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
Facts: Hammersmith decided to reduce local council tax by three per cent. It then decided to introduce a charging regime for home care services. Ms Domb sought a judicial review, inter alia, on the basis that Hammersmith had failed to discharge its duties under equalities legislation.
Judgment: the Court of Appeal (Lord Clarke MR, Sedley and Rix LJJ) held that, in the circumstances of that case, the three per cent Council Tax cut had to be treated as a given, so that the only realistic options for consideration were charging or raising the eligibility threshold. It was obvious that the introduction of charging would adversely impact on the users of home care services but there was no evidence that the local authority did not have due regard to the relevant equality duties as a matter of substance as well as form: not only had a careful consultation been carried out, in which the principled opposition to a charging scheme had been stressed and reported on in the report to cabinet, but the report advised decision-makers of the thrust of their duty under the disability equality duty and underlined in the strongest terms that the issue required decision makers to take care before they acted. Smaller points on the detail of the impact assessment and/or report did not lead to the conclusion that there had been any material failure of due regard. The failure to make specific mention of the racial and gender equality duties in the report was not a serious flaw, given the evidence that there would be no disproportionate adverse impact on racial groups and women. The Court left open the question whether the equality duties fell to be discharged when macro budgetary decisions were made, that impinged on later decision-making of the kind in the present case.
Rix LJ said this on the jurisprudence:
52. Our attention has been drawn to a number of authorities on the need to have due regard to equality duties, in particular R (Elias) v Secretary of State for Defence [2005] EWHC 1435 (Admin) (Elias J), [2006] EWCA Civ 1293, [2006] 1 WLR 3213, R (Chavda) v London Borough of Harrow [2007] EWHC 3064 (Admin), (2008) 11 CCLR 187 (HHJ Mackie QC), R (Baker) v Secretary of State for Communities and Local Government [2008] EWCA Civ 141, [2008] LGR 239, R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), and R (Meany, Glynn and Sanders) v Harlow District Council [2009] EWHC 559 (Admin) (Davis J). I find the greatest help in the judgments of Dyson LJ in Baker (dealing with the RRA 1976) at paras 30ff and of Scott Baker LJ in Brown (dealing with the DDA 1995) at paras 89/96, where each of them summarises what is involved in the duty to have ‘due regard’. For present purposes I take from those summaries in particular the observations that there is no statutory duty to carry out a formal impact assessment; that the duty is to have due regard, not to achieve results or to refer in terms to the duty; that due regard does not exclude paying regard to countervailing factors, but is ‘the regard that is appropriate in all the circumstances’; that the test of whether a decision maker has had due regard is a test of the substance of the matter, not of mere form or box-ticking, and that the duty must be performed with vigour and with an open mind; and that it is a non-delegable duty.
53. No authority has been cited as being of particular relevance to the facts of our case. I note, however, that Chavda concerned the activities of councils with respect to their provision of social services. In Chavda, where Harrow restricted home care services to people with critical needs only, there was a total failure to mention the DDA 1995 duty in any of the documents produced for Harrow’s decision makers. There was no effort proactively to seek the views of the disabled or to refer to the duty in the planning stages of the consultation. There was no equality impact assessment. Harrow nevertheless submitted that it had observed its duty in substance, and had engaged in consultation and other ways with the disabled. However, what Judge Mackie considered as critical was that ‘There is no evidence that this legal duty and its implications were drawn to the attention of the decision-takers who should have been informed not just of the disabled as an issue but of the particular obligations which the law imposes’ (at para 40). However, I cannot say that I derive any assistance from that, very different, case.
Sedley LJ added this important observation:
79. Members are heavily reliant on officers for advice in taking these decisions. That makes it doubly important for officers not simply to tell members what they want to hear but to be rigorous in both inquiring and reporting to them. There are aspects of the evaluation, quoted by Rix LJ, which strike me as Panglossian – for example the ignoring of actual outcome in favour of ‘planned outcome’ and the limiting of consequential risk to the possibility that charges would not be introduced – and parts of the report to members which present conclusions without the data needed to evaluate them.