R (D & S) v Manchester City Council [2012] EWHC 17 (Admin)

Subjects: Disability Equality Duty – s 49A Disability Discrimination Act 1995 – Public Sector Equality Duty – s 149 Equality Act 2010

C5 were recipients of social care services from D. They sought to challenge D's budget-setting and consultation processes as it affected those services. Cs argued that D had failed to comply with their public sector equality duties under 5 49A DDA 1995 and/or 5 149 EA 2010. Their applications forjudicial review were dismissed.

Facts

As a result of the Government spending review D decided to make cuts to its adult social care budget. Cs sought to challenge D's budget-setting and consultation process. Cs argued that D's decision to reduce its budget was unlawful because the decision was taken without ”due regard” to the disability equality duty in 5 49A DDA 1995. In addition, they sought permission to rely on the single equality duty in s 149 EA 2010, in relation to the alleged failure to have any or any proper regard to the likely impact of proposals on elderly and disabled persons such as Cs during the consultation process. EIAs were not completed before the budget was approved but would be completed before the relevant element of the budget was implemented.

Held

Mr Justice Ryder held that the substantive obligation is to have ”due regard” to the relevant needs as “is appropriate in all the circumstances”. There are two inter-related aspects to that obligation: (a) how far to investigate what impact (if any) the decision to be made may have on the needs to which regard must be had and (b) what weight to give to any anticipated impact on those needs relative to other material considerations. It is not the court's function to decide itself what was appropriate in all the circumstances. It is a matter of discretion for the authority to determine what investigation may be required to obtain the necessary information, to have regard to the information, and to determine what weight to give to it. The court will judge whether what D did, or did not do, was something no reasonable authority could have done in the circumstances. This involved a consideration on the one hand of the importance of the context to the elderly and disabled and on the other hand any countervailing factors relevant to the performance of the public function. Ultimately how much weight is to be given to each factor was a matter for D not the court. There was no requirement to refer explicitly to the duty. The duty to have ”due regard” does not involve the taking of any prescribed step nor the achievement of a result. The C5 failed on the facts to establish that D did not pay “due regard” to the duties. D had put in place a strategic response and interim protections for those affected. There was no statutory duty to carry out a formal EIA. D had taken the decision to consult with the overt purpose of considering the impact of the budget proposal on the disabled and elderly, and provided respondents to the consultation with all the information available to D.

Comment

This is a rather different result from the other cases reported in the Update. This case can be used to suggest that local authorities should be given a margin of discretion when exercising their public duties. Arguably this case requires applicants to show that the decision was one which no reasonable authority would be expected to take.