R (Rajput and Shamji) v London Borough of Waltham Forest; R (Tiller) v East Sussex County Council [2011] EWCA Civ 1577

Subjects: Disability Equality Duty – s 49A Disability Discrimination Act 1995

Facts

In the first appeal, both Cs were disabled and sought judicial review of a decision by D to close the Crownfield Road day centre in Stratford whilst providing what they saw as an inadequate alternative. An Equality Impact Assessment had been completed. Cs contended that D had failed to take into account specific potential disadvantages to disabled persons and had made the unwarranted assumption that it could proceed and mitigate any negative effects on a case-by-case basis. In the second appeal, C was a tenant in a sheltered housing site owned by Lewes District Council, the majority of the funding for which was provided by East Sussex County Council. In October 2009 a decision was taken to discontinue 24/7 warden service at the sheltered home and replace it with an on-site manager during working hours and an alarm-operated ”telecare” system out-of- hours. C sought judicial review inter alia on the basis that the decision was unlawful for failing to take in account the potential effect on tenants, particularly disabled tenants contrary to D's disability equality duty.

Held

The Court of Appeal (Lord Justice Rimer) at paragraphs 29 — 30 of their judgment summarised the principles set out in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) governing the application and implementation in practice of the public sector equality duty.

In the Tiller appeal, the Court of Appeal held that although the report the decision maker relied upon and his reasons for accepting its recommendations could have been fuller, and although it would have been good practice to refer to the duty imposed by 5 49A DDA 1995 explicitly and to explain how the decision maker had discharged that duty the decision maker had not actually failed to comply with the duty. The decision maker had been aware of D's obligations to have “due regard” and his reasons for the decision show that he was satisfied that the alternative proposed arrangements would provide the tenants with sufficient support and care.

The issues were very narrow on the appeal in Rajput. In fact, Cs had had their argument rejected summarily below by Calvert-Smith J, who had simultaneously discharged D from an undertaking that they should give 14 days notice to C5’ solicitor of any proposed physical change or future use of the Crownfield centre. By the date of the hearing, the site had already been converted to a Resource Centre and had been fully operational since July 2011, rendering the question under appeal academic. The Court reminded Cs that judicial review was a discretionary remedy and in deciding whether to grant permission the court was entitled to look at the case overall. They would take account of any lack of urgency by the C5 in pursuing their case and any detriment to good administration caused by their failure to do so. On the facts, the undue and unexplained delay in responding to the new situation resulting from the discharge of the undertaking undoubtedly had been prejudicial to good administration and justified the Court of Appeal in confirming the refusal of permission.

Comment

The judgment from the Court of Appeal provides a useful summary of the principles governing the disability equality duty under the old law which are equally applicable to the new public sector equality duty under s 149 of the EA 2010. It also offers a reminder that judicial review is a discretionary remedy and claimants who do not pursue their claim quickly and expeditiously are unlikely to be successful.