Swim charge protesters at the High Court in February

A HIGH Court judge has thrown out a bid by swim groups to force the City of London to rethink imposing compulsory charges to take a dip on Hampstead Heath.

Disabled swimmer Christina Efthimiou, supported by the Kenwood Ladies Pond Association, had been given the chance to argue in front of Lord Justice Cotter that the City’s decision two years ago to force swimmers to pay to enter the Heath’s waters discriminated against vulnerable groups.

Ms Efthimiou, 60, a former children’s worker, argued at a hearing in February  that the City had failed to monitor the effect new charges would have on low income swimmers, and ending over 100 years of free swimming was discrimination.

In 2005, a High Court judge had ruled the City did not have the right to charge, because it was tantamount to enclosing the ponds – something, as guardians of common land, it had no legal right to do.

But in 2018, a new parliamentary Bill – which was made law with no opposition – undid this defence at stroke, as the City said the Hampstead Heath Act of 1871 needed updating to allow them to be more flexible in raising funds to manage the Heath.

The City subsidise the up keep of the three bathing ponds via donations to the Heath’s charity. Income from the ponds is below the cost of lifeguards and up keep – and the City argued that because of increasing use and falling budgets, they had to act.

Ms Efthimiou told the New Journal that a regular dip in the ponds was vital to her well being – and that she and scores of others were being denied a low cost health benefit that would not only improve the quality of life for those suffering from ailments, but term saved the NHS money by keeping those at risk of poor health active. Ms Efthimiou suffers from rheumatoid arthritis, lung disease and depression.

She 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.”

When the new charges were introduced, the City announced that as well as keeping a level of subsidy, they would include concessions for under 16s and over 60s, offering free swims before 9am – but there was no free swim for disabled users.

The Kenwood Ladies Ponds Association (KLPA), who backed the Judicial Review, offered evidence they had collected from swimmers that showed the charges had disproportionately effected disabled people. They also highlighted how the City had reneged on a vow to gather and monitor figures on concessions and had no understanding of how the charges were working.

However in a judgment handed down today (Thursday) the High Court dismissed the claim, stating disabled people were not disadvantaged by charging and the KLPA’s suggestions of ways to lower or spread the costs of a swim were not reasonable.

Lord Justice Cotter added he did not accept evidence from health professionals that cold water swimming had particular benefits to disabled people, nor that disabled people had lower incomes and needed extra help to afford a swim.

The KPLA’s chairwoman Mary Powell added: “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.”

Ms Efthimiou’s solicitor Kate Egerton, of Leigh Day, said she felt the judge did not take into account how much the charges were hitting those most in need.

She 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.”

The City of London have been approached for comment.