86. At para 83 of his judgment, Laws LJ set out a number of detailed matters which the claimants submitted the Secretary of State should have investigated. I give as an example: ‘(e) the ability of disabled people, and of children and their families, to cope with the effects of the Regulation, including difficulties they may face in taking compensatory steps (eg working, taking in a lodger, moving, requesting DHPs)’. At para 86, Laws LJ said that these criticisms were ‘an attempt to persuade the court to ‘micro-manage’ the policy-making process’. They looked very like a list of objections to the policy ‘under the guise of a litany of matters left unconsidered. That is all but an assault on the outcome – the terms of regulation B13 – rather than the process’.

87. Mr Westgate rejects this criticism of his case. He also says that there was no specific consideration by the Secretary of State (or the Divisional Court) of whether the requirements of section 149(1)(b), (3)(a) or (b), (4) or (6) were satisfied. There is no evidence that during the legislative process the Secretary of State even had his attention drawn to his obligation to have due regard to the need to advance equality of opportunity between disabled and non-disabled persons. This is an obligation that is distinct from the obligation to have due regard to the need to eliminate discrimination. The decision-maker cannot give due regard to the need to advance equality of opportunity without having first given informed consideration to what the barriers to equality of opportunity are, and what if anything could be done to address or diminish them. In relation specifically to section 149(6), there was no evidence that the Secretary of State had considered what particular steps he could have taken to meet the needs of disabled persons which were different from those of non-disabled persons.

88. Mr Westgate submits that, even if the minister had a vague awareness that he owed legal duties to the disabled, that would not suffice: see per Elias LJ quoted in the Bracking case [2014] Eq LR 60, para 77. The Secretary of State was bound to have due regard to the impact of the proposed scheme on disabled persons who, by reason of their disability, had a need for an additional room.

89, Ms Mountfield also submits that, in relation to the needs of those who were not under-occupying and the extent to which DHPs could prevent or mitigate inequality of opportunity, the Secretary of State failed to conduct a sufficiently focused and evidenced consideration of an obviously relevant statutory equality need. There was no evidence of any contemporaneous regard to the circumstances of those disabled persons who were deemed by the bedroom criteria to be under-occupying, but were not in fact under-occupying for disability reasons. The equality impact assessment stated in terms that the impact of DHPs had not been assessed.

90. Finally, Ms Mountfield submits that the Secretary of State could not lawfully rely on DHPs to solve the problem without conducting a proper analysis of whether local authorities were to be given the means to do so.

91. I would reject these submissions. I agree that it is insufficient for the decision-maker to have a vague awareness of his legal duties. He must have a focused awareness of each of the section 149 duties and (in a disability case) their potential impact on the relevant group of disabled persons. In some cases, there will be no practical difference between what is required to discharge the various duties even though the duties are expressed in conceptually distinct terms. It will depend on the circumstances. I am not persuaded that on the facts of this case there was any practical difference between what was required by the various duties. I did not understand any such difference to be suggested by Mr Westgate or Ms Mountfield.

92. The history of the evolution of the policy which I have set out at paras 15–36 above shows that the Secretary of State well understood that there are some disabled persons who, by reason of their disabilities, have a need for more space than is deemed to be required by their non-disabled peers. The question of how this special need should be accommodated in the proposed new scheme was the subject of wide consultation of interested parties and considered in great detail by the Secretary of State and Parliament. The particular issue of whether (i) there should be sub-categories who were to be excluded from the application of the bedroom criteria, (ii) their claims should be dealt with by DHPs or (iii) there should be a combination of these two solutions was considered at great length. So too was the question of whether there would be sufficient money available for DHPs and whether the adequacy of the DHP fund should be kept under review. This was all part of the decision-making process. In my view, it is clear that, in conducting this process, the Secretary of State did have due regard to his statutory duties. It was obvious that he was aware of the serious impact that the bedroom criteria would have on disabled persons who, by reason of their disability, had an actual need for more accommodation than they would be deemed to need by those criteria. That is why so much effort was devoted to seeking a solution to the problem. The PSED challenge is not concerned with the lawfulness or even the adequacy of the solution that was adopted. It is only concerned with the lawfulness of the process. In my view, the process did not breach the Secretary of State’s PSED.