July 25th, 2016 by James Goudie KC

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.

  1. 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. …
  2. … 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.”

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