R (DAT) v West Berkshire Council [2016] EWHC 1876 (Admin) is a PSED challenge which succeeded. It arose out of a budget decision to cut funding to voluntary sector organisations who provide short breaks for disabled children.  The officer report to members stated that the PSED requires decision makers “to keep the welfare of service users and their families at the forefront of their mind, particularly the most disadvantaged” (“the formula”).  Elisabeth Laing J found that, despite the provision by officers to members of the necessary factual information, the Council failed to have “due regard” to the needs listed in Section 149 of the Equality Act 2010.  The problem was that, while members were given the text of Section 149, they were directed to the formula.  She said:

“45.    … 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, … 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. …
47. … A paraphrase of the statutory test which includes some, but not all, relevant matters is not enough. Express reference to the statutory test (or an accurate paraphrase or summary, as the case may be) ensures a focus on all the factors which Parliament … has prescribed.

The Judge was critical of paragraph 60 of the judgement of McCombe LJ in R (Bracking) v SoS for Work and Pensions (2013) EWCA Civ 1345 insofar as it may have suggested that public authorities must give equal weight to equality considerations and to other “pressing circumstances”.  She said, at paragraph 41:

“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 … 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.”

In R (Skelmersdale Limited Partnership) v West Lancashire BC [2016] EWHC 109 (Admin) Jay J summarised the case law as follows: (1) AIPI guarantees in substance the right of property; (2) AIPI comprises three distinct rules; (3) The first, of a general nature, lays down the principle of “peaceful enjoyment of property”; (4) The second covers “deprivation of possessions” and subjects it to certain conditions; (5) The third recognizes that States are entitled, amongst other things, to control the “use of property” in accordance with the “general interest”; (6) The second and third rules, which are concerned with particular instances of interferences with the right to peaceful enjoyment of property are to be construed in the light of the general principle laid down in the first rule; (7) In a deprivation of possessions case, the infringement of the AIPI right will be justified only in “exceptional circumstances”, in the absence of payment of compensation; (8) In a control of use case, the broad question is whether a “fair balance” has been struck between (i) the private interests of the proprietor and (ii) the general public interest; (9) In the event that a fair balance has not been struck without reference to it, the presence or absence of compensation is a relevant factor; (10) The State is allowed a “wide margin of appreciation” in the field of land development and town planning; (11) The issue of “proportionality” is not hard-edged, but requires a broad judgment of where the fair balance lies; (12) The Court will intervene only if the interference is deemed to be “manifestly disproportionate”; and (12) When assessing proportionality under AIPI, a measure is not rendered disproportionate merely by reason of there being a “less intrusive way” of achieving the same objective.

James Goudie QC

As is well known, the relevant law on disability discrimination is now found in the Equality Act 2010, which replaced provisions formerly contained in the Disability Discrimination Act 1995. The Equality Act gives effect to the United Kingdom’s EU obligations under Directive 2000/78/EC (“the Equality Directive”). The principle of equal treatment prohibits discrimination on certain prescribed grounds, such as race, sex and sexual orientation, and these include disability. The structure of the Act is that it defines the meaning of discrimination and then identifies the circumstances when it is unlawful. There are four forms of disability discrimination: direct discrimination (Section 13), indirect discrimination (Section 19), discrimination arising from disability (formerly called disability-related discrimination) (Section 15), and a failure to make reasonable adjustments (Section 20). The direct and indirect discrimination principles apply to all the prescribed characteristics, but the reasonable adjustments duty and the duty not to commit discrimination arising out of disability are unique to disability cases. They are a recognition of the fact that the difficulties faced by disabled workers are very different from those experienced by people subjected to other forms of discrimination. These two duties unique to discrimination therefore secure more favourable treatment and are closely interrelated.

Section 20 of the Act, the duty to make reasonable adjustments, which requires affirmative action in certain situations, was relied upon in Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265.  The effect of Section 21 is that a failure to comply with the Section 20 duty to make reasonable adjustments amounts to an unlawful act of discrimination.

From paragraph 22, Elias LJ addressed the relationship of Section 20 to other forms of disability discrimination. He drew attention to various matters, including that the definition of discrimination arising out of disability does not involve any comparison with a non-disabled person; it refers to unfavourable treatment, not less favourable treatment; and that it is perfectly possible for a single act of the employer, not amounting to direct discrimination, to constitute a breach of each of the other three forms.

Elias LJ, at paragraph 48, ruled that it was an error to assume that the ruling of the House of Lords in Lewisham LBC v Malcolm [2008] UKHL 43, (2008) 1 AC 1399, which was concerned with the nature of the appropriate comparison under the old concept of disability-related discrimination, is applicable to the obligation to make reasonable adjustments. That comparison is inapt in the case of the adjustment duty.

In R (Logan) v Havering LBC [2015] EWHC 3193 (Admin) Blake J considered a complaint by Mr Logan, a severely disabled resident in Havering, about the Council’s Council Tax Reduction Scheme for 2015/2016.  Mr Logan alleged that the Council’s Scheme was discriminatory on grounds of disability and age.

The Judge rejected Mr. Logan’s arguments that the Scheme was discriminatory, contrary to the Equality Act 2010, and in contravention of Article 14 of the European Convention on Human Rights read with Article 1 Protocol 1. The Court distinguished the case of Burnip v Birmingham City Council [2012] LGR 954 (bedroom tax case in the private sector), holding that that case did not mean that it was “always discriminatory to expect the disabled poor to meet ordinary living expenses out of benefits that are provided because they are disabled. Council tax liability is a general charge on living expenses in the same way as any other item of expenditure that the abled bodied and disabled poor both have to make out of their subsistence budgets”. It was not, in the Judge’s view, “a difference in treatment or an unlawful failure to treat people who are situated differently, to expect that a modest percentage of council tax support be absorbed in the subsistence budgets of the poor generally, even if the benefits forming that budget are provided because of eligibility through the disability gateway.” The Judge also found that the availability of a discretionary scheme to address exceptional hardship provided justification for any indirect difference in treatment. Mr. Logan had himself been a beneficiary of that discretionary scheme.

Blake J did find, however, that not all Members of the Council had paid proper regard to the PSED under Section 149 of the 2010 Act. The Equality Impact Assessment (EIA) which had been produced by Council officers, and which had been seen by the Council’s Cabinet, had not been provided directly to the full Council as part of their papers for the decision on the Scheme. The Judge held that the EIA “was adequate to enable members who read it to have due regard to the PSED, but there was insufficient evidence to indicate either that the decision makers had accessed the EIA … or had understood the importance of reading it in order to discharge their statutory obligation.” The Judge observed that it was not sufficient to assume that because Members could have accessed the EIA that they would have done so. “It might have been different if there was clear evidence that every decision taker had been told that they must access the [report to Cabinet] and the EIA to discharge their statutory responsibilities.”

For the purposes of Article 6 of the ECHR, (i) when is there a civil right? (ii) if there is such a right, what is an “independent and impartial tribunal? (iii) if the tribunal is not independent and impartial, what is judicial scrutiny of sufficient scope?

All these questions have been covered by the Strasbourg Court in its long awaited Judgment on 20 October 2015 in Fazia Ali v UK.  Overruling the Court of Appeal and the UK Supreme Court, Tomlinson and others v Birmingham City Council (2010) UKSC 8, (2010) PTSR 524, the ECtHR has made the important finding that Ms Ali did have a “civil right”, notwithstanding that the case concerned entitlement not to cash, but to a benefit in kind.  Her right to be provided by Birmingham City Council with accommodation as a homeless person under Section 193 of the Housing Act 1996 was ruled to be a “civil right”.  She was therefore entitled to a “fair hearing” before an “independent and impartial tribunal”.  The ECtHR also found in Ms Ali’s favour that the local authority reviewing officer was not such a tribunal.  The third question above therefore arose.  The ECtHR held that in the circumstances of Ms Ali’s particular case a Section 204 appeal to the County Court on judicial review principles meant that there was no breach of Article 6.

In R (RB) V Devon County Council, Judgment 19 October 2012, it was held that a change of provider of an Integrated Children’s Service (“ICS”) engaged the PSED at various stages of the procurement process, including the decision to retain the ICS under a single provider and the award of preferred bidder status, but not the possibility of future (post contract) changes in the provision of the ICS, until the detail of such changes was sufficiently well established. However, anything other than declaratory relief was refused, on account of urgency, the fact that the PSED had been addressed at the intention to award contract stage, lack of detriment to the claimant family, and quashing being detrimental to the children of Devon generally.