Indirect Age and Disability Discrimination in Planning Policy: Smith v Secretary of State for Levelling Up

Introduction

The case of Smith v Secretary of State for Levelling Up, Housing & Communities & Anor ([2022] EWCA Civ 1391) addresses significant issues surrounding indirect discrimination within the realm of planning policies in the United Kingdom. The appellant, Lisa Smith, challenged the decision to exclude permanently settled Gypsies and Travellers from the definition outlined in the 2015 "Planning Policy for Traveller Sites" (PPTS 2015). This exclusion specifically disadvantaged elderly and disabled individuals who had ceased their nomadic lifestyle due to factors such as age or disability.

Central to the case were four grounds of appeal:

Ground 1: Incorrect application of the legal test and reversal of the burden of proof.
Ground 2: Erroneous conclusion regarding race discrimination.
Grounds 3 & 4: Flawed reasoning on the legitimate aim and proportionality of the exclusion.

The Court of Appeal scrutinized these grounds, evaluating the interplay between equality legislation, human rights considerations, and planning policy.

Summary of the Judgment

The Court of Appeal concluded that the lower court had erred in its assessment of the legal framework governing indirect discrimination. Specifically, the exclusion in PPTS 2015 was deemed to indirectly discriminate against elderly and disabled Gypsies and Travellers without sufficient justification. The court found that the Secretary of State failed to demonstrate that the exclusion served a legitimate aim in a proportionate manner.

Consequently, the appeal was allowed, the inspector's decision was quashed, and the case was remitted to the Secretary of State for redetermination.

Analysis

Precedents Cited

The judgment heavily referenced established legal precedents to frame its analysis:

Bank Mellat v HM Treasury (No 2) - Provided a four-stage test for assessing proportionality in discrimination cases.
Christian Institute v Lord Advocate and JCWI Case - Discussed the high threshold for challenging legislation based on proportionality.
Wrexham County Borough Council v National Assembly of Wales - Addressed the definition of "nomadic habit of life" in planning law.
R (The Motherhood Plan) v Her Majesty's Treasury and others - Explored the flexible approach to proportionality and justification in discrimination cases.

These cases collectively underscored the necessity for a balanced and evidence-based approach when assessing claims of indirect discrimination, especially concerning vulnerable groups.

Legal Reasoning

The court delved into the intricacies of indirect discrimination as defined under the Equality Act 2010, particularly focusing on Section 19, which outlines the criteria for such discrimination. The key elements examined were:

Whether the policy applied to a protected characteristic (age, race, disability).
Whether it placed individuals with these characteristics at a disadvantage.
Whether the policy could be justified as a proportionate means of achieving a legitimate aim.

The court found that while the Secretary of State conceded that the exclusion was discriminatory, he failed to justify it adequately. The policy intended to create fairness by distinguishing between nomadic and settled Gypsies and Travellers was not supported by sufficient evidence demonstrating its necessity or proportionality.

Moreover, the court criticized the lower judge for misapplying the burden of proof, erroneously placing a "high hurdle" on Ms Smith rather than requiring the Secretary of State to justify the discrimination.

Impact

This judgment sets a crucial precedent in the intersection of equality law and planning policy. It emphasizes that:

Policies inadvertently perpetuating discrimination, especially against vulnerable groups, must be robustly justified.
Government policies must align with human rights obligations, ensuring that exclusions do not disproportionately disadvantage protected groups without valid reasoning.
Future planning policies will require meticulous scrutiny to prevent indirect discrimination, ensuring inclusivity and fairness for all communities.

The decision reinforces the role of the judiciary in upholding equality principles, ensuring that government policies do not undermine the rights and dignities of marginalized populations.

Complex Concepts Simplified

Indirect Discrimination: This occurs when a policy applies to everyone but disadvantages a particular group based on protected characteristics like age, race, or disability. It's not overt discrimination but has unequal effects.

Proportionality: A legal principle requiring that any limitation on rights must be appropriate and necessary to achieve a legitimate aim. The means used must be proportionate to the intended objective.

Legitimate Aim: The objective a policy seeks to achieve must be lawful and justifiable, such as promoting fairness or public safety. In discrimination cases, the aim must outweigh the negative impact on the affected group.

Burden of Proof: In discrimination cases, especially with admitted discrimination, the responsibility lies with the defendant (e.g., the Secretary of State) to prove that the discriminatory practice is justified.

Planning Policy for Traveller Sites (PPTS): A government guideline outlining how and where Traveller sites can be established, including definitions and criteria for what constitutes a Traveller.

Conclusion

The Court of Appeal's decision in Smith v Secretary of State for Levelling Up, Housing & Communities underscores the judiciary's commitment to preventing indirect discrimination within government policies. By invalidating the exclusion of permanently settled Gypsies and Travellers from PPTS 2015, the court highlighted the necessity for policies to be both fair in intention and justifiable in practice. This ruling not only benefits the appellant but also serves as a safeguard for other marginalized groups, ensuring that planning policies evolve to be inclusive and equitable.

Moving forward, policymakers must ensure that definitions and criteria within planning frameworks do not inadvertently exclude or disadvantage vulnerable populations. Comprehensive evidence and transparent justifications will be paramount in crafting policies that uphold equality and respect for all communities.