Disabled swimmer Christina Efthimiou has voiced her disappointment at a High Court judgment which found that the charging regime at Hampstead Ponds did not discriminate against her and that, even if it did, the discrimination could be justified.
Christina had applied for judicial review of City of London charges for using the ladies’ pond at Hampstead Heath.
Christina aged 60, of Camden, claimed the City of London has failed in its duty to make reasonable adjustments so that she has equal access to swimming at the Ponds. She also claimed that the charging policy at the pond is indirectly discriminatory towards her as a disabled person.
She brought her claim under Sections 20 and 21 of the Equality Act, 2010, which expects reasonable adjustments to be made to cater for the special needs of disabled people, which necessarily entails an element of more favourable treatment, and Article 14 read with Article 8 and/or Article 1 of the First Protocol of the European Convention on Human Rights.
Christina, who has rheumatoid arthritis, chronic obstructive pulmonary disease, and depression says regular access to the ponds has become an essential part of managing her disability and the ponds have become something she relies on mentally, emotionally and physically.
Represented by law firm Leigh Day, Christina says the City of London is obliged to provide access to the Ladies’ Pond, the only outdoor single sex natural bathing pond for women in Europe to everyone, which includes making reasonable adjustments to ensure equal access to those with physical and mental disabilities.
The Heath’s 2018-2020 Management Strategy included targets to “increase social inclusion” and “increase diversity and equality”, saying: “We will focus on creating accessible environments for more diverse visitors by removing barriers that may exist for different groups who experience more exclusion or disadvantage than others.”
However, a new charging structure was introduced in 2020 and prices were raised in 2021. Concessionary rates apply to under 16s, students, over 60s, those on various benefits and those who have a disabled card. Those under 16 and over 60 are eligible for free morning swims from 7am until 9.30am regardless of their means. Carers can accompany a swimmer for free. But there is no free-swimming session for disabled people.
The Kenwood Ladies Ponds Association (KLPA), who supported Christina’s claim, conducted a survey of 600 respondents, which showed that 46% of non-disabled swimmers said the charges had affected their ability to afford swimming, when compared to 63% of disabled respondents, and 93% of disabled respondents on benefits. The City of London confirmed that it did not retain data on the types of concession tickets purchased, and therefore was not monitoring how many disabled people are buying tickets.
Christina’s grounds for judicial review were:
- The Defendant failed to make reasonable adjustments to its charging policy contrary to ss.20 and 21 of the EA 2010;
- The charging policy is indirectly discriminatory contrary to s.19 EA 2010.
- The charging policy discriminates against disabled people contrary to Article 14 ECHR.
However in a judgment handed down today the High Court dismissed Christina’s claim for judicial review on the basis that disabled people were not disadvantaged by the charging policy, that the Claimant’s proposals for various adjustments to the charging regime for disabled people, including lower concessions or a direct debit system to spread the cost of a season ticket, were not ‘reasonable’ and that, even if there was discrimination, that the policy could be justified predominantly by reference to the City’s finances.
The Judge did not accept the Claimant’s evidence that disabled people, who have lower incomes and face extra costs of being disabled, are disadvantaged by the charges compared with swimmers who are not disabled. He also did not accept the evidence from the Claimant, other disabled swimmers, Mind and various medical professionals, that disabled people derive particular physical and mental health benefits from cold water swimming over and above non-disabled people.
The judge was also concerned that a finding of discrimination in this case would mean that the City would need to offer lower concessions to disabled people across a range of its other services against a backdrop where the City is facing significant financial pressures.
Christina Efthimiou said:
“The judgment is very disappointing for me and other disabled swimmers who cannot afford the charges for swimming at the Ponds. We tried very hard to explain the disadvantages that disabled people, who have low incomes and face extra disability related costs, face in accessing the Ponds, but the Court did not see it our way.
“I will continue to do everything I can to carry on swimming at the Ponds which remain a sanctuary and safe haven for me and other women.”
Mary Powell of KLPA said:
“This is of course disappointing news but we are pleased to have been able to support Christina in this case, which was very important to bring. We will also continue to campaign through other channels for the return of inclusivity at the bathing ponds, which had provided a safe and healing space for so many people in the past regardless of their income.”
Leigh Day solicitor Kate Egerton said:
“We believe the Judge mischaracterised Christina’s case as being about impecuniosity as opposed to disability, and did not give relevant weight to the significant volume of evidence that was provided to the Court about the extra costs disabled people face, and the unique benefits disabled people derive from cold-water swimming.
“The judge also said that charging disabled people to access the Ponds at a level they could afford would give them preferential treatment over others on low income. However, the duty to make reasonable adjustments in the Equality Act 2010 specifically provides disabled people with additional protections.
“Finally, the Judge made a point about the charging policy being part of an overall financial structure which covers the provision of a wide range of services both on and off the Heath. He was obviously concerned that Christina’s arguments, if correct, would apply to all the Defendant’s services despite our arguments about the uniqueness of cold-water swimming at the Ponds.”