93. The relevant propositions of law for the purposes of this claim are as follows.

i) Section 149(1) sets out a number of statutory goals, eg the elimination of discrimination and the advancement of equality of opportunity. Section 149(3) sets out sub-goals in respect of the goal of advancement of equality of opportunity, eg the removal or minimisation of disadvantages suffered and the taking of steps to meet the needs of a relevant person. However, the provisions do not impose a duty on an authority to take any particular steps or to achieve any particular result or goal; nor, reciprocally, do they give direct rights to an individual with a protected characteristic. An authority merely has a duty to have due regard to the need to achieve the statutory goals.ii) ‘Due regard’ is merely proper or appropriate regard in all the circumstances (R (Baker) v Secretary of State for Communities and Local Government [2008] EWCA Civ 141 at [31]).iii) Determining whether the decision-maker has had due regard to the relevant statutory need or goal is an exercise (a) which is fact-sensitive, being dependent upon all the circumstances of the particular case (R (Harris) v London Borough of Haringey [2010] EWCA Civ 703 at [40], and R (Bailey) v London Borough of Brent [2011] EWCA Civ 1586 at [75] and [83]); (b) which looks at substance, not form (R (Domb) v London Borough of Hammersmith & Fulham [2009] EWCA Civ 941); (c) for which a mere general awareness of the duty is insufficient: it requires ‘a conscious directing of the mind to the obligations’ (R (Meany) v Harlow District Council [2009] EWHC 559 (Admin) at [74] per Davis J (as he then was), approved in Bailey); (d) which requires consideration of specific goals in play and an analysis of the relevant material with those goals in mind (Harris at [40]); (e) which requires ‘rigour and an open mind’ (R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin)) at [92]); and (e) which must be performed before or at the time the particular policy is considered, it being ‘an essential preliminary’ to any important policy decision not a ‘rearguard action following a concluded decision’ (R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWCA Civ 1139).iv) If the risk of adverse impact is identified, consideration should be given to measures to avoid that impact before fixing on a particular solution (R (Kaur) v London Borough of Ealing [2008] EWHC 2062 (Admin)).v) The court’s role in considering whether the decision-maker has erred in paying due regard to the relevant goals has been the subject of consideration in a number of recent cases, which have tended to consider two options: (a) the court considers whether any regard was taken by the decision-maker, and if so, whether the decision was Wednesbury unreasonable; or (b) the court takes it own view of what is due regard in all the circumstances. I am afraid I have found that debate somewhat arid. The law, as I understand it, was set out by Elias LJ in R (Hurley and Moore) v Secretary of State for Business Innovation and Skills [2012] EWHC 201 (Admin) at [77]–[78]:‘77. … I do not accept that this means that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then as Dyson LJ in Baker (at [34]) made clear, it is for the decision-maker to decide how much weight should be given to the various factors informing the decision.78. The concept of ‘due regard’ requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision-maker. In short, the decision-maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors. If [the claimant’s] submissions on this point were correct, it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision-making.’That being a judgment of a Divisional Court, it is binding on me. However, with respect to judges who might have taken a different view from it, in my judgment (a) it is in accordance with principle; (b) it is in accordance with authorities of the higher courts such Domb (especially at [72]), Baker (at [34]) and Brown (at [82]), as well as recent judgments of this court (R (D and S) v Manchester City Council [2012] EWHC 17 (Admin) at [52]), and R (S and KF) v Secretary of State for Justice [2012] EWHC 1810 (Admin); and (c) I do not consider that Meany (at [72]), which seems to have been used to support an alternative approach (see JM at [104] and Williams at [18] and [24]–[25]), does, on a proper reading, support any different approach. In my judgment, the exposition of Elias LJ in Hurley and Moore, upon which I could not improve and which I gratefully adopt, is clearly correct. It requires the court to consider whether the decision-maker approached the question correctly, in line with the law set out above; but, if he does so, the weight given to the consideration is entirely a matter for him.…

95. I will deal with those in turn. However, before I do, it is worthwhile marking that this ground is particularly challenging for the claimant for the following reasons (which, in part, reflect the analysis and comments of Davis LJ in R (Bailey) v London Borough of Brent [2011] EWCA Civ 1586 at [102] and of His Honour Judge Keyser QC in R (Copson) v Dorset Healthcare University NHS Foundation Trust [2103] EWHC 732 (Admin) at [57], for which I am grateful):

i) The claimant has the burden of showing that the relevant public authority has failed to comply with its PSED.ii) The Policy, which the Cabinet determined should be adopted, was specifically in respect of the provision of services to persons with a relevant protected characteristic (ie disability), and the relevant protected characteristic was the reason for the provision of services to them. Indeed, the very decision for the Cabinet was in relation to the proper balance between a diminution in choice and control of those with the relevant protected characteristic (ie adult community care service users) in favour of a reduction of public expenditure. As Judge Keyser astutely comments, it does not necessarily follow that the Cabinet had due regard to the need to advance equality of opportunity; but the subject matter of the Cabinet’s decision makes the claimant’s contention that the Cabinet failed to have due regard rather less plausible.iii) Whether an authority has complied with its PSED is fact-specific. This is not a case where the PSED was simply ignored. As I have indicated (see paragraph 43 above), not only was an EIA commissioned, the Council set up an EIA Working Group to oversee and contribute to the EIA, in the context of the consultation responses, and it met a number times. At each meeting, it considered the requirements of the PSED, and in particular the need to advance equality of opportunity for disabled people. The Council’s Equality and Diversity Manager (Ms Sandra Bannister), who was a member of that group, states:‘Throughout the decision-making exercise Due Regard was given to the need to advance equality of opportunity…’ (26 June 2013 Statement, paragraph 22))iv) As again referred to in paragraph 43 above, Ms Bannister accepts that the EIA could have been fuller; but (a) an EIA is not a statutory requirement – it is merely a tool whereby decision-makers might inform their efforts to comply with their PSED – and it is thus wrong to subject it to minute forensic or exegetical analysis (see Domb at [52] per Rix LJ, Bailey at [102] per Davis LJ, and Copson at [57(6)] per Judge Keyser); and (b) Ms Bannister considered that, reading all the material the Cabinet had before it, the potential adverse impact for disabled people affected by the policy was clear:‘… a small number of individuals are likely to be adversely impacted by the Policy because it will result in them not receiving their first choice as to provision to meet their eligible needs…’.v) Although perhaps not a factor of great weight, the Cabinet was concerned that adult community service users aged over 65 were the subject of the additional restriction on community care packages of a usual maximum expenditure not exceeding the equivalent residential care costs; and were concerned that this was unfair as between disabled adults of different ages on the basis of age. That was factor is favour of the Policy.