen (the 3rd Claimant) to operate its soup kitchen out of the Mission Grove Car Park, Walthamstow, London, E17.

The soup kitchen has been providing hot meals and refreshments to local homeless people on a nightly basis for the past 25 years and it has occupied its current site for the last 20 years. The Council issued its decision to terminate the kitchen’s licence on 17/4/13 as part of its urban regeneration programme. There were also concerns that the site had become a magnet for alcoholism and anti-social behaviour.

By way of a compromise, the Council offered an alternative site (the Crooked Billet lay-by), which the kitchen refused on safety and accessibility grounds. The 1st Claimant, Ms Blake, was a long-standing user of the service and she complained that she would be unable to access the proposed new site given her mobility problems and her inability to afford the bus fare. She would also fear for her safety in a more remote and isolated part of town. It was established that the kitchen’s ‘clientele’ included a number of elderly and vulnerable people for whom the same considerations would apply.

It was accordingly the kitchen’s position that it would be forced to close if the only option were to relocate to the Crooked Billet lay-by.

A judicial review pre-action protocol letter followed, which included a complaint that the Council had not had regard to the public sector equality duty (PSED) under s.149 of the Equality Act 2010. The Council undertook an Equality Analysis, which identified the following measures to minimise the impact of a move on older and disabled service users: (i) signposting to the site (ii) details of bus routes with information about eligibility for freedom passes (iii) assistance with means of food preparation and (iv) publicity about other sources of homelessness and welfare support. Although it was accepted that relocation would disproportionately affect certain ethnic groups, there would be a net benefit to all users by the reduction in ASB in the kitchen’s present area.

Paragraph 54 of Simler J’s judgement contains a useful 10 point checklist of the relevant principles underpinning s.149 and the PSED. The relevant point here is at “(g) In considering the impact, the authority must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated.”

The problem with the Council’s Analysis is that it failed to grapple with the kitchen’s unambiguous statement that the service would have to close following termination of the licence. The impact assessment was premised on a move to an alternative site that was never likely to occur and it was therefore fundamentally flawed. There was no consideration of the impact on service users by the gap created by the closure of the kitchen and what measures might be available to fill that gap.

Nevertheless, the Judge considered that even if the new site was adopted, the measures proposed to minimise the disadvantages to those in Ms Blake’s position fell short of the ‘conscious and open-minded consideration’ required by the PSED (paras 71-72).

The Court therefore declared that the notice to terminate was unlawful and quashed that notice with a view to its reconsideration.

 

 

 

 

SJM is partner and head of the housing and public law department at Miles and Partners LLP, based in London E1.

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