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Leisure Centre closure declared unlawful

Campaigners have won their case against Caerphilly Council on the grounds that the decision to close Pontllanfraith Leisure Centre had not met the requirements of the Equality Act 2010.

This controversy has raged for several years. In 2017, the Council consulted on its closure but backed down following a public consultation. This time around it consulted upon a wide-ranging Sport and Active Recreation Strategy and having adopted the Strategy, it then decided to close the Leisure Centre which is just south of Blackwood. At the High Court, the claimant sought to show that these decisions should have been taken by the whole Council and not just by its Cabinet. That argument was rejected as was the contention that the decision fell within that category of highly strategic budget-related decisions that required consultation. In doing so, the Judge made some interesting remarks about the leading case on this important point – Nash v LB of Barnet. We will need to take account of these when we next deliver our Law of Consultation course!

Here, in Shane Williams v Caerphilly CC , the closure decision foundered – as in many other cases – on the failure of the Council to show it had given ‘due regard’ to the Public Sector Equality Duty (PSED) . The state of the law on this matter has been a little confused with contradictory judgments as to whether it matters if there has or has not been a satisfactory Equality Impact Assessment. In this case, the Judge is quite clear:-

“The issue is not whether a formal equality impact assessment was undertaken; the issue is a question of substance.” (par36)

The Council had prepared a ‘wholly inadequate’ assessment ahead of the 2017 decision, and then prepared another assessment for the decision on the Strategy. But it had not undertaken an exercise specifically for the closure of the Centre at Pontllanfraith. Based on the Judge’s comments and some case law, however, this would not necessarily have invalidated the decision, provided there was other evidence that the Cabinet had considered the impact on stakeholders. There wasn’t any.

For the purposes of the case, both sides agreed that the two relevant ‘protected categories’ were age and disability. The Cabinet had received an officers’ report about ‘alternative provision’ and the distance people might have to travel when the Centre was closed. But that was not enough. In the words of Mr Justice Swift: –

“The minutes refer 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 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 (PSED) 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 …” (Par 36)

This was sufficient to lose Caerphilly the case, and it is one of the most clear-cut cases that demonstrates the nature and extent of consideration that Councillors must give to contentious decisions to withdraw services or facilities that the public have enjoyed for some time. Those who prepare Equality Assessments (as they are now mostly called) should study the documents prepared in Caerphilly, and avoid relying on more general, often somewhat meaningless statements about impact.

The Caerphilly case has a simple but important message. If you want to close something, the impact has to be properly assessed, and considered.

 

This article is is written in response to the article that appeared on the  BBC News

About the Author

Rhion Jones is considered a leading authority on Public Engagement and Consultation. A founding Director of the Consultation Institute, he is co-author of “The Art of Consultation” (2009) and “The Politics of Consultation” (2018). He has delivered over 500 training courses and Masterclasses and is a prolific writer on the subject, having written over 350 different Topic papers and over 50 full Briefing Papers for the Institute. Since 2003 over 15,000 person-days of training based on courses he invented have been delivered. Rhion is in demand as an entertaining Keynote Speaker and Special Adviser, particularly on the Law of Consultation, and its implications for Government and other Public Bodies. In 2017, he was awarded the ‘Lifetime Achievement Award’.

Read more about Rhion

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