62. I was taken by Mr Wise QC and Mr Suterwalla to s149, who emphasised: (1) the mandatory nature of the obligation imposed by the section; (2) the specific obligation to have due regard to the need to take steps to meet the different needs of (in this case) disabled adults from non-disabled adults and, in particular, to take steps which take account of disabled adults’ disabilities. As to point (2), they submitted that this was far from being a vague or a general exhortation, but a hard edged requirement to have regard to the need to identify how the needs of disabled adults differed from those of non-disabled adults and to ascertain what steps could and should be undertaken to meet those needs.

63. I was also referred by them to the decision of the Divisional Court in Brown v Secretary of State for Work & Pensions [2008] EWHC 3158 (Admin), where Aikens LJ: (a) held that the obligation to have ‘due regard’ meant to have proper and appropriate regard for the goals set out in the (predecessor) section [para 82]; (b) held that in order to comply with that obligation it was necessary to have due regard to the need to gather relevant information [para 85]; (c) identified a number of relevant principles as to how that duty should be fulfilled in practice, including a duty to exercise the duty in substance, as opposed to box ticking, with rigour and with an open mind [paras 90–96].

64. I was also referred by Mr Wise QC and Mr Suterwalla to the decision of the Court of Appeal in R (Bracking) v Secretary of State for Work & Pensions [2013] EWCA Civ 1345 and, in particular, the eight relevant principles identified by McCombe LJ at para 26 of his judgment. The claimants particularly emphasised: (a) principle 4, the need to assess the risk and extent of any adverse impact and means of elimination before adopting the policy and not as a rearguard action; (b) principle 6, the need to have specific conscious, as opposed to merely general, regard; (c) principle 8, the need for a proper and conscientious focus on the statutory criteria, and the need to make inquiry.

65. Mr Greatorex did not contest these principles. He did however remind me, by reference to these authorities, that it is a duty to have regard, not a duty to achieve a particular result, and that weight was a matter for the decision maker and not the court. He also referred me to the decision of the Court of Appeal in Bailey v Brent LBC [2011] EWCA Civ 1586, to the effect that: (a) the decision is a fact-sensitive one [para 83]; (b) s149 does not require the decision maker to speculate, investigate or explore ad infinitum, or to apply the degree of forensic analysis which a QC would deploy in court [para 102]. He also submitted that, although recommended as advisable, there was no positive obligation to undertake or to record the result of a formal equality impact assessment, so that I should have regard to the totality of the process, and not limit myself to conducting a forensic analysis of the words used in the impact assessment.

66. Mr Greatorex also submitted that in a case such as the present, which was concerned exclusively with disabled persons, it could not possibly be said that the defendant had overlooked its duty to have due regard to the impact of its decision on disabled persons. Mr Wise QC and Mr Suterwalla countered by submitting that this illustrated the danger of adopting a general approach, as opposed to the focussed rigorous approach which was required, particularly by reference to the need to have due regard to the need to take mitigating steps.