35. ‘Due regard’ is such regard as is appropriate in all the circumstances. Dyson LJ (as he then was) said in R (Baker) v Secretary of State for Communities and Local Government[2008] EWCA Civ 141, [2009] PTSR 809 at para 31:
‘In my judgment, it is important to emphasise that the section 71(1) duty [Race Relations Act 1976 – one of the equality duties which was replaced by section 149] is not a duty to achieve a result, namely to eliminate unlawful racial discrimination or to promote equality of opportunity and good relations between persons of different racial groups. It is a duty to have due regard to the need to achieve these goals. The distinction is vital. Thus the inspector did not have a duty to promote equality of opportunity between the applicants and persons who were members of different racial groups; her duty was to have due regard to the need to promote such equality of opportunity. She had to take that need into account, and in deciding how much weight to accord to the need, she had to have due regard to it. What is due regard? In my view, it is the regard that is appropriate in all the circumstances. These include on the one hand the importance of the areas of life of the members of the disadvantaged racial group that are affected by the inequality of opportunity and the extent of the inequality; and on the other hand, such countervailing factors as are relevant to the function which the decision-maker is performing.’
36. At paragraph 36 of his judgment, Dyson LJ rejected a submission that the inspector’s failure to refer expressly to section 71 was decisive (section 71 is one of the statutory predecessors of section 149). He said, at paragraph 37, that the question was whether the duty had been complied with in substance. Just as the repetition of a mantra referring to the provision did not of itself show that section 71 had been complied with, so a failure to refer to the provision did not show that the duty was not discharged. In my judgment this approach was approved by the House of Lords in R v (McDonald) v Kensington and Chelsea RLBC [2011] UKSC 33, [2011] 4 All ER 881 per Lord Brown at paragraphs 23 and 24. Baker was a case about a decision of a planning inspector, and McDonald concerned a local authority’s decision to reduce the provision of care to a disabled woman. Neither case, as Mr Broach reminded me, was a challenge to a decision to cut a service which affected many people, but I do not consider that this can undermine the two principles to which Dyson LJ referred.
37. There is an apparent tension, if not a conflict, however, between those two principles and a trend in some of the other cases on the equality duties, exemplified most recently in R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, [2014] Eq LR 60 and in Hotak v Southwark London Borough Council [2015] UKSC 30, [2015] 2 WLR 1341. That general trend is to expound principles (often without relevant argument) which impose requirements on public bodies which are not expressly present in the language of section 149. In Bracking, at paragraph 25, McCombe LJ (with whom Kitchin LJ agreed) recorded that two lever arch files of authorities had been put before the court, including 13 on the equality duties. ‘Fortunately’, he said, ‘the relevant principles are not significantly in dispute between the parties’. He gave a summary of those principles at paragraph 26 of the judgment. Principle 5(i), for example, that ‘The… decision maker must be aware of the duty to have regard to relevant matters’ is inconsistent with Baker, and to some extent inconsistent with principle 5(iii). Principle 6 ‘…general regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria’ is also, on one reading, inconsistent with Baker.
38. At paragraph 26(8) the Court of Appeal cited, with apparent approval, paragraphs 77 and 78 of Hurley. In paragraph 77 of Hurley Elias LJ said, ‘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… made clear, it is for the decision maker to decide how much weight should be given to the various factors informing the decision’. In paragraph 78, he said, ‘The concept of ‘due regard’ requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria… In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance….’.
39. In paragraph 60 of Bracking McCombe LJ said, ‘In the end, drawing together the principles and the rival arguments, it seems to me that section 149 imposes a heavy burden on public authorities, in discharging the PSED and in ensuring that there is the evidence available, if necessary, to demonstrate their discharge. It seems to me to have been the intention of Parliament that these considerations of equality of opportunity (where they arise) are now to be placed at the centre of formulation of policy by all public authorities, side by side with all other pressing circumstances of whatever magnitude’.
40. Paragraph 60 of Bracking recognises that there may be circumstances in which the evidence it refers to is not necessary, and that there may be circumstances in which considerations of equality do not arise. These are important provisos. Nonetheless, it seems to me, also, that if and in so far as paragraph 60 suggests that public authorities must give equal weight to equality considerations and to other ‘pressing circumstances of whatever magnitude’ it is not supported by the language of section 149, and is inconsistent both with the passage from Hurley which is cited with apparent approval in paragraph 26(8) of Bracking, and with Baker. I consider, therefore, that paragraph 60 of Bracking cannot have been intended to have that effect.
41. The practical question, or questions, posed by section 149 in relation to a particular decision will depend on the nature of the decision and on the circumstances in which it is made. It is clear from the authorities that the fundamental requirement imposed by section 149 is that a decision maker, having taking reasonable steps to inquire into the issues, must understand the impact, or likely impact, of the decision on those of the listed equality needs which are potentially affected by the decision. On appropriate facts, this may require no more than an understanding of the practical impact on the people with protected characteristics who are affected by the decision (see, for example, paragraph 91 of R (MA) v Secretary of State for Work and Pensions [2014] EWCA Civ 13, [2014] PTSR 614, and paragraph 92, ‘In my view it was 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 of the bedroom criteria would have on disabled people’). Further, where an impact is obvious, as a matter of common sense, but its extent is inherently difficult to predict, there may be ‘nothing wrong in making a reasonable judgment and then monitoring the outcome with a view to making any adjustments that may seem necessary: the section 149 duty is ongoing’ (per Underhill LJ at paragraph 121 of R (Unison) v Lord Chancellor (No 3) [2015] EWCA Civ 935, [2016] 1 CMLR 25.
Discussion
Decision 1
42. I am conscious of the intense pressures, financial, and of timing, to which the decisions 1 and 2 were a response. I cannot ignore the time constraints which affected the Council in making decision 1, given, in particular, the tight framework for making a decision on the budget, the 47 different areas in which cuts were proposed in Phase 1, and the unexpected and late further reduction in Government funding which forced the Council to initiate the Phase 2 consultation. I do not, I hope, understate any of those factors. They are, however, not relevant to the legality issue, in my judgment. The only question on that issue is whether, in substance, members were given the help they needed on the legal issues which they had to consider before making a cut to the funding for short breaks.
43. These factors are relevant to the section 149 issue to some extent, because they are the background against which I must decide whether or not the Council had ‘due regard’ to the listed equality needs. The local authority context is also relevant to the question of due regard in a further way. The full council, unlike a government minister, is a collective body. It is made up of councillors, who (apart from members of the executive) are not full-time politicians. Those who are not retired, or not in work, often have full-time jobs outside local government. They fulfil important public duties part-time, often at meetings in the evening, often after a full day’s work. They are entitled to expect, and very often are given, excellent help by full-time expert officers to understand the policy and legal issues which will equip them to make lawful decisions. I readily accept Mr Knafler’s submission, based on paragraph 36 of the judgment of Baroness Hale in R (Morge) v Hampshire County Council [2011] UKSC 2, [2011] 1 WLR 268, that courts should not impose too demanding a standard on officers’ reports. Councillors are democratically elected. They do a difficult and at times unpopular job under tight time constraints. Parliament has given them, and not the courts, the job of making difficult decisions such as setting the annual revenue budget for their area. I also accept his submission that officers are entitled, if they can, to simplify and make concrete, for the purposes of the decision at issue, what may be complex legal issues. It may not always help councillors to give them the text of a statute. A pithy summary, if it is accurate, is often much more use.
44. I also accept that Mr Knafler’s submissions that the Council discharged the duty of reasonable inquiry imposed by section 149 by consulting with providers and parents/carers, and that the materials provided by officers to members (the summary of the consultation and the collection of the verbatim comments) could, in the circumstances of this case, and given the inherent future uncertainties, and the information gathered by officers from providers, have enabled members to understand the likely practical impact of the cut in funding on parents carers and children. I reject Mr Broach’s various submissions, based on a variety of different suggested deficiencies in the gathering and analysis of the relevant information by officers (for example on the question of unmet need), that the material could not have given members the necessary factual understanding. I bear in mind the warning of Laws LJ in R (MA) v Secretary of State for Work and Pensions [2013] EWHC (QB) 2213, [2013] PTSR 1521 at paragraph 86, of the dangers of the court ‘micromanaging’ decision making by public bodies.
45. The difficult question in this case is whether, despite that provision by officers to members of the necessary factual information, the Council failed to have due regard to the listed needs. I am conscious that this is a question of substance, not form. The problem is that while members were given the text of section 149, they were directed, in four places in the documents (in two cases in text adjacent to the recitation of section 149(1)), to the formula to which I have referred above. That would have been fine if the formula accurately encapsulated, for the purposes of the decision about short breaks, the effect of section 149. However, first, the formula is not tailored to that decision, and seems to be a general formula devised for all the 47 decisions. Second, it does not accurately capture the effect of section 149 in the context of that decision.
46. As I have found, members had the factual material which would have enabled them to have due regard to the statutory needs. However, they were directed to look at that material in a way that did not help them to focus on the right question, but, instead, told them to focus on an irrelevant, or at best, only partly relevant, question. Had the report only included the text of section 149(1), it might not have made councillors’ lives easy, but I could have been satisfied that they had considered the right question. The flaw in the presentation of the material is that the repeated use of the formula to which I have referred, twice with the text of section 149(1), and twice on its own. That way of presenting the equality issues unavoidably suggests that the formula is equivalent to, or a substitute for, the statutory considerations, and it is not. It does not satisfy me that members asked themselves the right question when they looked at the material officers had so diligently assembled.