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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

29 MAY 2013

R (on the application of Bracking and Others) v Secretary of State for Work and Pensions [2013] EWHC 897 (Admin); (2013) PLLR 055

Community Care - Consultation - Equality Duty

The consultation and analysis of the consultation responses regarding the closure of the Independent Living Fund had been lawful and had had regard to the statutory equality duty.

24 April 2013

Administrative Court

Blake J

(1)        The Claimants sought judicial review of the Defendant's consultation and subsequent decision to close the Independent Living Fund (‘ILF'). The Claimants are users of this fund, which operates as an independent discretionary trust fund. The fund worked with local authorities to develop packages which combined services or payments from the local authority and cash from the ILF to assist 20,000 service users.

(2)        The Claimant alleged that the information provided in the consultation document concerning the closure had been inadequate. The Claimants further argued that there had not been sufficient due regard to the public sector equality duty under section 149 Equality Act 2010.

(3)        It was alleged that the consultation was defective because:

(a)        Inadequate information had been given to allow consultees to effectively respond;

(b)        It was not explained whether the funding would be abolished and replaced or if local authorities intended to distribute the allocated funds themselves;

(c)        The consultation had not been undertaken transparently, an assessment of the costs had not been disclosed and neither had discussions with the Local Government Association who were strongly in favour of abolishing the ILF;

(d)        There had been no discussion of alternative options.

(4)        HELD: The Court was not satisfied that the consultation was flawed as advanced by the Claimant.

(5)        The Claimant's letter before claim indicated that the Claimants had known the potential implications of the decision and had been able to respond appropriately. The consultation was only one of a variety of inputs to the decision making process and the Defendant had acted lawfully in undertaking parallel lines of inquiry before, during and after the consultation. There was no evidence that the consultation was anything other than ‘candid and open'.

(6)        The omission of costs of the scheme form the consultation document did not prevent consultees from being able to identify the impact the cuts would have on them.

(7)        An equality impact assessment (‘EIA') had been undertaken by the Defendant. This had identified the potential loss to users. Specifically, due regard had been had to the State's duty to assist disabled persons to live independently as far as was reasonably practicable.

(8)        The Court stated that an equality impact assessment was only required to be undertaken after the consultation because one purpose of the consultation was to inform the EIA. The Defendant was thus able to satisfy the Court that the decision maker had had sufficient regard to the relevant elements of the statutory duty.

(9)        The Court stated that there had been a thorough process of analysing the response to the consultation. The challenges to the consultation and the decision to close the ILF were thus dismissed.

Claim dismissed

Key paragraphs

[34] - Not flawed.

[36](i) - Funding from local authorities.

[36](iii) - EIA post consultation.

[36](v) - Knew implications.

[36](vi) - Sources of input.

[36](vii) - Lines of inquiry.

[37] - Consultation process open.

[38] - Omission of costs.

[43] - Risk reduction funding.

[49] - Regard to duty.

[51](ii) - Rigorous analysis to consultation.

[51](iii) - Equality impact assessment.

[53] - Due regard.

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