R (on the application of (1) Juliana Boyejo (2) Roger Towler (3) Beryl Rush (4) Joseph Saunders (5) Jean Kemp) v Barnet London Borough Council : R (on the application of Ronald Smith) v Portsmouth City Council [2009] EWHC 3261 (Admin)

The applicants in this joined application for judicial review sought clarification of the extent of the public sector duty as set out in s.49A of the Disability Discrimination Act 1995 [‘the DDA’]. Both cases involved the decision by the local authorities to remove resident wardens from sheltered housing schemes. When reaching the decision neither authority explicitly stated that they had considered their responsibilities as set out in s.49A of the DDA. However the Court found that the failure to do so either within the decision or the reports that had been used to inform that decision was not determinative of whether the authorities had performed their duties under the DDA. Instead the Court focused on the steps actually taken by both authorities and whether these did satisfy the full requirements of s.49 of the DDA. Under s.49A of the DDA a local authority, when carrying out its functions, must have due regard to the need to eliminate unlawful disability discrimination and harassment and promote equality of opportunity between disabled persons and other persons.

Both authorities were able to demonstrate that they had each complied with the duty to publish Disability Equality Schemes as required by Disability Discrimination (Public Authorities)(Statutory Duties) Regulations 2005. The Claimants sought to challenge the decisions made on the basis that they were in breach of the obligations as set out in s.49A(1) of the DDA, most importantly the duty under s.49A(1) d, to take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons, and s.49A(1)f to encourage participation by disabled persons in public life. Further the Claimants argued the authorities were in breach of their own Disability Equality Schemes because they had failed to properly involve disabled persons and those representing their interests in decision making. Finally they argued that this was in breach of ‘The duty to Promote Equality: Statutory Code of Practice’ and that these breaches rendered the conclusions of their equality impact assessments Wednesbury unreasonable undermining the lawfulness of the final decisions reached.

Barnet adduced evidence that they had canvassed opinion from their sheltered housing residents, service providers and 23 groups representing disabled people. This included setting out the three options available. The consultation documents submitted had made reference to the DDA and asked for information about the individual’s disability and how they felt that the proposed changes might likely affect them. Their equality impact assessment concluded that all equality strands would be affected, but that the preferred option (to replace live in wardens with non-residential support services) would not have an adverse impact on disability groups and would likely ensure services were more readily available to potential service users from other minority groups. Following this assessment a report was prepared for the relevant decision makers that proposed four options, including keeping the current provisions unchanged.
Portsmouth, who also sought to argue that they had compiled in full with the obligations set out in the DDA and related regulations, had made the decision to remove night-time residential staff from some of its sheltered housing schemes and replace them with a mobile night team. It was able to demonstrate that it had conducted a survey of some of the residents. Following this the authority notified those affected by letter dated 07/07/09 of the plan to implement the new service and invited them to group meetings to discuss concerns. These meeting took place between the 13-16/07/09 with the final decision being made by the Housing Executive on the 30/07/09. Their impact assessment report found that the change in service would be radical, but that specific needs would be identified and catered for and as such a full impact assessment was not necessary.
The Court criticised the approach taken by both authorities for not having informed the relevant decision makers of their duty as set out in s.49A of the DDA. The general statements regarding disability and equality contained within the reports were insufficient to demonstrate the “substantial rigorous and open-minded approach” to the duty that the Court considered the DDA required. Similarly the possibility that the decision makers may have had a general awareness of the duty under the DDA did not suffice. Whilst the residents had been consulted, those with disabilities were not considered separately and as such it was not possible for either authority to demonstrate that they had complied with the DDA and in particular, s.49A(1) d and f in that they had not taken steps to account for disability or actively encouraged those persons affected by disability to participate in public life. The failure to comply with s.49A(1)d was in the words of the judge “alone … sufficient to vitiate each of the decisions”.

The Court agreed that the respective Disability Equality Schemes had raised legitimate expectations that those affected by disability would be consulted about decisions affecting them. In both cases the duty to consult had therefore arisen and whilst the consultation exercise carried out by Barnet was in line with the obligations set out within its own scheme, Portsmouth fell far short of expectations. Given the Court’s earlier finding that the authorities had failed to demonstrate the “substantial rigorous and open-minded approach” to the duty, it confirmed that both authorities had not complied with the requirements of their own schemes.
Finally the Court found the conclusions of Portsmouth’s impact assessment report, that the proposed changes did not and could not have an adverse impact on members of equality groups, were Wednesbury unreasonable given that it also identified within the same report that the change in service would be radical, and that it would likely have an impact on the peace of mind of the residents. He was critical of Barnet’s impact assessment for only dealing with whether there could be an adverse impact, not with whether there could be a different impact. He found Barnet’s assessment was also Wednesbury unreasonable given that its conclusion, that there would be no adverse impact, appeared to contradict the risks and possible impacts identified in various reports. The judge advised that a decision as whether to carry out a full impact assessment should not be based purely on the number of people affected, but should also consider the degree of impact on those actually affected.
The judge concluded that the failure of both authorities in respect of their duties was sufficiently serious for the decisions to be quashed and the matter reconsidered.

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