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
Facts: Manchester decided to reduce its adult social care budget by £17M over two years and the claimants sought a judicial review, on the basis that Manchester had failed to discharge its duty under section 49A of the Disability Discrimination Act 1995.
Judgment: Ryder J held that Manchester had acted lawfully: it had consulted extensively and taken into account the responses, in particular, of disabled and elderly persons; it had considered the impact of its proposals on such persons and the countervailing factors that justified the course proposed; decision-makers were advised about the PSED; the macro budget was subject to implementation in the light of more specific consultation and further consideration of the PSED in the light of specific initiatives; accordingly, Manchester clearly discharged the PSED, notwithstanding their failure to undertake a formal impact assessment:
59. General: I have already commented that the budget strategy was as a matter of principle lawful and in accordance with good practice. Save as respects whether due regard was had to the public sector equality duty or rather the DDA 1995 duty, the claimants do not suggest otherwise. Good governance demands that a budget is not only an estimate of planned spending, it is also a projection based upon foreseeable risks which includes a contingency for uncertainties. Where risk assessments are incomplete or inchoate and/or financial circumstances are such that predictions are necessarily less certain, the contingency becomes all the more important. Here it was crucial. Were this not to be the case, budgets of many public bodies would be impugned by the erroneous elision of uncertainty with unfairness and/or illegality. That is not in any way to suggest that the public sector equality duty or its predecessor do not apply to budgetary decisions: they categorically do, but where flexibility is built into the budget so that subsequent corporate decisions and decisions relating to individuals can still lawfully be made by reference to the potential impact of the proposals on the persons affected then it is possible for the duty to be complied with i.e. there is nothing wrong in principle with such an approach and nothing inconsistent with the duties under the DDA 1995 or the EA [Equality Act] 2010.
60. In this regard I find myself in agreement with Kenneth Parker J in JG and MB v Lancashire CC [2011] EWHC 2295 (Admin) at [48] to [51] in particular at [50] albeit in the different factual circumstances of that case:
‘The economic reality was that to meet imperative needs of reducing expenditure it would be extraordinarily difficult to avoid an adverse effect on adult social care. But there remained flexibility as to how any such effect on disabled persons could be minimised and mitigated …’
61. I respectfully agree that this view of principle is reinforced by the application of the perspective provided by Ouseley J in R (Fawcett Society) v Chancellor of the Exchequer [2010] EWHC 3522 (Admin) at [15] to local government budgets. This was helpfully summarised by Kenneth Parker J in the Lancashire case at [52]:
‘in my view it was sensible, and lawful, for the defendant first to formulate budget proposals and then, at the time of developing the policies that are now under challenge, to consider the specific impact of proposed policies that might be implemented within the budgetary framework.’