16. Mr Chamberlain QC, who appeared with Ms Apps on behalf of the Defendant, submitted that as the duty relating to information is a duty to ‘have due regard to the need to take steps to gather relevant information’ and not an independent information-gathering duty, it suffices if the decision maker, having considered the matter, reasonably believes he has sufficient material on which to discharge the PSED. I do not accept that submission, which would lead to the iniquitous result that a decision taken on the basis of inadequate information could be upheld on the basis that a Minister reasonably (but mistakenly) believed he had sufficient information to discharge the PSED.

17. In Hurley and Moore, Elias LJ accepted the submission that the combination of the Tameside principle and the duty of ‘due regard’ under s149 of the 2010 Act required public authorities to be properly informed before taking a decision. His observation that further information-gathering was unnecessary if the public body properly considers that it can exercise its duty with the material it has, must be read in that context. ‘Properly’ connotes that the public body has sufficient relevant material and therefore does not need to gather more, even if a further consultation or evidence-gathering exercise would result in it being even better informed.

18. A decision cannot be impugned if it was taken on sufficient information, even if additional relevant information might have been obtained, but the decision maker has taken the reasonable view that such additional information would not materially add to his store of relevant knowledge. That is so even if that view, in hindsight, turns out to have been mistaken. However, if the decision maker is not in fact properly informed, it is no answer to the challenge to say that he reasonably believed that he was. The question whether the information gathered and considered by the defendant was adequate for the purpose of performing his statutory duty is a matter for the court to decide.

19. In Hurley and Moore Elias LJ also made it clear (at [87]) that:

‘it is quite hopeless to say that the duty has not been complied with because it is possible to point to one or other piece of evidence which might be considered relevant which was not specifically identified in the EIA. I suspect that virtually every decision could be challenged on that basis…’

He specifically endorsed the observations of Davis LJ in R (Bailey) v London Borough of Brent [2011] EWCA Civ 1586 at [102] that decision-makers:

‘cannot be expected to speculate on or to investigate or to explore such matters ad infinitum; nor can they be expected to apply, indeed they are to be discouraged from applying, the degree of forensic analysis for the purpose of an EIA and of consideration of their duties under s.149 which a QC might deploy in court’.

20. In R (Zaccheus 2000 Trust) v Secretary of State for Work and Pensions [2013] EWCA Civ 1202, Sullivan LJ endorsed those observations, and those of Underhill J at first instance to the effect that the court is not concerned with a drafting competition. EIAs (Equality Impact Analyses, now known as Equality Analyses or EAs) are not legal documents. Their purpose is to evidence that due regard has been had to the specified factors. Sullivan LJ stated that in almost every case, it would be possible to say that one or more of the specified factors could, with advantage, have been considered in greater detail, but the fact that criticisms can properly be made of an EIA does not mean that the public authority exercising the function will have failed to have due regard to the specified factors [66].

21. In that case, the criticism of the EIA was remarkably similar to that in the present case, in that it was said that no attempt had been made to quantify the impact of the decision (restricting the increases in housing benefit to the consumer price index). The EIA had stated, with reasons, why it was not possible to provide estimates on the distribution of losses because the precise impact depended on various (imponderable) factors including whether landlords decided to restrict rent increases. The Court of Appeal held that the lack of quantification in the EIA did not lead to the conclusion that there was a failure to have due regard to the specified factors. Moreover, although the analysis in the EIA was limited, and more could have been said, the Court of Appeal did not accept that the information which was provided was irrelevant or uninformative.

22. In R (Greenwich Community Law Centre) v London Borough of Greenwich [2012] EWCA Civ 496, Elias LJ at [30] held that the court should ask:

‘whether as a matter of substance there has been compliance; it is not a tick box exercise. At the same time the courts must ensure that they do not micro-manage the exercise.’ (emphasis added)

23. The duty to have ‘due regard’ is not a duty to achieve a result, but a duty to have regard to the need to achieve the relevant goals. As McCombe LJ made clear in Bracking No 1 at [26], citing with approval an earlier passage in the judgment of Elias LJ in Hurley and Moore at [77]–[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 a different weight to the equality implications than the decision maker did. 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.

24. It is of importance to highlight this in the present case, because the decision to close the ILF has understandably engendered very strong feelings among those who may be adversely affected by it. However, no challenge has been made to the Minister’s decision on the basis that it was Wednesbury unreasonable. It was common ground before me that if the court was satisfied that there was due compliance with the PSED, this claim for judicial review must fail. It is no part of the court’s function to express a view as to the quality or correctness of the decision. It can only decide whether the decision was taken lawfully.