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
Facts: JL suffered from autism and received 1,248 hours of support each year. Islington then changed its eligibility criteria, as a result of which disabled children with ‘high needs’ (such as JL) received only 624 hours each year. Islington later added a small number of additional hours to enable some respite provision to be made. JL sought a judicial review.
Judgment: Black J held that Islington had not undertaken a genuine assessment of JL’s needs but simply applied their new eligibility policy, that an eligibility policy could not be used to determine whether or not a local authority was under a duty to act under section 20 of the Children Act 1989 (which imposed an absolute duty) and that Islington’s policy was flawed in a number of respects, in particular in that it had the effect of excluding needs that Islington would have decided it was necessary to meet (under section 2 of the Chronically Sick and Disabled Persons Act 1970). In addition, Islington had failed to discharge its duty under section 49A of the Disability Discrimination Act 1995 when drawing up its criteria:
115. The claimants submit that by imposing a maximum of 12 hours for provision, in order to assist in one of the local authority’s stated aims, ie to make provision to more disabled people, the local authority may have extended opportunity for some disabled people (those who are less disabled) but may also have curtailed it for others (the more disabled). They argue that this is not consistent with the objectives in section 49A(c), (d) and (f), to which the local authority should have had due regard.
116. The local authority protests that the criteria were designed to promote those objectives. Its intention was, it says, to ensure that the most support went to those families with the highest needs; the greater the disability, the more substantial would be the service provision. This is the scheme that it built into the criteria. If there is any discrimination, it says, then it is against people who are not disabled, not against people who are.
117. The local authority response misses the point, in my view. This case itself is a clear example of the problem. The imposition of a cap on support at 12 hours a week led to a huge reduction in the assistance provided to JL. That had the capacity to render him and his family less able to cope with his disability and, therefore, to diminish his equality of opportunity vis a vis able bodied people and to discourage rather than encourage his participation in public life. Whether it did or not is not a matter upon which I wish to express an opinion; further assessment will be necessary to determine that. However, it is possible to see that, depending on a family’s particular circumstances, the result of the ceiling on support might be to deprive a child of features of his support which were critical to his functioning, especially if he was particularly needy. The saving in hours may have enabled the local authority to improve the lot of another, perhaps less, disabled child and secured greater equality of opportunity for him but that does not remove the disadvantage to the more disabled child …
121. The local authority submits that it has had regard to section 49A. However, there is no audit trail confirming that the local authority has complied with its DDA duty or even had reference to it at all. The local authority has produced no documentation to demonstrate a proper approach to the question. There is no evidence that a proper impact assessment was carried out to see how the proposals were likely to affect particular groups of disabled children …