52. Accordingly the council submits there was sufficient regard to impact on elderly and disabled residents. The Fee Structure Proposal report merely put a figure on the homes which were at risk of closure, a risk which in general terms had already been considered in the EIA. The exercise in which it was engaged did not involve the assessment of needs or the cutting of services or curtailment of choice but merely the calculation of cost.

53. In my judgment that approach fails to have due regard, in substance or with rigour or with an open mind, to the need to eliminate discrimination and to promote equality of opportunity amongst elderly or disabled residents. The council in carrying out this exercise failed to ask itself what it could do in respect of those needs. It is not good enough to say that the needs of individual residents had been or would be assessed under section 47 of the 1990 Act. In particular, even if most if not all homes identified in the Fee Structure Proposal report as at risk of closure would close in any event, there was no proper consideration of mitigation measures or proper management of such closures in setting the fees. The EIA should have been reconsidered having regard to this information. Having regard to the procedure adopted in the case of the structured closure of one home is not a sufficient regard to deal with this identified risk. Furthermore, there was no proper consideration in my judgment of the staff costs of engaging and interacting with those residents suffering from dementia.