CHAPTER 5
The public sector equality duty
5.16Who is under the PSED and when? 5.18Who are the beneficiaries of the PSED? 5.19What is ‘due regard’? 5.35Complying with the PSED in practice 5.41Statutory instruments 5.42Guidance, codes and technical guidance Cases
5.42.1R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293, [2006] 1 WLR 3213 It had been disproportionate for the Secretary of State to exclude from an ex-gratia compensation scheme British citizens who had not been born in the UK, unless one of their parents or grandparents had been. In addition, the Secretary of State had failed to discharge his duty under section 71 of the Race Relations Act 1976
5.43R (Chavda) v Harrow LBC [2007] EWHC 3064 (Admin), (2008) 11 CCLR 187 A local authority failed to discharge the disability equality duty when it failed to draw the decision-makers’ attention to the duties imposed thereby
5.43.1R (BAPIO Action Limited) v Secretary of State for the Home Department [2007] EWCA Civ 1139 A race equality impact assessment was an essential preliminary to a lawful decision and ought not to be undertaken as a rearguard action
5.44R (Eisai Ltd) v NICE [2007] EWHC 1941 (Admin), (2007) 10 CCLR 368 Since decision-makers had not been advised about their statutory duties, and their consideration of the issues did not disclose an awareness of or consideration of such duties, their formulation of policy and decision-making were unlawful
5.44.1R (C) v Secretary of State for Justice [2008] EWCA Civ 882, [2009] QB 657 Delegated legislation promulgated in advance of completing a race equality impact assessment under section 71 of the Race Relations Act 1976, or undertaking necessary consultation, was unlawful and would be quashed notwithstanding the consultee’s participation in the judicial review and a very belated, ex post facto impact assessment
5.45R (AM) v Birmingham CC [2009] EWHC 688 (Admin), (2009) 12 CCLR 407 Discharge of the community care assessment and planning process also discharged the disability equality duty
5.46R (Boyejo) v Barnet LBC [2009] EWHC 3261 (Admin), (2010) 13 CCLR 72 Not only had the local authorities done insufficient to draw the decision-makers’ attention to their duty under the disability equality duty, the impact assessments, concluding that there would not be any adverse consequences, were Wednesbury irrational
5.47R (Domb) v Hammersmith & Fulham LBC [2009] EWCA Civ 941 The local authority had acted lawfully by providing decision-makers with an impact assessment and information about their duties under the disability equality duty and related legislation, and giving careful consideration to the objections of disabled persons and the potential adverse impacts upon them, notwithstanding a failure to include reference to gender and race issues in the formal report, since the impact assessment rationally concluded that there was no significant risk of adverse consequences in those regards
5.48R (JL) v Islington LBC [2009] EWHC 458 (Admin), (2009) 12 CCLR 322 The local authority had not discharged the disability equality duty because there was no audit trail or other documentation demonstrating a proper approach
5.49Pieretti v Enfield LBC [2010] EWCA Civ 1104, (2010) 13 CCLR 650 The disability equality duty applied to all local authority functions, including under sections 184 and 202 of the Housing Act 1996
5.50R (W) v Birmingham CC [2011] EWHC 1147 (Admin), (2011) 14 CCLR 516 A generalised consideration of the likely impact, without any real assessment of the practical effect of what appeared to be a significant restriction of eligibility for care services, resulted in a local authority failing to have ‘due regard’ to the needs identified in the PSED
5.51R (McDonald) v Kensington & Chelsea RLBC [2011] UKSC 33, (2011) 14 CCLR 341 It had been unnecessary explicitly to refer to the disability equality duty when undertaking a community care assessment and it could not be inferred that the disability equality duty had been disregarded
5.52Barnsley MBC v Norton [2011] EWCA Civ 834, (2011) 14 CCLR 617 It was a breach of the disability equality duty to fail to consider the needs of a disabled occupier before evicting her
5.53JG and MB v Lancashire CC [2011] EWHC 2295 (Admin), (2011) 14 CCLR 629 It was legitimate to make a macro budgetary decision, likely to adversely affect disabled persons, on the basis that the council was not committed to any specific initiative until consultation and compliance with the PSED had been undertaken
5.54R (Rajput) v Waltham Forest LBC, R (Tiller) v East Sussex CC [2011] EWCA Civ 1577, (2012) 15 CCLR 147 Where the potential impact of changes to service provision on elderly and disabled individuals was obvious, as was the justification (a budgetary saving) and decision-makers had been advised of their duty under the disability equality duty and the factual background, and plainly understood them, their balancing of risks and benefits discharged their duty under the disability equality duty, notwithstanding any express reference to the legislation
5.55R (JM and NT) v Isle of Wight Council [2011] EWHC 2911 (Admin), (2012) 15 CCLR 167 A flawed consultation resulted in decision-makers having inadequate information about risk and consequently not have ‘due regard’ to the needs in the PSED
5.56R (D, S) v Manchester CC [2012] EWHC 17 (Admin), (2012) 15 CCLR 603 While the local authority had not undertaken a formal impact assessment, in substance it had discharged the PSED
5.57R (South West Care Homes Ltd) v Devon CC [2012] EWHC 2967 (Admin) The PSED was breached by a failure to consider measures of mitigation and of the proper management of risk
5.57.1R (RB) v Devon CC [2012] EWHC 3597 (Admin), [2013] Eq LR 113 5.58R (D) v Worcestershire CC [2013] EWHC 2490 (Admin), (2013) 16 CCLR 323 Notwithstanding shortcomings in the equality impact assessment and an absence of qualitative and quantative data, decision-makers were informed of the risks and mitigating measures and had in substance discharged the PSED
5.59R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, (2013) 16 CCLR 479 Owing to a failure to draw the Minister’s attention to the possible adverse consequences for disabled persons, and her legal duties under the PSED, the PSED had been breached
5.60R (T) v Sheffield CC [2013] EWHC 2953 QB, (2013) 16 CCLR 580 Too fine a level of analysis risks descending into an impermissible appeal of the merits
5.61R (Michael Robson) v Salford CC [2014] EWHC 3481 (Admin), (2014) 17 CCLR 474 Some parts of the assessment were not as detailed and rigorous as they could have been but in the round the PSED was discharged
5.62R (Aspinall and others) v Secretary of State for Work and Pensions [2014] EWHC 4134 (Admin) The Secretary of State had clearly demonstrated an awareness of the potential adverse effect on disabled people, of closing the Independent Living Fund and the application for judicial review was a misconceived attempt to persuade the court to engage in micro-management
5.63R (MA) v Secretary of State for Work and Pensions [2014] EWCA Civ 13, [2014] PTSR 584 The Secretary of State had had regard to the risks to disabled persons and budgetary considerations, he was aware of his legal duties and had, in substance, discharged the PSED
5.64R (Michael Robson) v Salford CC [2015] EWCA Civ 6 Notwithstanding imperfections in its approach, viewed more widely, the evidence may show that a local authority had had proper regard to the PSED
5.64.1Hotak, Kanu and Johnson v Southwark LBC and Solihull MBC [2015] UKSC 30, [2015] 2 WLR 1341 A homeless person is in priority need if he or she is vulnerable compared with the average person not the average homeless person. When deciding whether or not a particular individual has a priority need, the housing officer had to discharge the PSED
5.65R (Tilley) v Vale of Glamorgan Council [2015] EWHC 3194 (Admin) A failure to discharge the PSED was immaterial in the context of a decision that would not require any particular service being terminated
5.66R (Mark Logan) v Havering LBC [2015] EWHC 3193 (Admin) The only relief granted would be declaratory, in a case where a lawful EIA had been drawn to the attention of some, but not all, councillors, when the Council reached a decision in full council
5.67R (Hawke) v Secretary of State for Justice [2015] EWHC 3599 (Admin) Where section 31(2A) of the Senior Courts Act 1981 applies the court may not grant a declaration but it may furnish the parties with a ‘declaratory judgment’
5.68R (DAT) v West Berkshire Council [2016] EWHC 1876 (Admin), (2016) 19 CCLR 362 A budgetary decision was unlawful because the report to members failed to set out or accurately summarise the PSED but, otherwise, the material before members was lawful
5.68.1R (B) v Oxfordshire CC [2016] EWHC 2419 (Admin) When budget setting the full Council was not required to have all the relevant consultation responses before it and was not required to discharge the PSED otherwise than by being aware that the implementation of the proposed policies, on the basis of which the budget was approved, would be likely to have an impact on affected services
6.68.2Birmingham CC v Wilson [2016] EWCA Civ 1137 Although a housing authority was required to enquire into whether there was a real possibility that a homeless household included a person with a disability, relevant to the homeless assessment, that duty was no more than a duty of Wednesbury rational enquiry