Having ‘due regard’ is not Obligation to do
The claimant sought to challenge the decision to close her local post office on the basis that being retired and disabled and without a car in a rural area, the office was essential and the decision unsupportable. In particular she challenged the removal of post offices from the list of authorities with duties to make provision for the disabled.
Held: Section 49A requires the relevant public body to have ‘due regard’ to the specified matters. This does not impose a duty to achieve results. It does require the public body to take into account any countervailing factors which, in the context of the function being exercised, it is proper and reasonable for the public authority to consider.
Aikens LJ after reviewing the authorities considered the fulfilment of the duties of the decision maker: ‘i) The public authority decision maker must be aware of the duty to have ‘due regard’ to the relevant matters;
ii) The duty must be fulfilled before and at the time when a particular policy is being considered;
iii) The duty must be ‘exercised in substance, with rigour, and with an open mind’. It is not a question of ‘ticking boxes’; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument;
iv) The duty is non-delegable; and
v) is a continuing one.
vi) It is good practice for a decision maker to keep records demonstrating consideration of the duty.’
Aikens LJ
[2008] EWHC 3158 (Admin), [2009] PTSR 1506
Bailii
Disability Discrimination Act 1995 49A
England and Wales
Cited by:
Cited – Gill, Regina (on The Application of) v Secretary of State for Justice Admn 26-Feb-2010
Failure to provide programme discriminated
The claimant prisoner who had a learning disability said that he had been unable to complete the offending behaviour programmes because of his disability, that he had been kept in prison for much longer than he should have been as a consequence, and . .
Cited – Hotak and Others v London Borough of Southwark and Another SC 13-May-2015
The court was asked as to the duty of local housing authorities towards homeless people who claim to be ‘vulnerable’, and therefore to have ‘a priority need’ for the provision of housing accommodation under Part VII of the Housing Act 1996. Those . .
Cited – Hurley and Moore, Regina (on The Application of) v Secretary of State for Business Innovation and Skills Admn 17-Feb-2012
The applicants, intending university students, challenged the decision to raise to andpound;9,000 per annum, the fees which might be charged by qualifying universities.
Elias LJ said: ‘Contrary to a submission advanced by Ms Mountfield, I do . .
Cited – Jewish Rights Watch (T/A Jewish Human Rights Watch), Regina (on The Application of) v Leicester City Council Admn 28-Jun-2016
The claimant challenged the legaity of resolutions passed by three local authorities which were critical of the State of Israel. They said that the resolultions infringed the Public Sector Equality Duty under section 149 of the 2010 Act, and also . .
Lists of cited by and citing cases may be incomplete.
Discrimination, Administrative
Leading Case
Updated: 02 November 2021; Ref: scu.278963
