R (Williams & Ors) v Surrey County Council [2012] EWHC 867 (QB)

Subjects: Public Sector Equality Duty – s 149 Equality Act 2010 – Wednesbury unreasonableness

Cs claimed that D's decision to restructure its library services was taken without due regard to the public sector equality duty (“PSED”). The Administrative Court ruled that D's decision was unlawful and they had failed to have “due regard” to the PSED.

Facts

D was under pressure to reduce spending. It conducted a review of its library service and took the decision that the lowest scoring libraries would be subject to a Community Partnership model (”CPL”) approach and would become staffed by volunteers. A lengthy consultation was embarked upon which included holding meetings on the subject with Disability Empowerment Boards (DEBs). D had conducted a full EIA of its library services in March 2008 and separate EIAs on discrete areas thereafter. A Public Value Review Report in February 2011 included consideration of “Equalities impiications”. Cs argued that there was no EIA subsequent to February 2011 and D did not have regard to the equality issues identified of the need for training for volunteers. It was argued that these training needs were not addressed in the September report upon which the decision to proceed with the project was based. Ds submitted that no more needed to be said in the September report and that it had grappled with the need for training in the previous report.

Held

One legal issue in dispute was whether the test for whether D had had ”due regard” was a matter to be determined by the Court or whether it was a matter for D subject to challenge on Wednesbury grounds. The Court decided that the correct reading of the caselaw in this area sets out that at the first stage, the question of whether there has been “due regard” is for the Court. However, once there has been a determination of “due regard”, whether the decision then taken was lawful can only be negated if C establishes Wednesbury unreasonableness (para 20, 24).

C5 succeeded. D had failed to have “due regard” to the PSED. The failure to have regard to a relevant consideration, namely the provision of training of those who would staff the CPLs as volunteers also rendered the cabinet’s decision Wednesbury unreasonable. D had erred in law by concluding that no new equality impact issue had arising in the course of consultation after February 2011 and that when it had given “due regard” to issues in February 2011 that remained sufficient to satisfy the duty in September when considering their substantive decision to proceed with the CPLs.

Comment

The law on whether a public authority has given “due regard” to the PSED is well-established and is helpfully summarised in para 16 of the judgment of Mr Justice Wilkie.

It was clear from the judgment that what had swayed the court was the preliminary nature of the consultation in February 2011. The judge also criticised the “bland assertions that training would be required and monitored” (para 127) as falling substantially far short of demonstrating compliance with the duty. This should provide guidance to public authorities that they should fully consider the equality issues inherent in any proposal and make sure decisions are taken on up-to-date information.