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
Facts: in order to make necessary budgetary savings, Lancashire determined to reduce its adult social services expenditure and to undertake consultation on specific money-saving initiatives, including changing the eligibility threshold from moderate to substantial. That decision was made later, after consultation and an equalities impact assessment.
Judgment: Kenneth Parker J held that it had been lawful for Lancashire to take a preliminary budgetary decision, knowing that implementation of the budget was likely to adversely affect disabled persons, but not committing itself to any specific initiative until consultation and compliance with the PSED had been achieved which, later, had been achieved:
43. In relation to the statutory duties under section 49A DDA, the leading guidance as to the relevant principles has been given by the Court of Appeal in R (Baker) v Secretary of State for Communities and Local Government [2008] EWCA Civ 141 at paras 31–40 and by the Divisional Court in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) at paras 79–96. A number of principles emerge as follows:
i) The statutory duty under Section 49A DDA is not one to achieve a particular substantive result (whether to promote equality or otherwise) but to have ‘due regard’ to the need to achieve these goals. Due regard is regard that ‘is appropriate in all the circumstances’ (Baker at para 31 by Dyson LJ (as he then was)).ii) The public authority must also pay regard to any countervailing factors which, in the context of the function being exercised, it is proper and reasonable for the public authority to consider. The weight to be given to the countervailing factors is a matter for the public authority, not the court, unless the assessment by the public authority is unreasonable or irrational (Baker at para 34, Brown at para 82).iii) A failure to make explicit reference to the statute does not show that the duty has not been performed (Brown at para 93). It is immaterial whether or not the decision-maker was even aware of the duty provided that in substance he had due regard to the matters specified in it (Baker at paras 36, 37, 40 and 46).iv) There is no obligation in the DDA to carry out a formal EIA (Brown at para 89) although such an EIA is a helpful way of demonstrating that the statutory duty has been complied with.
44. Mr Ian Wise QC, who appeared on behalf of the Claimants, laid emphasis on a number of other propositions that can be derived from the case-law as follows:
i) Due regard must be given ‘before and at the time that a particular policy that will or might affect disabled people is being considered by the public authority in question’ (Brown at para 91).ii) Due regard to the duty must be ‘an essential preliminary’ to any important policy decision not a ‘rearguard action following a concluded decision’ (R (BAPIO Action Limited) v Secretary of State for the Home Department [2007] EWCA Civ 1139 at para 3 by Sedley LJ).iii) Put another way, consideration of the duty must be ‘an integral part of the formulation of a proposed policy, not justification for its adoption’ (R (Kaur) and others v Ealing LBC [2008] EWHC 2062 (Admin) at para 24 by Moses J (as he then was)).iv) ‘Due regard’ means specific regard by way of conscious approach to the specified needs (R (Meany) v Harlow District Council [2009] EWHC 559 (Admin) at para 74; R (Boyejo) v Barnet LBC [2009] EWHC 3261 (Admin) at para 58).v) If a risk of adverse impact is identified consideration should be given to measures to avoid that impact before fixing on a particular solution (Kaur at para 44).
45. Mr Wise also relied heavily on the recent decision in R (WM and others) v Birmingham City Council [2011] EWHC 1147 (Admin). In that case Birmingham decided to restrict eligibility for adult social care only to those individuals with critical needs. Taking its decision, Birmingham produced several equality impact assessments which purported to show due regard to the disability equality duty. However, Walker J held that due regard had not in fact been shown and quashed the decision. The thrust of that decision was that although Birmingham City Council had been aware of the need to pay due regard it had not, in fact, sought to carry out an assessment of the practical impact on those whose needs in a particular respect fell into the substantial band but not into the critical band. Thus the Judge said:
‘I readily accept that throughout the process the Council was giving consideration to how to address the needs of the disabled. In that sense its decisions taken in relation to adult social care were decisions which were relevant to its performance of the Section 49A duty. That is not the same thing, however, as doing what Section 49A seeks to ensure, namely to consider the impact of a proposed decision and ask whether a decision with that potential impact would be consistent with the need to pay due regard to the principles of disability equality.’ (para 179)