R (JM and MT) v Isle of White Council  EWHC 2911
Subjects: Disability Discrimination – Public Sector Equality Duty – Challenge to Restriction of Social Care due to budgetary constraints
Cs were two severely disabled adults receiving community care services from D. D decided to reduce its provision of community care. Cs sought judicial review and argued that D had acted unlawfully by (a) failing to comply with the Public Sector Equality Duty (PSED) and (b) failing to comply with the statutory guidance on social care.
The two Cs in this case required significant, long term, community care. In the face of financial difficulties D proposed changing the eligibility criteria for those receiving community care. D proposed to raise the eligibility threshold and to only provide full funding to those persons whose needs were assessed as “criticial”. D held a cabinet meeting and recommended that council officers undertake the necessary consultation and Equality Impact Assessments (EIA) on the adult social care proposals and this recommendation was adopted by the full Council. The cabinet and the full Council then met again and considered a report setting out the statutory framework of the PSED, a report on the results of the consultation, and the EIA. The Council approved the change in the eligibility criteria.
Even though the eligibility of the Cs had not been assessed under the new scheme, the High Court held that D had failed to have due regard to the PSED. The High Court reviewed the authorities on the meaning of “due regard” and its judgment provides a helpful overview of the present state of the law. In summary: D had to have due regard to the six needs identified in s.49A DDA 1995 (s.149 EA 2010); “due” regard meant the regard that was appropriate in all the circumstances; the test was a test of the substance of the matter, not of mere form or box ticking; the duty had to be performed with vigour and an open mind; due regard had to be paid before and at the time that the function was exercised; the question was not merely whether no regard had been had to the duty or whether the decision was Wednesbury unreasonable. The High Court also emphasised that where the exercise of the function in question affected a large number of people then “the due regard necessary is very high”. However, D did not have to make express reference to the PSED, although it was good practice to do so. The High Court concluded that the consultation report provided to D was inadequate since it was based on a consultation that did not provide sufficient detail to enable those consulted to give intelligent consideration and response to the proposals. The EIA was similarly flawed since it did not: (a) contain evidence based information about the specific impact on disabled people; (b) explain the nature of the “substantial” needs that would be excluded from funding by the revised eligibility criteria; (c) explain what the detriment would be to disabled people; (d) state how many disabled people would be detrimentally affected; and (e) give suggestions for mitigating the effects of the proposals. This meant that the Council had insufficient/defective information when purporting to discharge its PSED.
This case provides a good overview not only of the correct approach to the PSED but also of the statutory duties imposed on local authorities in respect of the care of disabled persons under the National Health Service and Community Care Act 1990.