The claimants, disabled adults receiving community care services challenged changes to the eligibility threshold for such services.
When carrying out their functions, public authorities must have ‘due regard’ to six ‘needs’ identified in the section. Each ‘need’ represents a particular goal, which if achieved, would further the overall goal of the disability legislation. But the authority is not under a duty to achieve those goals, namely, to eliminate discrimination or promote equality of opportunity. It is a duty to have due regard to the need to achieve those goals; R (Baker) v Secretary of State for Communities and Local Government [2008] LGR 239; [2008] EWCA Civ 141; [2009] PTSR 809, at . . When considering sub-paragraph (d), the duty is to have due regard to ‘the need to take steps to take account of disabled persons’ disabilities’: R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin); [2009] PTSR 1506 . .
‘Due regard’ is the ‘regard that is appropriate in all the circumstances’ Baker . . The authority must give ‘proper regard’ to all the goals in s.49A in the context of the function it is exercising and, at the same time, pay regard to any countervailing factors which, in the context of the function being exercised it is proper and reasonable for the authority to consider. The weight to be given to the countervailing factors is a matter for the public authority rather than the court unless the assessment is unreasonable or irrational. Baker. . Brown . .
The test whether a decision maker has had due regard is a test of the substance of the matter, not of mere form or box-ticking, and the duty must be performed with ‘vigour and an open mind’: R (Domb) v Hammersmith and Fulham London Borough Council [2009] EWCA Civ 941, [2009] LGR 843, at [52]; ‘rigour and an open mind’ Brown . .
General awareness of the duty does not amount to the necessary due regard, being a ‘substantial rigorous and open-minded approach’; R (Boyejo) v Barnet LBC [2009] EWHC 3261 (Admin); (2010) 13 CCLR 72 . .
In a case where the decision may affect large numbers of vulnerable people, many of whom fall within one or more of the protected groups, the due regard necessary is very high: R (Hajrula) v London Councils [2011] EWHC 448 (Admin) . .
The duty ‘complements’ specific statutory schemes which may exist to benefit disabled people: Pieretti v Enfield London Borough Council [2010] EWCA Civ 1104; [2011] PTSR 565 . .
‘Due regard’ must be given ‘before and at the time that a particular policy that will or might affect disabled people is being considered by the public authority in question’: Brown at [91]. Due regard to the duty must be an ‘essential preliminary’ to any important policy decision, not a ‘rearguard action following a concluded decision’: R (BAPIO Action Ltd) v SSHD [2007] EWCA Civ 1139 . . Consideration of the duty must be an ‘integral part of the formation of a proposed policy, not justification for its adoption’: R (Kaur and others) v Ealing LBC [2008] EWHC 2062 (Admin) . .
If a risk of adverse impact is identified, consideration should be given to measures to avoid that impact before fixing on a particular solution; Kaur and others at [44], R (Rahman) v Birmingham City Council [2011] EWHC 944 (Admin) at [35] (sub-para 8): Domb . .
The question of whether ‘due regard’ has been paid is for the Court itself to review – the Court should not merely consider whether there was no regard to the duty at all, or whether the decision was Wednesbury unreasonable; Boyejo . . R (Meany) v Harlow District Council [2009] EWHC 559 (Admin) . .
It is good practice for the public authority to make express reference to the statutory duty and the code Baker at . . Brown at . . But where the public authority is discharging statutory duties in respect of disabled persons, it may be ‘entirely superfluous’ to make express reference to s.49A and absurd to infer from an omission to do so a failure to have regard to the duty: R (McDonald) v Kensington and Chelsea RLBC [2011] UKSC 33; [2011] PTSR 1266 . . The question in every case is whether the decision maker has in substance had due regard to the relevant statutory need. Just as the use of a mantra referring to the statutory provision does not of itself show that the duty has been performed, so too a failure to refer expressly to the statute does not of itself show that the duty has not been performed; Baker . . The question is one of substance, not form: McDonald .
The public authority must have due regard to the need to take steps to gather relevant information to enable it to perform its duty under s.49A(1)(d): Brown
There is no statutory duty to carry out an equality impact assessment Brown . ., Domb . .. At the most, s.49A imposes a duty to consider undertaking an assessment, along with other means of gathering information about the impact on disabled people: Brown.’
Judges:
Lang J
Citations:
[2011] EWHC 2911 (Admin)
Links:
Cited by:
Cited – Diedrick, Regina (on The Application of) v Hampshire Constabulary and Others Admn 26-Jul-2012
The claimant challenged the alteration of the PACE code of conduct to remove the mandatory requirement on an officer executing a stop and account or stop and search to record the self-defined ethnicity of the person so stopped, and also to challenge . .
Lists of cited by and citing cases may be incomplete.
Local Government
Updated: 26 September 2022; Ref: scu.448508