Council disregards new equality duties in terminating free legal services

21 April 2011 by Shaheen Rahman

Rahman, R (on the application of Birmingham City Council) [2011] EWHC 944 (Admin) (31st March 2011) – read judgment

The Prime Minister recently called upon immigrant communities to integrate more fully in British Society, criticising in particular those who fail to learn English.

But three longstanding residents of Birmingham who communicate poorly in English and rely upon legal entitlement advice centres to provide services in their mother tongue, have successfully argued that the Defendant Council unlawfully failed to discharge its Public Sector Equality Duty in ceasing to fund the centres. Two further Claimants, with disabilities, also succeeded in their challenge to the Council’s decision to cease funding another centre that was providing free assistance in welfare benefit appeals.

The Defendant Council took the decision to terminate funding of the centres in November 2010, pending new commissioning arrangements coming into force the following summer. However, the withdrawal of funding in the interim period meant that the centres were at risk of no longer being in existence by the time recommissioning took place.

The Claimants argued that the decision was taken in breach of the Public Sector Equality Duties (“PSED”), principally in relation to race and disability.

At the time of the challenged decision, the PSED were enshrined in section 71 of the Race Relations Act 1976, section 49A of the Disability Discrimination Act 1995 and section 76A of the Sex Discrimination Act 1975. The legislation required public authorities to have due regard to the need:

(i) to eliminate unlawful discrimination and harassment in the fields

of race, sex and disability;

(ii) to promote equality of opportunity between those with a protected characteristic and others;

(iii) to promote good race relations; and

(iv) to take steps to take account of disabled people’s disabilities even

where that involves treating disabled people more favourably than others, to promote positive attitudes towards disabled people and to encourage participation by them in public life.

Prior to the November decision, the Defendant Council had in fact compiled an Equality Impact Needs Assessment (“EINA”). However, this document was not referred to in the report that was considered by the Council when reaching its decision.

In March 2011, following the instigation of judicial review proceedings by the Claimants, the Council purported to take a fresh funding decision, having due regard to the EINA. However, it reaffirmed its previous decision to discontinue funding pending recommissioning.

The Claimants argued that this decision was also unlawful because of inadequate consultation and a flawed assessment of the impact upon vulnerable users of the termination of funding. Moreover, it was contended that having regard to the EINA was not enough. The duty the Defendant owed was to give due regard to the statutory criteria in the light of all available material, not simply to its officer’s report. By March 2011 there was abundant evidence, not least from the evidence filed by the Claimants in the judicial review proceedings, as to the adverse impact of the discontinuance of funding.

The Defendant’s response to these grounds was subject to a number of modifications over time. However, by the time of the hearing its position was that whatever the merits of the grounds, funding had to be discontinued because of central government cuts. Although this was not explicitly stated to be the reason behind the decision, these matters were well known and must have been in the minds of the decision makers. It was conceded that but for the economic exigencies of the day, it would have been reasonable for the affected centres to expect continuity of funding until the recommissioning decision was taken. However, the court was invited by the Defendant to find that any defects in the decision-making process were procedural at most. The discontinuance of funding was justified on the grounds of the Defendant’s budgetary problems. The cost of funding the three centres used by the Claimants alone would be £25,000 per month.

Held

Application granted. In finding for the Claimants, Mr. Justice Blake considered the relevant principles to be applied in relation to the PSEDs, as summarised in R(Boyejo & Ors) v Barnett LBC and Smith v Portsmouth CC [2009] EWHC (Admin) 755. He noted that there was no evidence to suggest that each of the decision makers were aware of the PSED, as they were required to be, when they took the original decision in November 2010. This decision was ‘clearly defective’.

As for the March 2011 decision, it was clear that the decision makers had by this time had their attention drawn to the EINA and the need to take it into account. But there were substantial defects in the EINA. The judge noted in particular that there was inadequate assessment of the degree of disadvantage to existing users from discontinuance of funding. The EINA appeared to be driven instead by hopes of the advantage of a new policy, leading to “more than a hint of what Moses LJ called….policy based evidence rather than evidence based policy”. The judge also found that the consultation process was inadequate in a number of respects and did not follow the Defendant’s own guidance. He agreed with the Claimant’s contention that the Defendant’s duty did not end with the EINA, the duty was to have regard to PSED as statutorily defined.

The judge accepted that had the PSED been properly complied with, the court could only have interfered with the Council’s decision had it been irrational. There was no duty to fund the centres and “in a pressing financial climate, difficult choices for the defendant have to be made”. However, the Defendant had not complied with the PSED. There was no reason to stop funding in the interim period and the court accordingly ordered that funding should continue for the three centres used by the Claimants until recommissioning took place or a lawful decision to discontinue funding, having proper regard to the PSED, to was taken.

It should be noted that the new general public sector equality duty, which came into force under the Equality Act 2010 on 5th April 2011, requires public authorities to adopt a similar approach to that enshrined in the previous legislation in relation to sex, race and disability and has added some new protected characteristics including age, sexual orientation, and religion or belief.

It may be expected that further equality duty challenges will be mounted against local or central government decisions, if, as this case suggests, cuts in public services have a disproportionate effect upon minority groups.

Shaheen Rahman is a barrister at 1 Crown Office Row chambers.

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