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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

09 JAN 2014

Stuart Bracking and Others v Secretary of State for Work and Pensions [2013] EWCA Civ 1345; (2013) PLLR 129

Community Care - Consultation - Public Sector Equality Duty

There was insufficient evidence to demonstrate that the Minister for Disabled Persons had had the necessary regard to her public sector equality duty under section 149 of the Equality Act 2010.

6 November 2013

Court of Appeal

Elias, Kitchin and McCombe LJJ

(1)        The decision appealed was that of 24 April 2013, which dismissed the Appellant's challenge to the Respondent's decision to close ‘The Independent Living Fund' (‘the ILF') from March 2015. The Appellants were all persons with disabilities who receive funds from the ILF.

(2)        The grounds of appeal were:

a.         The Respondent failed to discharge the public sector equality duty (‘PSED') imposed under section 149 of the Equality Act 2010 (‘the 2010 Act'), as the Equality Impact Assessment that had been undertaken was not adequate to enable the discharge of the PSED;

b.         The consultation prior to the decision being made was insufficient in that there was an inadequate explanation of what was proposed and the likely impact on the Appellants and persons in similar positions;

c.          The decision was unlawfully based on the assumption that proposals in a Government White Paper ‘Caring for the Future, reforming care and support' and a draft Social Care Bill would pass into law;

d.         In dismissing such arguments, the Judge in the Court below had failed to give adequate reasons for his decision.

(3)        The specific failings contended for in relation to the consultation were: (1) There had been a failure to reveal that the anticipated costs of closing the ILF were £39m; (2) The Minister for Disabled Persons had considered submissions from officials regarding a possible postponement of the ILF in which she was advised that postponement was not in the best interest of the ILF users, but there was no consultation with users on that issue; (3) By failing to explain why the closure of the ILF was proposed, the consultation was flawed; and (4) The Judge in the Court below failed to provide adequate reasons for why he held the consultation to be sufficient.

(4)        HELD: Dealing first with the issues as to the consultation, the Court held that the omission of the costs of the closure did not prevent consultees from understanding how the closure would affect them. The Court also rejected ground (2) in that the comments put forward by officials were a reaction to responses received to the consultation. There was no plan to consider alternative dates for closure, and therefore there was no need to consult on a proposal that did not exist.

(5)        Reasons, although short, were given for the proposed closure of the fund in the foreword to the proposal. The criticism of the final decision was too rejected, the Court finding that it would have been absurd for the Minister not to work on the basis of the Government's policy in that field. The criticisms of the consultation process were thus rejected, and the Court found that it was not necessary to consider whether the judge gave adequate reasons for dismissing the judicial review claim.

(6)        The Court found that there was a heavy burden on public authorities in discharging the PSED as imposed by the 2010 Act, and ensuring that there was evidence demonstrating that the duty had been discharged. The Court found there to be insufficient evidence to demonstrate that regard was had to the possibly grave impact upon individuals in the affected group. The information placed before the Minister did not provide her with sufficient information for regard to be had to the serious peril to the independent living of a large number of people.

(7)        There was only one reference in the EIA to the 2010 Act, and only one short passage dealing with the issue. Aside from this, there was nothing further to identify the precise impact upon persons potentially affected. The Court thus concluded that the appeal succeeded on this ground.

(8)        Given that the decision reached was unlawful, the Court held that it fell to be quashed.

Appeal succeeded

Key paragraphs

[30] - Costs omission.

[31] - Officials.

[33] - Reasons given.

[34]-[36] - Reject criticism of consultation.

[60] - Heavy burden.

[62]-[63] - Insufficient evidence.

[66] - Short reference to 2010 Act.

[67] - Fail public sector equality duty.

[69] - Quashing decision. 

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