The High Court has held that a local authority’s decision to cut funding to voluntary sector and other organisations providing short breaks for disabled children was unlawful, as the authority had not properly complied with relevant legal duties, including the public sector equality duty (PSED).  The recent case R (on the application of DAT & Another) v West Berkshire Council [2016] EWHC 1876 (Admin) will be of interest to individuals and organisations seeking to challenge funding cuts and public bodies seeking to make such cuts in accordance with their equality duties and public law principles more generally.  It is also an early indication of courts’ treatment of the PSED in conjunction with the “highly likely” test brought in with the recent judicial review reforms.

The PSED sets out a number of factors to which a public authority must have due regard when exercising its functions (including the need to advance equality of opportunity between persons who share a relevant protected characteristic, eg disability, and persons who do not share it).  In this case, other relevant legislation included duties to:

(a) make provision for services to enable breaks for disabled children and their carers; 

(b) have regard to the need to safeguard and promote the welfare of children;

(c) keep social care provision for disabled children under review; and

(d) make arrangements to secure continuous improvement to their functions in terms of economy, efficiency and effectiveness, without passing on disproportionate reductions to the third sector/small businesses.

The Council was to receive 44% less money from the Government for 2016-17, but in the face of increased expenditure requirements. After consulting on cuts to 47 public-facing services it was decided that breaks for disabled children would be reduced (“Decision 1”).  Following Decision 1, the Claimants obtained permission to bring their judicial review.  Decision 1 was then put before the Council for reconsideration and was reaffirmed (“Decision 2”).          

The High Court ruled that both Decisions were unlawful.  Whilst sympathetic to the financial pressures facing the Council, they were not relevant to the question of legality.  In taking Decision 1, members of the Council had been provided with a generic formula for the PSED (the same one for all 47 decisions), rather than one tailored for this particular decision.  The formula did not accurately capture the effect of the PSED in this context.  Further, the Council had not been directed to other statutory relevant considerations, such that Decision 1 was unlawful. 

Although the materials before the Council when taking Decision 2 would have allowed it to make the Decision lawfully, the way in which the issue was presented to members at the relevant meeting gave the impression that they were expected to “rubber stamp” Decision 1.  There was a “very clear appearance of predetermination”, such that the Court held that Decision 2 had no effect.

The Council sought to argue that no remedy should be granted under section 31 of the Senior Courts Act 1981 (as recently amended).  Section 31 prohibits the Court from granting permission or relief in judicial review (in the absence of exceptional public interest) where it appears “to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”. Here, the Court was not satisfied on the balance of probabilities that, if the right tests were considered in taking Decision 1, it would not have reached a different outcome or that it would not have made Decision 2 differently to the extent that it believed that it was open to it to do so. In any event, the Court held there was exceptional public interest in the Council being seen to observe the relevant legal provisions when making decisions effecting cuts to services provided for vulnerable children. 

This case therefore demonstrates that, contrary to some early predictions, the "highly likely" test will not necessarily militate to excuse failure to appropriately fulfil the PSED. 

If you have any questions about anything discussed in this article, please contact the Public & Regulatory department

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Emma Dowden-Teale


+44(0)20 7551 7890

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Melanie Carter

Partner and Head of Public & Regulatory

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Posted on 16/08/2016 in Legal Updates

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