Council failed to Give “Due Regard” to Equality Duties in Defunding a Community Service

Rahman, R (on the application of) v Birmingham City Council [2011] EWHC 944 (Admin) (31 March 2011) Summary

The High Court of England and Wales has held that the decision of a local council to terminate funding to a number of community advice centres was defective, because the council failed to give due regard to its equality duties.

Facts

Birmingham City Council (‘Council’) funded a number of Legal Entitlement Advice Services (LEAS) pursuant to its discretionary powers under the Local Government Act 1972. On 29 November 2010, the Council decided to terminate funding of the LEAS pending new funding arrangements coming into force in 2011.

An application for judicial review of this decision was made by some of the users of three of the LEAS – the St James Advice Centre, the Chinese Community Centre and the Birmingham Tribunal Unit. These LEAS primarily service clients such as the claimants, who are disadvantaged because of a combination of age, ethnic origin, language skills and disability.

The applicants claimed that the decision was unlawful for three reasons:

• It was made without consulting the LEAS affected or their users in circumstances where there was an expectation of consultation.
• It was taken in breach of the Public Sector Equality Duties (‘PSED’).
• The decision took into account irrelevant considerations and/or failed to take into account relevant considerations.

The High Court focussed on the second reason, being that the decision breached the PSED. The PSED are found in the Race Relations Act 1976, the Sex Discrimination Act 1975 and the Disability Discrimination Act 1995. The PSED require public authorities to give due regard to the need to (i) eliminate unlawful discrimination and harassment in the respective fields of race, sex and disability; (ii) promote equality of opportunity between those with a protected characteristic and others; (iii) promote good race relations; and (iv) take steps to take account of disabled people’s disabilities even where that involves treating disabled people more favourably than others, and to promote positive attitudes towards disabled people and to encourage participation by them in public life.

Decision

Justice Blake accepted that the Council does not have a duty to fund the LEAS, but held that the Council is obliged to comply with the PSEDs. His Honour found that the decision to terminate funding of the LEAS “failed to have due regard to the PSED since it was not in the minds of all the decision makers taking the decision”. There was ‘no evidence to suggest that each of the decision makers were aware of the duty and how it was engaged in these decisions at the time they took the decision.’

A subsequent decision, which was made with reference to an Equality Impact Needs Assessment (‘EINA’), was also defective because there were substantial defects in the EINA, and because due regard must be had to the PSED, not merely to the EINA.

Justice Blake criticised the lack of consultation undertaken by the Council, and its approach of formulating “policy based evidence rather than evidence based policy”.

His Honour further held that the duty to have due regard to the PSED “requires consideration of whether there are ways of mitigating adverse impact and alternative ways of achieving the same goals”.

Justice Blake concluded that declaratory relief should be granted to ensure that the Council would continue to fund the three services that were the subject of this application until a lawful funding decision were made. This would cost the Council £25,000 per month and would have significant budgetary implications. Nonetheless, his Honour found that:

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.

Relevance to the Victorian Charter

The duty of public authority decision makers to have due regard to the Public Sector Equality Duties when reaching conclusions is similar to the obligation of Victorian public authorities to give “proper consideration” to relevant human rights when making decisions, as required by s 38(1) of the Charter. The s 38(1) “proper consideration obligation” is in addition to the substantive obligation of public authorities to ensure that the decision itself, the outcome, does not violate human rights.

In Castles v Secretary to the Department of Justice [2010] VSC 310, Emerton J held that the consideration obligation requires public officials to seriously turn their minds to the human rights that are impacted by their decisions, but they need not undertake “a sophisticated legal exercise”. The principles outlined by Justice Blake in respect of the obligation to give “due regard” to the PSEDs impose a more onerous obligation of public authorities, and may provide further guidance to future interpretations of the consideration obligation.

The decision is available at http://www.bailii.org/ew/cases/EWHC/Admin/2011/944.html.

Melanie Schleiger is a Senior Lawyer in the Civil Justice Program, Victoria Legal Aid, and a Board member of the Human Rights Law Centre