New cases on consultation duties and the Public Sector Equality Duty
The chain of recent judicial reviews that have seen key decisions of public bodies declared unlawful by reason of a failure to meet the public sector equality duty (PSED) under s.149 of the Equality Act 2010 or a breach of a duty to consult has continued in two recent Court of Appeal cases heard in November. These cases are yet another reminder of the importance of ensuring that careful thought is given to the need to engage with relevant individuals and that the aims of the PSED are achieved at the earliest possible stage in a decision-making process.
Stuart Bracking and others v Secretary of State for Work and Pensions  EWCA Civ 1345
The ILF is a non-departmental government body which operates an independent discretionary trust, funded by the Department for Work and Pensions (DWP). It was set up in 1988 and operates in partnership with local authorities to plan and provide joint care packages of services and direct payments to assist people with disabilities to lead independent lives in the community.
In December 2010 a Ministerial Statement was issued indicating that the existing arrangements for the fund were financially unsustainable and that a consultation would be conducted in order to develop a new, workable model. The consultation on the future of the ILF was launched in July 2012. It posed five questions for responders and confirmed that an Equality Impact Assessment (EIA) would not be published until the response to the consultation had been published, on the basis that until then it would be premature to do so where the proposals had not been fully developed.
The claim was issued in October 2012, at that stage challenging the lawfulness of the consultation process itself.
On 18 December 2012, the Minister issued a statement announcing that the ILF would be closed on 31 March 2015 and a month later the Appellants presented amended grounds of claim challenging the decision (in addition to the consultation process itself) on the basis that the EIA and the other materials presented to the Minister were not an adequate base from which she could discharge the PSED. The final version of the EIA had been presented to the Minister in mid-November 2012 and concluded that while there was a potential negative impact on ILF service users, whether there would be any actual impact and how great that impact would be would be dependent on individual circumstances. The EIA highlighted the potential positive impact for some service users as a result of improved service or level of funding from the relevant local authority. It also highlighted the Government's belief that any negative impacts were justified by the policy aims of providing greater equity and fairness in the social care system and delivering funding at a local level.
The court at first instance held against the Appellants that the DWP had carried out an adequate consultation and had not breached the PSED.
The Court of Appeal allowed the appeal and ruled unanimously that the Secretary of State had failed to comply with section 149 of the Equality Act 2010 and had not discharged the PSED.
The Court decided that what was put before the Minister did not give her an "adequate flavour" of the responses received from the consultation indicating that independent living of many may be put at risk by the closure of the fund. There was therefore a failure to have "due regard" to the specific requirements under the 2010 Act and the decision was unlawful on that basis.
The Judge noted that "the 2010 Act imposes a heavy burden upon public authorities in discharging the PSED" and that "it seems to have been the intention of Parliament that these considerations of equality and opportunity are now to be placed at the centre of formulation of policy by all public authorities".
However, when it came to the challenge to the consultation process the Court upheld the decision of the lower court that a lawful process had been followed. The key messages from the judgment in respect of consultation are set out below.
Firstly, it was held that the omission in the consultation of the costs of closure (the consultation document had not revealed that the closure of the ILF would cost some £39m) did not detract from the ability of the consultees to explain how the closure would impact on them. There was no obligation to include such information and the Minister in this way was fully entitled to conclude that she would not be assisted by consultees' views on the cost of closure.
Secondly, the criticism of the DWP's failure to consult upon the possibility of postponing the closure of the ILF beyond 2015 was not accepted. Postponement was not envisaged at the time of the consultation and the possibility of postponement came about only as a reaction to the responses received from the consultation. At that point, following concerns raised by consultees about the practical impact of the closure, officials advised the Minister on whether a postponement might be desirable or practical, but the Court found that there was no obligation to consult further on those options after the consultation had closed.
Thirdly, the reasons given for the closure of the fund, though succinct, were adequate. Further, the consultation paper was to be read in light of the wider reforms of the care system proposed in the Government's White Paper "Caring for our future: reforming care and support" issued on the same day.
Fourthly, the Court rejected the criticism that the Minister's decision was made, in part, on the basis that the Department of Health's White Paper would be implemented. The Minister was entitled to work upon the basis of the Government's overall policy in the same field.
This judicial review was brought by a 22 year old youth service user, a 'qualifying young person' for the purposes of section 507B of the Education Act 1996.
Around the end of 2010, the Council engaged in a comprehensive assessment of the services it provides to young people and how they might be provided in the future. Around autumn of 2011, the Council started to undertake a consultation exercise dealing with its proposals for youth services and other aspects of its contemplated budget cuts (including, in particular, significant cuts to the funding for youth services). This included an article in a newspaper and a magazine, the draft financial plan being published on the Council's website for comment and meetings with representatives of nine youth clubs in the area.
In November 2011, the full Council considered a motion to endorse the financial plan as a policy document. The financial plan had been sent to all members five days before, along with a four-page summary of the EIA appended to the plan. The financial plan was endorsed.
A further Council meeting was called for 21 February 2012 at which amendments were proposed to the plan, including an increase in the budget for children's and youth services (which was defeated). At this meeting the members were reminded that they had received the relevant papers previously and that the EIA was available on the Council's website. The financial plan was approved.
The Claimant criticised the Council's consultation process and the decision to reduce the funding itself. Following a decision at first instance that the Council had complied with all of its relevant duties, he appealed the judgment on the basis that the Council had failed to comply with its obligations under section 507B of the Education Act 1996 or its PSED under section 149 of the Equality Act 2010.
On 6 November 2013, the Court of Appeal held that, whilst the judge at first instance had erred in finding that the Council had complied with its consultation duties under the Education Act 1996 and its PSED, it was nonetheless inappropriate to quash the decision.
The judge held that there was not sufficient evidence to show that the Council had taken adequate steps to ascertain the views of qualifying young people about the proposal to reduce funding. While some steps were taken, these were not targeted at the relevant people and in any case did not explain "in concrete terms" what the proposals amounted to. Indeed, even the meetings with local youth clubs did not include qualifying young people. The Council had therefore failed to discharge its duty to consult as required by the Education Act 1996.
Further, the judge held that the members had failed to have "due regard" to the specific requirements under s.149 of the Equality Act 2010. While the members were told how to access the full EIA, it was not suggested that they should read it and they were therefore only provided with an inadequate summary appended to the main report. The decision to approve the financial plan was therefore unlawful.
The Court then went on to consider relief. Although a quashing order could follow, because the quashing of the decision to reduce the part of the Council's budget in relation to its youth services would also by necessity mean quashing the Council's decision to approve the entire revenue budget, the judge held that this would be a "drastic order" and "it is now too late to unwind what has been done". For this reason, the Court refused to grant any relief to the Appellant.
These cases make clear the importance of completing a proper consultation with people who may be affected by any decision. They provide useful guidance in understanding what the courts will consider to be an adequate consultation.
Authorities should be clear on what the proposal is and those whom it may affect. It should be explained within the consultation "in concrete terms" exactly how the proposed decision will affect any group of people, for example it may include a list of services which will cease to exist if the proposal is to cut funding.
Consultation papers should be circulated directly among the affected groups and brought to their attention. The court made clear in Hunt that publication in a magazine going out to all households was not sufficient in this regard. Distribution should therefore be targeted to ensure that relevant respondents' views are sought and provided.
Consultees should be specifically from those affected groups (for example, in the Hunt case above, it was not sufficient that committees of youth groups were consulted; the youth services users themselves should have been spoken to) and Councils should give consultees the opportunity to express their views about the proposal. This may be by conducting a survey or holding meetings with the relevant affected people.
When a decision is made, authorities should provide evidence that the results of any consultation have been taken into account and that the views of affected people have been considered.
One further point to note is that the judge did not think it necessary to reveal details of the costs involved in carrying out a decision and omitting this will not invalidate the consultation. Councils may, therefore, decide not to disclose such details in consultation paperwork and this should not open consultations up to criticism.
Public Sector Equality Duty
Both of these cases emphasise how important it is for the PSED to be considered when decisions are made. Not only this, Councils should document all stages of the decision making with regard to the PSED so that there is a clear audit trail should a decision be challenged.
The EIA should consider the potential impact of any decision on groups of people with each of the protected characteristics; it is not sufficient to focus on one protected characteristic in completing the assessment.
To mitigate the possibility of judicial review, good practice would be to distribute EIAs to members before meetings or, at the very least, members' attention should be drawn to where the EIA can be found. Officers should suggest that members read the EIA to ensure they have all of the relevant information about the effect of any decision on those with protected characteristics and can be shown to have had 'due regard' to the need to eliminate discrimination. Again, this should be appropriately documented.
Further, officers should make sure that any information given to the decision makers regarding any potential impact on those with protected characteristics should be specific, rather than a "vague idea" of how groups will be impacted. Where possible, empirical data should be provided, which would help show that due regard has been given to the issues.
The results of any consultation should be portrayed accurately and not given a purposefully positive spin to lead the decision maker into disregarding any discrimination.
Finally, the judgment in the Bracking case suggests that the
courts will take into account any specialisms of the decision maker
(in this case the relevant decision maker was effectively the
Minister for Disabled People). If particularly knowledgeable about
the area, it is possible that any information given to the decision
maker need not be as explicit in spelling out any impact as that
given to someone who has no understanding or background in
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