Stuart Bracking & Ors v Secretary of State for Work and Pensions [2013] EWCA Civ 1345

The Appellants were users of “The Independent Living Fund” (“the ILF”).

This Court of Appeal judgment overturned the High Court’s dismissal of the Appellants’application for judicial review, concerning the decision of the Respondent (Minister for Disabled People) to close down the ILF.

This decision focused upon four claims by the Appellants:

a)     the Respondent, in making the decision, failed to discharge the public sector equality duty imposed under Section 149 of the Equality Act 2010 (“the PSED”);

b)     the consultation, which preceded the decision, was inadequate;

c)     the decision was based unlawfully upon the assumption that proposals in a Government White Paper (“Caring for the Future, Reforming Care and Support”) and draft Social Care Bill would pass into law; and

d)     the first instance judge, in dismissing such arguments, failed to give adequate reasons for his decision

The Court found that, regarding the adequacy of the consultation (claim (b)), the Appellants’ criticisms of the process were insufficient.

The first criticism was of the failure of the Respondent to reveal in the consultation that the anticipated costs of closure of the ILF were £39 million. It was, however, contended that there was no obligation to provide this information as it was solely relevant to matters of internal accounting. Also the costs were subject to changes, so they could not be fully predicted anyway. Importantly, the omission did not detract from the ability of consultees to explain how the closure of the ILF would impact on them, and the Minister would not have been assisted by any views that they may have expressed on that subject.

The next criticism was that the Minister had considered submissions from officials as to the possible postponement of closure of the ILF without consultation on that point. However, it was adjudged that this failure to consider the postponement did not detract from the consultation exercise itself, given that at the time of the consultation the postponement was not envisaged. It was only put forward following answers to the consultation, and there was no obligation to consult further upon those options thereafter.

Thirdly, the Appellants argued that the consultation was flawed because it failed to explain why the closure of the ILF was being proposed at all. This argument was however disproved by explanations given in section 4 of the consultation document and the Ministerial foreword. This was justified by the contention that “[t]he Government wished to achieve an integrated statutory care system and (as it saw it) to avoid duplication of function and unnecessary bureaucracy”. For similar reasons, this Court also rejected the criticism that the Respondent’s ultimate decision was made in part upon the basis that the Department of Health White Paper would be implemented (claim (c)):

“There is much criticism in our society of failures, real or imagined, to achieve “joined up government”. It would have been absurd for this Minister not to work upon the basis of the Government’s overall policy in the same field. No doubt the Minister could have considered whether further consultation would be appropriate had the White Paper proposals not been implemented.”

The remaining claim alleged that the Respondent had failed to discharge the PSED (claim (a)). When discussing whether or not this duty had been conformed with, the Court considered the following six principles identified by Aikens LJ in R (Brown) v SS Work and Pensions.

i) The decision-maker must be made aware of the duty to have due regard to the identified goals at the time of the decision under consideration.

ii) Subsequent attempts to justify a decision as being consistent with the duty when due regard was not had at the time, are not enough.

iii) The duty must be exercised in substance and with rigour, albeit the terms of the statute do not have to be expressly referred to. It is not a box-ticking exercise.

iv) The duty is non-delegable.

v) It is a continuing one.

vi) It is best practice to keep an adequate record showing that the equality duties have been considered conscientiously.

 

The judge at first instance in the Administrative Court had found that this duty had been adequately discharged for the following reasons:

i) The Minister was personally engaged with the process and would not agree the policy until she had sought and obtained some assurances from the Department of Health and others that a Code of Guidance would be introduced to address problems in transition from ILF funding to local authority statutory criteria.

ii) There was a rigorous process of analysing the response to the consultation and weighing the submissions made on behalf of the Local Government Association on one end of the spectrum and individual users fearful of the loss of their funding package on the other.

iii) There was both a draft Equality Impact Assessment dated 31 October 2012 and a final one published with the decision. Both recognised the potential loss to individual users of parts of their existing funding package as a result of the changes made. It was perhaps these highlighted concerns that led the Minister to engage actively in seeking assurances on transitional measures to ease the burden on users. There was in addition an interim analysis of the consultation responses and an economic impact assessment.

iv) In addition to the documents noted at sub-paragraph (iii) above, Mr Given produced at least three briefings for the benefit of the Minister on 31 October 2012, 12 November 2012, and 16 November 2012, each addressing in different ways the concerns of users, local authorities and the Minister herself as to the impact of closure on certain existing users.

v) There were significant other factors in favour of reform such as administrative simplicity, enabling decisions to be taken at the local level by the body with statutory responsibility, the lack of economic sustainability of the ILF “top-up” model in the current economic climate, and the concern about fairness…(the legitimate concern as to the inequality of treatment between those with similar needs as people with disabilities but only some of whom were users of the ILF, depending on the date of application).

vi) The Minister would be well placed to know that the option of extending the ILF to everyone at current levels was not realistic in the economic climate; indeed it was lack of economic sustainability that had led to the closure of the Fund for new applicants in 2010.

 

However, the Court of Appeal’s judgment ultimately concluded that too much of the Respondent’s case on compliance depended upon an over-reliance upon inferences. There was therefore not enough evidence to demonstrate that a focussed regard was being directed towards the potentially grave impact upon individuals in this group of disabled persons, within the context of a consideration of the statutory requirements for disabled people as a whole. It was apparent that what was put before the Minister did not sufficiently show that independent living for a large number of people was as a matter of fact being seriously threatened by the closure proposal. The appeal was therefore allowed.  

 

The judgment as to the appropriate remedy, proceeded on the basis that a decision reached without due regard to the PSED is an unlawful decision, and subject to any overarching discretionary features, that the decision should therefore be quashed.

Kitchin LJ inferred that the Minister had not properly appreciated the impact of the proposals on the substantial group of disabled persons currently benefiting from ILF funding. McCombe LJ referred to a number of documents presented to the Minister which showed that she was informed of concerns that ILF users would face reductions or alterations in their care packages and that their ability to lead full and independent lives would be undermined. However, the Minister was not given adequate information to enable her properly to assess the practical effect of the proposals on the particular needs of these persons and their ability to live independently, which was an essential foundation for the discharge by the Minister of the PSED.

Elias LJ suggested that neither the ‘equality impact assessment’ (‘EIA’), nor the document setting out the response to the consultation, had identified in sufficiently unambiguous terms the inevitable and considerable adverse effect which the closure of the fund would have had. There was no evidence that she directed her mind to the need to advance equality of opportunity. Nor was there any evidence that she considered the proposals having due regard to the need to minimise the particular disadvantages from which ILF users and other disabled persons suffer, or encourage such persons to live independently and to participate in public life and other activities.

A vague awareness that she owed legal duties to the disabled did not suffice; nor did simply alerting her to the obligation to have regard to the matters identified in the EIA and the general ‘Impact Assessment’. As Elias LJ found, “if the court were to accede to [that] submission, it would undermine the important role which this duty should play in governmental decision-making and would conflict with the jurisprudence summarised by McCombe LJ”.

 

Comment

“The PSED is being used increasingly in England as a means of challenging decisions by public authorities on procedural grounds ie on the grounds that a decision has been reached without following the statutory requirements as prescribed by s149 of the 2010 Act. There is a substantial body of caselaw built up in England and Wales as a result. The same cannot be said for Scotland, where, to date there has been one reported case where the PSED has been raised[b3] .” (Lorna A Drummond QC)

“There can be no doubt that the PSED has given rise to a wide range of cases (against both central and local government decision-makers). What is particularly significant is that many of the challenges have been successful. The English Courts have upheld complaints that the PSED has not been complied with over a vast range of subject-matter:

·          immigration decisions (change in immigration detention policy without an equality impact assessment: R (HA) Nigeria v Secretary of State for the Home Department [2012] EWHC 979 (Admin);

·          prison cases (failure of due regard in formulating service level agreement for management of foreign national prisoners: R (EHRC) v Secretary of State for Justice [2010] EWHC 147 (Admin));

·          planning cases (quashing planning permission in area predominantly occupied by black and ethnic minority communities: R (Harris v Haringey London Borough Council [2011] PTSR 931);

·          library closure cases where no adequate EIA: (R (Green) v Gloucester County Council [2011] EWHC 2687);

·          decision-making by schools where there was held to have been a failure to consider racial equality issues in relation to the school’s refusal to allow a Sikh pupil to wear a Kara: (R (Watkins-Singh) v Aberdare Girls High School Governors [2008] EWHC 1865;

·          and public procurement cases where there was held to be a breach when appointing a preferred bidder for a contract to provide integrated care and health services for children (R (on the application of RB) v Devon CC [2013] Eq. L.R. 113).

Whilst it may be that in some of these cases the decision makers ultimately reached the same decision, following compliance with the PSED, the cases have ensured that each of the authorities have had due regard to the specified needs before doing so.” (Lorna A Drummond QC)

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