5.57.1R (RB) v Devon CC [2012] EWHC 3597 (Admin), [2013] Eq LR 113
Facts: Devon undertook a procurement exercise and appointed Virgin Care as its preferred bidder for a contract to provide integrated health and care services for children and then decided to enter into a contract with Virgin Care. This was on the basis of draft/equality impact assessments that no impact on persons with protected characteristics was anticipated because there was to be no change in service provision.
Judgment: HHJ Vosper QC held that the procurement process had been unlawful because in breach of the PSED Devon had not considered the relative extent to which the bidders would address the equality needs set out in the PSED. However, relief beyond declaratory relief was refused because of the late stage the procurement process had reached, the fact that Devon had belatedly completed a lawful equality impact assessment and the inability of the claimant to point to anything other than speculative detriment:
54. Did it engage the public sector equality duty or was it solely based on economic matters? I accept that the criterion for selection was economic advantage. Miss Monaghan, however, submits that that is not simply the cheapest price; there must be a merits based assessment of which bid provides greatest economic advantage. One factor should surely be whether the provider meets equality needs. If it does not, it is difficult to see how its bid can properly be described as the most advantageous, however economical it might be. In assessing the provider’s ability to meet equality needs the public sector equality duty comes into play and the duty upon the defendants was not simply to consider the negative impact but to have due regard to all the nine needs identified in section 149.
55. Applying the principles set out in Bailey, to which I have referred above, I conclude that the decisions in July 2012 did engage the public sector equality duty. No focus on the duty occurred at that stage. The EIA carried out in March 2012 was not drawn to the attention of the decision makers in Cabinet or on the Board, either because the view was taken that this was a case of change of provider which did not engage the duty, or because there were to be no changes to the service so that no negative impact would occur.
56. I accept Miss Monaghan’s submission that such an approach misunderstands the duty. More was required. There should have been focus on the needs identified in section 149.
57. I do not however accept Miss Monaghan’s submission that the fact that it was not thought possible at that stage to assess changes in the provision of services has the consequence that the duty was not discharged. On that point I accept Mr Goudie’s submissions, which can be summarised as follows:
1.That changes may occur in any system for the provision of such services even when there is no change of provider.
2.That changes are to be expected when there is a change of provider.
3.That such changes can be evaluated in the context of the public sector equality duty only when their detail is sufficiently well established.
4.That the new provider will not be able to make changes unilaterally.
5.That even if the public sector equality duty does not apply to a private organisation (and there may be doubts about that proposition if it is fulfilling a public function) nevertheless, it will apply to the commissioners of services who will be involved in any decision for change; and
6.That the standard form of NHS contract into which the new provider will be required to enter will have the effect of imposing contractually a duty equivalent to that under section 149.
58. The argument on behalf of the claimant is that an evaluation of changes carried out after the contract has been award to Virgin Care will not result in a revocation of Virgin Care’s contract. But that, it seems to me, is not the point. It is the changes, not the supplier, which will then require to be evaluated.