R (Coleman) v Barnet London Borough Council [2012] EWHC 3725 (Admin)

Subjects: S.149 Equality Act 2010 – Duty to Have ‘Due Regard’ – Due Regard to Effect on Individuals

D gave planning permission for the construction of a school upon land that had been used for a garden centre. The garden centre was an important local amenity for local people with disabilities and the elderly. C was one of the disabled users and sought judicial review of the planning decision.

Facts

The C was disabled and used the garden centre as a recreational and educational hub. He wished to continue to use it. A previous grant of planning permission in respect of the same land had been successfully challenged on the grounds that D had failed to discharge its obligation under s.149 EA 2010. As a result, during the process of the grant that was the subject of this challenge, there had been extensive consultation and one of the main sections of the D's report was aimed specifically at discharging D's duties under the EA 2010.

Held

The Judge found that D had discharged its duty under s.149 EA 2010. The Judge emphasised that the duty imposed by s.149 was not a duty to achieve a result but rather to have regard to the need to achieve the goals set out in the statute. The duty encompassed the need to have due regard to the need to gather relevant information so that the public authority can properly take steps to take into account the disabled persons’ disabilities in the context of the function under consideration. The underlying objective of the duty is to ensure that the impact upon those with disabilities is brought into ‘the mix’ as a relevant factor when decisions are taken that may affect disabled people.

D was not required to go beyond the relevant categories of “protected characteristics” in s.4 of the 2010 Act, namely ”age” and ’’disability’’ and consider the impact upon people with different types of disability, such as physical, mental and learning disabilities, separately. The court held that it would be unduly onerous to do so and was far more than s.149 required. To discharge its duty D had to comprehend the entire range of disabilities represented by those affected by the decision and heed what was said in the representations made by them or on their behalf. It had then to bring that understanding into a conscious assessment of the likely consequence of the decision for people with the protected characteristics.

Comment

The most interesting part of this decision concerns the requirement to consider individual disabilities. A public body is required to consider how its decision will impact upon the full range of disabilities exhibited by those affected by its decision. However, although a public body is required to consider the impact on the entire range of disabilities this does not mean that it has to consider the impact upon each individual disabled person who is affected.