Facts: in order to make necessary budgetary savings, Birmingham decided only to meet ‘critical’ needs, whereas it had previously met ‘critical’ and ‘substantial’ needs.

Judgment: Walker J held that Birmingham’s consultation and its discharge of the disability equality duty had been unlawful:

1) The material prepared for consideration on 1 and 14 March 2011 failed to address the questions which arose when considering whether the impact on the disabled of the move to ‘critical only’ was so serious that a less draconian alternative should be identified and funded to the extent necessary by savings elsewhere; the authority had not in any real sense moved beyond a generalised description of the likely impact and it was difficult in the circumstances to see how there could be due regard to the matters in section 49A(1) of the Disability Discrimination Act 1995 without some attempt at assessment of the practical impact on those whose needs in a particular respect fell into the substantial but not critical band; even if councillors were able to form some opinion as to the broad impact, there was not in the material any assessment of the extent to which the potential severity would or would not be reduced by such mitigating factors as were mentioned.

2) The failure to address the right questions for the purposes of section 49A inevitably carried with it a conclusion that the consultation was inadequate; the consultation was also flawed because of the scope for confusion about whether the new offer related to personal or social care and because the true amount of the proposed saving for the move to critical only was not made clear until a late stage, so that consultees did not have the opportunity to assert that the sum involved in leaving the eligibility threshold unchanged could properly be found by making savings elsewhere.1(2011) 14 CCLR 517–518.