The courts’ approach to challenges based on the public sector equality duty

The decision of the High Court in R (T) v Sheffield City Council (a case on cutting funding) reinforces the message that has been coming from the courts in the last year that:

  • The public sector equality duty (PSED) in section 149 of the Equality Act 2010 (EqA 2010) is not to be used by aggrieved claimants to challenge the merits of a local authority’s decision-making process.
  • Unrealistic standards should not be set for equality impact assessments (EIA).
  • It is not for the courts to micro-manage the consideration of equalities and decide whether the decision-maker had given appropriate weight to equalities.
  • Although the principles of the duty (and the court’s application of those principles) remain unchanged, there has been a shift in how the principles are applied in practice.

Previous approach of the courts

In contrast to the recent line of decisions rejecting PSED-based challenges, the courts previously had confirmed in a string of cases that local authorities, in their decision-making processes, should rigorously apply the PSED and that authorities were under extensive obligations to enquire into matters before taking decisions. For example:

  • London Councils were held to have breached their PSED duties when altering their funding of services provided by the voluntary sector.
  • The decision of two councils to remove resident wardens from sheltered accommodation was quashed for failure to  have regard to the interests of disabled residents under the Disability Discrimination Act 1995.
  • Birmingham City Council’s decision to end funding for voluntary legal advice services was quashed as  the decision was taken without regard to race and public sector equality duties.
  • A council’s decision to staff libraries with volunteers was held to be unlawful for failure to have regard to the PSED. 

The recent approach of the courts

However, there has been a marked change in the courts’ approach to such cases. Perhaps the key decision marking this change was the Court of Appeal’s decision in R (Greenwich Community Law Centre) (see Legal update, Court of Appeal upholds High Court decision concerning Greenwich decision to cut funding to law centre).  The Court of Appeal  was in no doubt that the local authority when taking a decision to cut funding to a law centre in its area had dealt with those protected characteristics that were affected by the decision to cut funding and had “due regard” to the implications of its decision. The concept of “due regard” to the PSED did not mean the court was required to determine whether the decision-maker had given appropriate weight to equality considerations. The Court of Appeal was satisfied that the full equality impact assessment undertaken by the local authority, together with minor changes to the approved commissioning principles, meant it was unnecessary to require the authority to do more to demonstrate its compliance with the PSED.

Following that decision, the majority of PSED decided cases (apart from a couple of exceptions) have been ones where the claimant’s challenge failed. The most recent was R (T) v Sheffield City Council, in which four mothers challenged the decision of Sheffield City Council (SCC) to stop paying subsidies to 20 nurseries. Their challenge was based on five grounds, including a breach of the PSED under section 149 of the EqA 2010. SCC defended its decision to axe the grant payments as a consequence of the government’s policy change on early years funding and a redistribution to fund free early years learning.

Although it was not mandatory, SCC pursued a formal EIA assessment process in relation to its proposals and prepared preliminary (and then very detailed) EIA reports for the Cabinet meeting taking the decision.  What is interesting is that the judge agreed with the thrust of SCC’s submissions that the claimants’ criticisms of its actions did not adequately take into account the broad picture but concentrated on too fine a level of detail of analysis.  Further, the judge was concerned that the claimants’ contention that the support SCC promised to mitigate the effect of its decision to stop paying the subsidies inadequately addressed the equality duty risked the process of analysis being “allowed to descend into an impermissible assessment of the merits of the decision and the respective weight that ought to be given to every material consideration”. 

Provided the court is satisfied that the local authority has rigorously considered its duty so that there is an appreciation of the potential impact of its decision on equality objectives and the desirability of promoting them, it is for the decision-maker, and not the courts, to decide how much weight should be given to the various factors informing the decision. SCC had undertaken a thorough and conscientious assessment process and therefore had all the necessary information to take the decision. Those members taking the decision were fully aware of why the grants had been paid into the nurseries and the potential consequences if the grants were terminated. The claimants’ challenge therefore failed.

Going forward

Although recent cases show that the courts have rejected PSED arguments (even where the quality of EIAs have been criticised as being poor) and are unsympathetic to the use of PSED arguments to bolster challenges, it is still important for a local authority to get its decision-making right.  In the cases where PSED challenges have succeeded, other flaws in the decision-making process have meant there was a PSED breach as well. For example, in Ali v London Borough of Newham (see Legal update, High Court holds that London Borough of Newham failed to follow national guidance on design of tactile paving), the court held that the local authority was required to:

  • Follow national guidance on the design and specification of tactile paving unless there was a good reason to depart from it.
  • Have “due regard” to its duties under the Disability Discrimination Act 1995 (now set out in the EqA 2010).

In R (South West Care Homes Ltd) v Devon County Council and another, the High Court quashed the local authority’s policy for setting the fee rates that it would use to assess whether to grant residential care at an applicant’s preferred choice of care home.  It did so on the basis that the policy did not comply with the PSED as the local authority had failed to ask itself what it could do to address the needs of elderly and disabled persons (see Legal update, County Council care home fees policy quashed for breach of equality duty (High Court)).

What the recent cases show is that local authorities have been considering equalities issues in relation to decisions that they are taking and, most importantly, are being seen to do so. To ensure that a local authority’s decision is not struck down as unlawful, the officer preparing the report to members must ensure that it:

  • Contains the relevant background information and papers to the proposals. If an EIA was undertaken, the body of the report must refer to the assessment. This is a useful tool to assist the decision-makers to assess and pay due regard to the PSED.
  • Includes details of the relevant considerations for the decision-makers to have in mind; if the PSED is engaged, the report must draw the duty to the attention of the decision-makers and include a proper assessment of the equality issues.
  • Sets out all the options that are available in connection with the decision and the reasons for rejecting them.

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