THE PUBLIC SECTOR EQUALITY DUTY Joanne Clement - 11kbw

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d. Throughout the process the council was giving consideration to how to address the needs of the disabled. In that sense its decisions taken in relation to adult social care were decisions which were relevant to its performance of the s.49A duty. But that is not the same thing as doing what s.49A seeks to ensure: namely to consider the impact of a proposed decision and ask whether a decision with that potential impact would be consistent with the need to pay due regard to the principles of disability equality. e. Conspicuously absent from the material before Cabinet was any express statement that Cabinet must consider whether s.49A required it to take the course of ensuring further spending resources were allocated to Adult and Community Services, in particular because of the potential severity of the impact of the proposed move to “critical only.” f. There was a failure by the council on 1 March 2011 and Cabinet on 14 March 2011 to focus on the questions required to be asked and so the decisions of 1 and 14 March 2011 on the proposals for adult social care were unlawful. g. There was not in the material prepared for the meetings any assessment of the extent to which such mitigating factors as were mentioned would or would not reduce the potential severity of the proposed move to “critical only”. In the EIAs, if members had consulted them, neither the analysis nor the suggested action plans attempted to examine what the actual impact of the move to “critical only” would be or how it would be affected by mitigating measures. Had members appreciated the need to consider the right questions, they would not have had the wherewithal to answer it. 59. In R (Greenwich Community Law Centre) v Greenwich LBC [2011] EWHC 3463 (Admin), the Administrative Court (Cranston J) dismissed a challenge by a leading law centre to the decision by Greenwich Council to withdraw its funding of around £200,000 per year. The law centre provided services to vulnerable clients who fell within the protected groups. The Council's decision followed a tender process for funding for legal services, which resulted in awards to four of five previously funded organisations but not to Greenwich CLC. 60. The High Court held that where a tender process for the award of third sector funding had been designed with the statutory equality duties in mind, and was intended to result in the award of funding to the organisations submitting the tenders best suited to the Council's requirements, there was no obligation to conduct a further equalities Joanne Clement, 11KBW t. 020 7632 8500 e. Joanne.Clement@11kbw.com 20
assessment before making funding awards. The Council had conducted an equality impact assessment in March 2011 in advance of its decision not to award funding for legal advice services and instead to conduct a fresh commissioning round. It paid due regard in substance to its equalities duties under the Equality Act 2010 by remaining faithful to the focus on priority groups in the tendering exercise. There was no need for a further equality impact assessment with regard to the outcome since the logic of the tender process meant that performance of the duty was integral to the outcome. Selection of the winning tenders would inevitably pay due regard to the equalities objectives. No new or different equalities considerations arose. 61. This decision is currently on appeal to the Court of Appeal on these issues, together with a new point, which is that the Council’s decision to award funding to other agencies instead of the appellant had been flawed because there had been no express consideration of the needs of 5 of the 8 protected characteristics: gender reassignment; pregnancy; religion or belief; sex; and sexual orientation. F. Individual Decisions 62. The courts are wary of the artificially “tacked on” claim in respect of the PSED, particularly where a claim is brought on behalf of an individual for alleged breaches of substantive rights. Thus in R (MS) v Oldham MBC [2010] EWHC 802 (Admin), Langstaff J said, in the context of a local authority‟s assessment of a child‟s special needs (at [20]): “ ... I would deprecate any statement of principle which required a court in any case involving a disabled claimant seeking provision from a local authority to the effect that the local authority would have to minute and record in part of its paperwork the fact that it had regard to each or any of the six specific matters set out in section 49A. If it were to do so it would risk reducing to a mantra what ought to be a matter of central substance in the local authority’s behaviour. That does not mean that a court may not enquire into the matter, and where it looks at first blush as though the local authority may not have had regard to such matters the court would plainly be helped by such documentation as there is: but it does not require, in my view, another tick box to be ticked for the sake of it, nor for wording to be adopted purely in defence of potential but unfounded claims for review.” 63. The claim under the DDA did not add anything of substance to the claim as otherwise advance under community care legislation. 64. This approach has been endorsed by the Supreme Court in R (Mcdonald) v Kensington and Chelsea [2011] UKSC 33, where Lord Brown stated that the appellant’s argument based on the PSED was hopeless. Where a person is disabled and the public authority is discharging its functions under statutes which expressly direct their attention to the needs of disabled persons, it may be entirely superfluous Joanne Clement, 11KBW t. 020 7632 8500 e. Joanne.Clement@11kbw.com 21
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Page 3 and 4: Government [2009] PTSR 809; and R (
Page 5 and 6: a concluded decision” (R (BAPIO A
Page 7 and 8: carry out a full EIA for considerat
Page 9 and 10: the government is acting unlawfully
Page 11 and 12: (4) By parity of reasoning with Faw
Page 13 and 14: 36. It is absolutely critical in th
Page 15 and 16: esult, i.e. quashing the decision.
Page 17 and 18: (5) However, at paragraph 96, Elias
Page 19: in the consultation document includ

THE PUBLIC SECTOR EQUALITY DUTY Joanne Clement - 11kbw

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