R (Green) v Glos. County Council; R (Rowe and Hird) v Somerset County Council [2011] EWHC 2687 (Admin); [2011] EWHC 3215 (Admin)

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

Cs, who were residents of the D local authorities, sought judicial review of decisions to withdraw funding from their local public libraries on the grounds that Ds had failed to comply with their public sector equality duties.

Facts

Cs were residents of Somerset and Gloucestershire who brought judicial review actions against decisions to withdraw funding from a number of static public libraries. Ms Hird had a reading disability and used her library for books, especially audio books, and internet access. Cs claimed inter alia that the decisions were taken without “due regard” to the “needs” set out 5 49A(1) Disability Discrimination Act 1995 and s 149 Equality Act 2010. EIAs had been carried out by both Ds.

Held

His Honour Judge McKenna held that the decisions of both Ds had been unlawful. The real question is whether there was a conscious directing of the mind by the decision makers to their obligations under the legislation and in particular to the need to exercise the duty to have ”due regard” in substance, with rigour and based on sufficient information, appropriately analysed. The existence of EIAs is not an invariable necessity for conformity with the duties nor is it determinative evidence that “due regard” regard has been given. Ds were not required, in having “due regard” to those “needs” to achieve particular outcomes or devise policies to achieve outcomes and having “due regard” permitted a degree of latitude in how an authority approaches its consideration for various needs. It was also not determinative that the decision makers did not make specific reference to the statutory duties. It is substance and not form which is the benchmark.

The court rejected the argument that the decision makers were unaware of their duties because the documentation before them did not refer to the statutory language; there was no obligation to refer to it, although it would have been better practice. The court also rejected the argument that the duty was not complied with because the analysis of the effects on the protected groups took place after the formal decisions had been made rather than at a formative stage. The stage at which the duty is to be performed is not at the early stage when officers are contemplating policy options but as part of the decision making process. On the evidence no such ”due regard” was had in substance. Both Ds failed to comply with their obligations. They should have undertaken a sufficiently thorough information gathering exercise and properly analysed that information.

Comment

The judgment stressed the importance of complying with the public sector equality duties in substance rather than merely in form. Any EIA which a local authority undertakes should be carefully directed to showing that “due regard” has been given to all the statutory ”needs”. In addition, decision makers should show that they have consciously directed their minds to the ”needs” under the legislation. It would be good practice for the public sector equality duties to be explicitly brought to the attention of decision makers in any documentation, such as EIAs, before them.