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.