THE PUBLIC SECTOR EQUALITY DUTY Joanne Clement - 11kbw

on members of protected groups. Unsurprisingly Blake J held that the first decision
was unlawful as the equality duties had not been complied with as there was no
evidence that each of the decision-makers were aware of the duty and how it was
engaged [32]-[33].
52. When the decision was re-taken with the benefit of the EIA, Blake J found that the
duties had still not been properly discharged as the EIA was defective, having
focused upon the advantages to be derived from a new policy rather than the degree
of disadvantage to existing users of terminating funding arrangements until new
arrangements could be put in place [35(1)]. He also found that the EIA had not been
based on adequate consultation and consultation was particularly important where
the council relied on a user survey which did not provide the relevant information
[35(2)-(3)]. The expectation of consultation was also enhanced by communications
suggesting that service users would be involved in commissioning [35(6)]. Blake J
also held that the statutory equality duties require due regard to be had to the
statutory need, not simply to the EIA, and decision-makers need to have due regard
to all the evidence of prejudice and what might reasonably be done to mitigate it,
even if that material is not in the EIA [35(7)]. It was “striking” that the case for
continuing the existing service, at least in some areas where no alternatives existed,
was never put in the reports before members or the decisions [36]. The Judge further
pointed out that the fact that it is for a public authority to determine the weight to
attach to countervailing factors can only be of assistance to a defendant where they
have complied with the duty to have due regard to the statutory needs (see [37]).
53. Blake J provided something of a warning to local authorities hoping to rely on the
inherent difficulty of the decisions facing them [46]:
“…Even where the context of decision making is financial resources in a
tight budget, that does not excuse compliance with the PSEDs and indeed
there is much to be said for the proposition that even in the straightened
times the need for clear, well-informed decision making when assessing
the impacts on less advantaged members of society is as great, if not
greater. In general terms I consider the advice recently issued in nonstatutory
guidance by the Equality and Human Rights Commission ("Using
the equality duties to make fair financial decisions") to be of assistance to
decision makers such as this defendant in the no doubt very difficult
decisions that have to be taken in this field…”
54. The second Birmingham case is R (W) v Birmingham City Council [2011] EWHC
1147 (Admin), (2011) 120 BMLR 134. In a voluminous 100 page judgment Walker J
granted judicial review of the council’s decision to alter its eligibility threshold for adult
social care from “substantial” to “critical” (as assessed using the FACS guidance).
55. In December 2010 the council had issued a consultation document on the future of
adult social services. The consultation period was to run until 2 March 2011. Option 2
Joanne Clement, 11KBW
t. 020 7632 8500 e. Joanne.Clement@11kbw.com
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