Courts still slow to interfere in spending cuts decisions

15 September 2011 by Alasdair Henderson

R (JG and MB ) v. Lancashire County Council [2011] EWHC 2295 (Admin) – read judgment here.

Public sector cuts are back in the news, with the trade unions warning of their plans to stage the biggest series of strikes in a generation.  However, attempts to take the fight against the cuts into the courts as well as onto the streets were dealt a serious blow recently, as the Administrative dismissed an application by two disabled women for judicial review of Lancashire County Council’s decision to significantly reduce their budget for adult social care services. 

This case provides a very helpful summary of the courts’ approach to public bodies’ equality duties (now the new general Public Sector Equality Duty in s.149 of the Equality Act 2010). It is also a reminder that the courts are reluctant to interfere with difficult social or economic decisions made by elected officials, as long as there has been proper consideration of the relevant factors, despite other recent cases where such decisions have been struck down.

Financial pressure and difficult decisions

The background to the case was the Government’s announcement in the 2010 Comprehensive Spending Review that it would be significantly reducing the grant from central government to local authorities. In effect, this required local councils to reduce their spending by some 25% over the coming four years. The claimants were challenging two decisions made by the council in response to this financial situation: (1) the decision made by the full council to approve a reduced budget for 2011-2014; and (2) the decision made by the council’s cabinet member for adult and community services to approve two policies – one raising the eligibility threshold for adults accessing social care services, and the other increasing the charges for social care services received at home.

The council had undertaken a lengthy consultation prior to setting its budget. In particular, the results of the consultation had indicated that local residents were overwhelmingly opposed to an increase in council tax, which meant reductions in spending were the only option to balance the budget. In addition to a general consultation, the council also undertook a consultation (with existing service users and others) on the future of adult social care services, entitled (aptly) Making Difficult Decisions.

The full council approved the budget on 17 February 2011, which fixed an overall budget limit for each set of council services, but did not constitute approval for any particular proposals for how that limit would be kept to. Decisions about the details were a matter for cabinet members. The cabinet member for adult social care services then considered the responses to the more specific consultation, as well as several reports, before making his decisions. These reports included a ‘mitigation plan’ to ensure the impact of withdrawal of services on current users would be reduced as much as possible, and eligibility regularly reviewed. They also included an ‘equality impact assessment’ (EIA), which carefully considered the practical effect the proposed changes would have on, amongst other groups, disabled people.

The Public Sector Equality Duty

Parker J set out at paragraphs 43-46 of his judgment a very clear and comprehensive summary of the courts’ approach, thus far, to the s.49A Disability Discrimination Act 1995 equality duty (now s.149 EqA). In particular, he derived a set of four principles from the cases of R (Baker) and R(Brown):

i) The statutory duty…is not one to achieve a particular substantive result (whether to promote equality or otherwise) but to have “due regard” to the need to achieve these goals. Due regard is regard that is appropriate in all the circumstances…;

ii) The public authority must also pay regard to any countervailing factors which, in the context of the function being exercised, it is proper and reasonable for the public authority to consider. The weight to be given to the countervailing factors is a matter for the public authority, not the court, unless the assessment by the public authority is unreasonable or irrational…;

iii) A failure to make explicit reference to the statute does not show that the duty has not been performed…It is immaterial whether or not the decision-maker was even aware of the duty provided that in substance he had due regard to the matters specified in it…;

iv) There is no obligation in the DDA to carry out a formal EIA…although such an EIA is a helpful way of demonstrating that the statutory duty has been complied with.

The Decision

The claimant’s real complaint about the full council’s budget decision was that, while the council may have been aware of its equality duty, it did not, at the time that the initial budget decision was taken, carry out a detailed assessment of the likely impact it would have. There was some basis for this complaint – in previous cases (e.g. R(BAPIO Action Ltd) or R(EHRC)) the courts have emphasised that the equality duty must be a preliminary step, something fulfilled prior to the adoption or implementation of the decision in question. However, Parker J held that in this case the timing of the council’s decisions was perfectly lawful:

What, in fact, has happened in this case is that the decision-maker has taken a preliminary decision in relation to its budget, fully aware that the implementation of proposed policies would be likely to have an impact on the affected users, in particular, disabled persons, but not committing itself to the implementation of specific policies within the budget framework until it had carried out a full and detailed assessment of the likely impact. In my view, there is nothing wrong in principle with such an approach and nothing inconsistent with the duties under the DDA…The economic reality was that to meet imperative needs of reducing expenditure it would be extraordinarily difficult to avoid an adverse effect on adult social care. But there remained flexibility as to how any such effect on disabled persons could be minimised and mitigated, and I am satisfied that the Council kept an open mind as to the precise policies that would be implemented.

The claimants challenge to the cabinet member’s decisions was that, despite the existence of an EIA etc. the assessment of impact on disabled people was inadequate. Parker J had no difficulty whatsoever in dismissing this challenge, holding that “there is simply no foundation for that allegation”. He acknowledged that the claimants might have disagreed with the cabinet members’ analysis and decision, but emphasised that:

…the challenge is not a Wednesbury challenge to the reasonableness of the Council’s budget or the policies that it has adopted. The allegation is that is has failed to have due regard to the relevant factors under the DDA. Whether or not the mitigating steps were adequate was a matter for the Council to determine. The fact that the Council did direct its mind towards the question of what mitigating steps could be taken so as to lessen the impact…demonstrates that the Council did in fact have due regard to the matters specified in the DDA.”

Comment

This is but the latest in a string of cases challenging the budget cuts, on a local or national level, on the basis that the public sector equality duties have not been complied with. Where the challenge is tightly focussed on specific policy decisions made in the light of financial restrictions, and the public authority has complied with the equality duty as an afterthought or failed to properly assess the practical impact on a particular protected group of people, it has succeeded.

For instance a challenge to a decision by Birmingham City Council to cut funding of legal advice services was allowed (see our case report here), and a separate challenge to Birmingham’s decision to change its eligibility criteria for adult social care (making them even stricter than Lancashire’s) was also successful. This, along with recent comments by senior judges, would seem to indicate the courts taking a robust line on testing government decision-making, even in hard economic times.

However, there are important limits to the courts’ role, as this case shows. Where economic decisions are made at a macro level the courts will not expect any kind of detailed impact assessment. In R(Fawcett Society) [2010] EWHC 3522 a challenge to the entire national budget on the basis that the Government had not complied with the s.76A Sex Discrimination Act 1975 equality duty was emphatically dismissed. Similarly, when a public authority waits until it is considering the detailed policy outworking of a budget decision, but does at that point consider the practical impact on disabled people or other protected groups, the courts will be loath to interfere with the resulting decision.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts

• Council disregards new equality duties in terminating free legal services – Shaheen Rahman
• Family legal aid tender process was “unfair, unlawful and irrational”
• A cut out and keep guide to judicial review
• Coalition cancellation of school building program was unlawful