Charging policy at the Hampstead Ladies’ Pond is lawful

Cases

Today, the High Court (Cotter J) handed down judgment in a challenge to the charging policy at the Hampstead Ladies’ Pond (a very popular bathing pond on Hampstead Heath in North London). The case, R (Efthimiou) v The Mayor and Commonalty and Citizens of the City of London [2022] EWHC 1588 (Admin), was brought by a disabled swimmer who contended that the charging policy unlawfully discriminated against her.

The Court held that the charging policy (pursuant to which disabled swimmers are required to pay a concessionary day rate of £2.43, as opposed to the standard rate of £4.05, and could purchase an annual season ticket for £79.47, as opposed to the standard price of £125.62)) did not breach the duty to make reasonable adjustments for disabled persons, and was not indirectly discriminatory towards disabled persons. The Court also held that the charging policy did not breach Article 14 of the European Convention of Human Rights (“the Convention”), read with Article 8 and/or Article 1 of Protocol 1.

The thrust of the challenge was that disabled persons as a class were financially worse off than non-disabled persons, and that the charging policy (even with the concessionary rates) created significant barriers to their ability to swim at the Hampstead Ladies’ Pond.

The Court held that disabled persons did not suffer “disadvantage” (a prerequisite to the duty to make reasonable adjustments) as disabled persons. “Disadvantage” required there to be a justified sense of grievance. The Court held that disabled persons did not have a justified sense of grievance towards the charging policy by virtue of their disability. In any event, the reasonable adjustments duty had not been breached. In this context, the Court held that “as a general principle, charging for leisure facilities is fundamentally fair and reasonable”. On the facts, the charges were modest and compared favourably with charges at other similar facilities.

Similarly, with respect to the indirect discrimination argument, the Court held that the charging policy did not put people who share the claimant’s protected characteristic at a particular, or substantial, disadvantage when compared with those not sharing that characteristic. The Court held that “The root problem is a lack of disposable personal income, which is unconnected to the PCP and the disabled and non-disabled (who all receive a concession if on benefits) are equally affected.”

With respect to the Convention argument, the Court held that the claim did not fall within the ambit of Article 8 or A1P1, and so the alleged discrimination fell at the first hurdle.

Clive Sheldon QC, and Patrick Halliday represented The Mayor and Commonalty and Citizens of the City of London (instructed by Michael Cogher and Edward Wood at the Corporation of London).