38. There is no dispute as to the principles governing the application of section 149. We were referred to a convenient summary at paragraph 26 of the judgment of McCombe LJ in R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, (2013) 16 CCLR 479. Mr Wise pointed in particular to subparagraph (2), where it is said that an important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision-maker in seeking to meet the statutory requirements; to subparagraph (4), where it is stated that the public authority “must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a ‘rearguard action’, following a concluded decision”; and to subparagraph (8), which quotes from the judgment of Elias LJ in R (Hurley and Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin), [2012] HRLR 13. The quoted passages include these:

‘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 …89. It is also alleged that the PSED in this case involves a duty of inquiry. The submission is that the combination of the principles in Secretary of State for Education and Science v Tameside MBC [1977] AC 1014 and the duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it and this will frequently mean that some further consultation with appropriate groups is required. Ms Mountfield referred to the following passage from the judgment of Aikens LJ in Brown (para 85) [R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), [2009] PTSR 1506]:… the public authority concerned will, in our view, have to have due regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled persons’ disabilities in the context of the particular function under consideration.90. I respectfully agree ….’

39. In Bracking itself it was held that there was a breach of the duty, essentially because of the absence of hard evidence that the minister had had a focused regard to the potentially very grave impact upon individuals in the relevant group of disabled persons. As McCombe LJ put it at paragraph 63, ‘what was put before the minister did not give to her an adequate flavour of the responses received indicating that independent living might well be put seriously in peril for a large number of people’.

40. As to the reference to Brown in the passage quoted from Hurley and Moore, it is also relevant to note paragraph 89 of the judgment of Aikens LJ in Brown:

‘Accordingly, we do not accept that either section 49A(1) in general, or section 49A(1)(d) in particular, [ie the statutory predecessor to section 149 of the Equality Act 2010] imposes a statutory duty on public authorities requiring them to carry out a formal disability equality impact assessment when carrying out their functions. At the most it imposes a duty on a public authority to consider undertaking an assessment, along with other means of gathering information, and to consider whether it is appropriate to have one in relation to the function or policy at issue, when it will or might have an impact on disabled persons and disability.’

41. The only other authority to which we were referred on the issue is R (Bailey) v Brent London Borough Council [2011] EWCA Civ 1586, [2012] LGR 530, especially for the statement of Pill LJ at paragraph 83 that ‘[w]hat observance of [the] duty requires of decision-makers is fact-sensitive; it inevitably varies considerably from situation to situation, from time to time and from stage to stage’; and the observation of Davis LJ at paragraph 102 that, where the council was fully apprised of its duty under section 149 and had the benefit of a most careful report and impact assessment, it ‘cannot be expected to speculate on or to investigate or to explore such matters ad infinitum’.

42. The appellants’ essential case is that the Council failed to comply with its legal obligation to gather sufficient information, to analyse the adverse impacts of the closure of the PTU on users of the existing service, and to consider ways in which any disadvantage to them could be mitigated. It is submitted in particular that the Community Impact Assessment was inadequate for the purpose. That document is summarised at paragraph 41 of the judge’s judgment. As he states, it begins with a summary and continues in five sections to address what is being impact assessed (Section A), whether an assessment is required (Section B), the results of the consultation (Section C), potential impacts and how they will be addressed (Section D), and an action plan and review (Section E). The judge then sets out what he considers to be the most relevant points from Sections C3, D and E. I will not repeat that material.

…

47. I accept Mr Oldham’s submissions. In my judgment the Council did have due regard to the matters identified in section 149 in relation to the disabled adults potentially affected by the decision to close the PTU. That largely follows from the conclusions I have reached on the assessment issue and the consultation issue. Through the carrying out of individual transport assessments and a lawful consultation exercise, it had obtained sufficient information to discharge the duty of inquiry for the purposes of section 149. The information obtained was analysed in the Community Impact Assessment. It may be that the imperfections of that document went even further than was acknowledged by the judge, but in my view he was entitled to find on the basis of the document taken as a whole that the Council had proper regard to the section 149 matters. I do not accept the submission that a greater degree of analysis was required. The judge was also right to look at the matter more widely, as he did in paragraph 71 of his judgment, and to find that in its decision-making process as a whole the Council was evidently aware of the potential adverse impacts on disabled adult service users and was actively considering steps to meet the needs of such persons and to eliminate, reduce or mitigate those impacts. It seems to me that everything the Council did to ensure the discharge of its duty towards those persons under section 2 of the Chronically Sick and Disabled Persons Act 1970 also helped to ensure the discharge of its public sector equality duty towards them. The case advanced by Mr Wise does appear to me to go wider than the relevant ground of appeal but even if the full width of the case is entertained it should in my judgment fail.