Domb & Ors, R (on the application of) v London Borough of Hammersmith and Fulham & Ors

On 16 June 2008 the London Borough of Hammersmith and Fulham (the “Council”) by its cabinet took a decision to make charges for the non-residential home care services (the “home care services”) which it provides pursuant to the Health and Social Services and Social Security Adjudications Act 1983 (HASSASSAA 1983). It has power to make charges pursuant to section 17 of that Act.

In these proceedings for judicial review, the claimants, Deborah Domb, Dulce Sobral and Moses Bushiwa, have challenged and seek to quash that decision. Ms Domb is a wheelchair user who needs help in many aspects of her daily life. Ms Sobral suffers from a number of medical conditions leaving her constantly exhausted and in severe pain so that she needs assistance with many of the physical tasks of daily living. Mr Bushiwa is completely blind: he lives alone and needs assistance with a wide range of daily activities. Their complaint centred on the Council’s alleged failure to have due regard to its disability equality duties contained in section 49A of the Disability Discrimination Act 1995. Although the case is centred on such duties, complaint is also made of failure to have due regard to gender and race equality duties as well, under the broadly equivalent provisions of section 76A of the Sex Discrimination Act 1975 and section 71 of the Race Relations Act 1976 respectively.

The judge, Sir Michael Harrison, dealt with a rolled up permission and substantive hearing. He granted permission, but refused to quash the decision. He concluded (at para 93):

“Having therefore considered the various points raised on behalf of the claimants in relation to this part of the claim, my conclusion is that, although there are some aspects of the Council’s consideration which can justly be criticised, when the exercise is considered as a whole it cannot be said that the Council did not have “due regard” to its general equality duties. In my view, the Council did in substance, not just in form, have due regard to eliminate unlawful discrimination and to promote equality of opportunity in relation to the relevant equality duties in this case.”

The judge refused permission to appeal. In response to the application to this court by the claimants, my Lord, Sedley LJ refused permission in respect of the claimants’ first ground, which related to an argument of legitimate expectation, and adjourned their application in respect of their remaining grounds, with appeal to follow if permission were granted.

We would grant permission to appeal in respect of the adjourned grounds. Permission has not been pursued in respect of the issue of legitimate expectation. Ms Domb, Ms Sobral and Mr Bushiwa have thus become appellants, and the Council is respondent.

The Council’s decision was made in the following circumstances. The Council exercised its power to charge for home care services from 2000 to 2006, but in the latter year that policy was discontinued by the then Labour administration. The Conservatives won the May 2006 local government elections in Hammersmith and Fulham on a manifesto which included a policy of not charging for the services. However, over the next two years the Council experienced increasing financial pressure on its budget including its social services budget. Ultimately, officers could identify only two ways of bridging the gap in funding – by increasing the threshold eligibility criteria for home care services or by introducing charges for them. The threshold criteria are divided into four levels of eligibility: critical, substantial, moderate and low. In the past, all levels of need save for low had been met. In 2007, after consultation, the Council had raised the banding criteria so as to exclude lower moderate needs as well as low. What was now being considered as an alternative to charging was to exclude all moderate needs. That would result in a large number of users losing a service and was therefore regarded as the less preferable of the choices. On 17 January 2008 the Council therefore decided to consult on the possibility of re-introducing a home care charging scheme.

In the meantime the 2008/9 budget had been receiving consideration, although the timing and detail of the decisions in respect of this have not been definitively established and neither the complaint, nor the evidence in the case, nor the judgment below have concentrated on such matters. It seems, however, that among the budgetary considerations were: the ramifications of a medium term financial strategy (the “MTFS”); the forecast of increasing spending on home care services because of demographic changes (for instance forecast growth of £5m by 2010/11); restrictions on funding on a national level; a proposal to reduce the council tax by 3%; and, across the budget as a whole, a host of myriad other considerations. In sum, it was estimated that it would be necessary to support the planned increased spending on home care services by finding some £1.3m of savings in a full year.

It seems that the Council’s cabinet considered the 2008/9 budget proposals on 4 February 2008, and the Council as a whole considered it on 28 February 2008. We have no documents relating to those meetings. However, a report to the Health and Adult Social Care Committee dated 22 January 2008 throws some light on the budget proposals then being generated. Among the budgetary items scheduled as being “at risk” was the question of a charging scheme (or changing the eligibility criteria) for the home care services (there referred to as adult social care or ASC services). Among the passages in the report of relevance to the present case are the following:

“The MTFS Process in Community Services

10.2

Overall the Community Services budget will increase from £74.550m to £78.357m an increase of £3.807m. The 2008/09 MTFS process will result in a budget increase for Adult Social Care services of £662k above the 2007/08 base level, excluding any transfer of services and central item movements…

The decision of 17 January 2008 was to consult on a proposal to consider a charging scheme for the provision of home care services. An equalities impact assessment for the proposed consultation had been prepared. The report to cabinet briefly reviewed some of the considerations, beginning with HASSASSAA 1983, and ending with the need for the Council to be mindful of its duties under section 49A of the Disability Discrimination Act 1995, which were then set out.

The consultation process then initiated took place over a twelve week period between February and March 2008. No complaint is made about the consultation. It is well described by the judge:

“47…The consultation included a questionnaire and 30 consultation events. A Charging Reference Group acted as a reference point for the consultation. That group consisted of Hammersmith and Fulham Action on Disability (a local voluntary organisation which provides services and campaigns for people with disabilities), the Hammersmith and Fulham Disability Forum (an action group of service users and residents), the Hammersmith and Fulham Better Government Consultative Forum for older and disabled people, and Hammersmith and Fulham Mencap (a voluntary organisation for people with learning disabilities). Views were sought from a large number of present and prospective service users. The Council offered to consult the Hammersmith and Fulham Coalition Against Cuts, with whom the claimants are associated, but that body did not wish to be associated because it disagreed with charging in principle. Each of the three claimants were sent consultation questionnaires and the third claimant attended the consultation meeting with the Disability Forum where he made his views known.”

Although the Hammersmith and Fulham Coalition Against Cuts (the “Coalition”) did not wish to be associated with the consultation, its leaflet expressing its opposition to “Care Cuts” was obtained and, as will appear below, annexed to the report to cabinet which was prepared for its decision meeting of 16 June 2008.

As the judge also recorded, the consultation process was designed to be part of a Predictive Equalities Impact Assessment (or “PEIA”). That was the term which the Council used to describe the assessment process which, pursuant to the statutory equality duties imposed on a local authority such as the Council, was undertaken in preparation for the decision.

Section 17(1) of HASSASSAA 1983 provides that local authorities “may recover such charge (if any)…as they consider reasonable” for services such as the home care services with which we are here concerned. However, section 17(3) also provides that an authority shall not require a user of such services to pay for them if “his means are insufficient for it to be reasonably practicable for him to pay”.

The Secretary of State has issued guidance relevant to local authorities (pursuant to section 7 of the Local Authority Social Services Act 1970) concerning the exercise of their discretionary power to charge for home care services: the Fairer Charging Policies for Home Care and other non-residential Social Services Guidance for Councils with Social Services Responsibilities (2003, DoH). The DoH Guidance sets out a broad framework to help local authorities ensure that their charging policies are designed to be fair and to operate consistently with their overall social care objectives. No complaint is made on this appeal with regard to any failure of compliance in this regard. On behalf of the Equality and Human Rights Commission (EHRC), which has been permitted to intervene, Ms Karon Monaghan QC, in her most helpful submissions, has pointed out, however, that the DoH Guidance precedes the enactment of the disability equality duties referred to below (as well as the gender equality duties, and makes no mention of the race equality duties).

The first statute to provide for certain bodies such as local authorities to be under a duty to have due regard to the need to eliminate discrimination and to promote equality, which have been described as the negative and positive aspects of the general duty, was section 71 of the Race Relations Act 1976 (the RRA 1976), substituted pursuant to the Race Relations (Amendment) Act 2000. Thus:

“(1)

Every body or other person specified in schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need –

(a)

to eliminate unlawful racial discrimination; and

(b)

to promote equality of opportunity and good relations between persons of different racial groups.”

The race equality duties came into force in April 2001.

The disability equality duties came into force in December 2006, pursuant to section 49A of the Disability Discrimination Act 1995 (the DDA 1995), as amended by the Disability Discrimination Act 2005. Section 49A provides:

“(1)

Every public authority shall in carrying out its functions have due regard to –

(a)

the need to eliminate discrimination that is unlawful under this Act;

(b)

the need to eliminate harassment of disabled persons that is related to their disabilities;

(c)

the need to promote equality of opportunity between disabled persons and other persons;

(d)

the need to take steps to take account of disabled person’s disabilities, even where that involves treating disabled persons more favourably than other persons;

(e)

the need to promote positive attitudes towards disabled persons; and

(f)

the need to encourage participation by disabled persons in public life.”

For present purposes, Mr Wolfe highlights the duty under section 49A(1)(c) as that for which the Council has failed to have had due regard.

Finally, the gender equality duties came into force in April 2007, pursuant to section 76A of the Sex Discrimination Act 1975 (the SDA 1975), as amended by the Equality Act 2006. Section 76A provides:

“(1)

A public authority shall in carrying out its functions have due regard to the need –

(a)

to eliminate unlawful discrimination and harassment;

(b)

to promote equality of opportunity between men and women.”

Regulations made pursuant to these three statutes require, respectively, a race, disability and gender “scheme” to be published by a local authority to demonstrate, inter alia, its proposals for assessing the impact or likely impact of its policies and proposals on equality in respect of the relevant duty. In each case there is also a statutory code of practice.

Thus in the case of the DDA 1995, the relevant regulations are the Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 2005 (the “Regulations”). Regulation 2(3) provides –

“A Scheme shall include a statement of –

(a)

the ways in which such disabled people have been involved in its development;

(b)

that authority’s methods for assessing the impact of its policies and practices, or the likely impact of its proposed policies and practices, on equality for disabled persons;

(c)

the steps which that authority proposes to take towards the fulfilment of its section 49A(1) duty;

(d)

that authority’s arrangements for gathering information on its policies and practices on disabled persons…”

The code of practice relevant to the DDA 1995 was issued by the Disability Rights Commission (now folded into the EHRC) in 2005, and was called The Duty to Promote Disability Equality: Statutory Code of Practice (the “Code”). Para 2.5 of that Code states that the “overarching goal of the duty is to promote equality of opportunity”. Para 2.37 recognises that, while due regard must be given to that duty alongside other competing requirements, it will not always be possible to adopt the course of action which will best promote disability equality. Paras 3.28ff deal with the need for a disability equality scheme to address the methods by which a local authority will carry out an impact assessment. For instance –

“3.32

Impact assessment is not an end in itself but is merely the process which an authority will go through in order to identify and act on the need to modify policies and practices to have better regard to the need to promote disability equality.”

Although the Regulations and Code have been drawn to our attention, no specific provision of either has been addressed by either Mr David Wolfe, who represents the appellants, or by Ms Monaghan on behalf of the EHRC, in order to advance the complaint that in this case the Council failed in their general duty to have “due regard”. However, it is submitted that the impact assessment which the Council carried out, and in particular the report to cabinet which was then made on the basis of that impact assessment, were inadequate to permit the cabinet to have “due regard”. It is necessary to address those documents in some detail.

The Council’s conduct of impact assessments is the subject-matter of its Advice Note 1, headed The Race Relations (Amendment) Act 2000, Disability Discrimination Act 2005, the Equality Act 2006: The Predictive Equality Assessment Process. That so-called process, the PEIA, was the Council’s tool for analysing what the effect of proposed changes would be on relevant sections of the local population. The document, which appears to have been designed in particular for officers charged with writing PEIAs and reports for the Council, recognised that differential impacts on any given social group might be positive, neutral or negative. If proposals were assessed as likely to be unlawfully discriminatory or otherwise undesirable, then it would be necessary to identify alternative, mitigating or additional measures to seek to remedy the situation. The text of the document under the heading of “The author” and again the “Summary of the key principles” at the end contained the warning that the PEIA must not be attached to the main report or proposal and would not be seen by cabinet. It was rather for the author of the report to cabinet to be responsible for ensuring that a PEIA was carried out and reported on. A further back-up was the requirement to send a PEIA to “PPO Equalities” who acted as the corporate monitoring and validating officer.

The PEIA in the present case was conducted by Ms Angela Jenkinson, who is the Council’s Head of Directorate Development. She also managed the consultation process and wrote the report to cabinet. She has provided a detailed witness statement. She explains that the consultation process was designed to be part of the assessment, and that each draft of the PEIA was emailed to the equalities officer, Mr Pinakin Patel. Contrary to Advice Note 1, the PEIA upon which Ms Jenkinson reported to cabinet was still in draft rather than final form: however, the evidence is that the draft PEIA as at 16 June 2008 was the substantive version and that there were only minor changes thereafter. I will refer to such changes as may be necessary for me to mention. Ms Jenkinson’s report to cabinet was completed on 6 June 2008 and so was available in good time for the meeting on 16 June.

Mr Patel has also made a witness statement. At the time he was Principal Equalities Officer, but is now Head of Improvement and Integration. He is also chair of the London Equalities Network, which represents equality officers from a range of different London boroughs. He was closely involved with Ms Jenkinson in the development of the PEIA, and considered it to be “one of the most robust and comprehensive PEIAs” he has seen.

It is necessary to refer to parts of the PEIA which were relied on by the parties, in particular by Mr Wolfe as demonstrating either its inadequacy in itself or, on the contrary, its dealing with matters which he submits did not get to be adequately addressed in the report.

Section 1 is headed “Who are the main people that this decision will affect?” and continues –

“A decision to introduce home care charging would affect current and prospective home care service users over 18 years regardless of age, gender, disability or impairment, ethnic origin, sexuality or belief system.

In particular, current service users who would be eligible for home care charging would be affected. At the time of the consultation there were approximately 1800 home care service users although this figure inevitable fluctuates slightly over time, of whom an estimated 600 would be eligible for charging.

Such a decision would affect informal carers similarly, where they currently care for someone who is in receipt of home care services, where they might in future do so, or where they receive home care services in their own right.”

Section 1 concluded:

“If the Council introduces home care charging the princip[al] planned outcome is the continued ability of the Council to meet the population’s adult social care needs at the current threshold for services. In the light of concerns regarding the quality of home care provision raised during the consultation, a review will be undertaken of the quality assurance mechanisms for home care services including a review of the information given to home care service users regarding standards of care. This review will proceed regardless of the Cabinet decision on home care charging.”

Section 2 was headed: “Identify the risks that could prevent the planned outcomes”. It began –

“There is a risk that Cabinet could decide not to introduce a home care charging policy.”

Section 3 asked: “Could the proposal have a positive impact on a) race b) disability c) gender d) sexual orientation e) age f) belief system groups?”

Mr Wolfe submits that this answer was (i) perverse, and in any event not to be found in the report to cabinet and thus to be left out of account in considering whether the Council had performed its “due regard” duty under section 49A(1)(c) (ground of appeal 2); and (ii) irrelevant, unless the prior budget decision had limited the choice between charging and raising the threshold for services, or unlawful, if that prior budget decision had done so without consideration of the impact on those to whom the duty of “due regard” was owed (ground of appeal 3).

Section 4 asked: “Could the proposal have a negative impact on a) race b) disability c) gender d) sexual orientation e) age f) belief system groups?” A general answer preceded specific consideration of inter alia impact on race, disability and gender. The general answer was as follows:

“A decision to introduce a home care charging policy would have a negative impact on those current and prospective service users who would be eligible to pay and on informal carers who support service users who would be eligible to pay. In particular, a home care charging policy would have a negative impact on those service users whose income only just exceeds the charging threshold as set down in the Fairer Charging Guidance.

The Council has a legal obligation to provide services to meet assessed need regardless of service users’ ability to pay. Despite this, some people might be reluctant to request or accept home care services even where services are to meet an assessed need above the eligibility threshold because they feel they are unable to afford home care charges even where they have been assessed as eligible for charging.

These potentially adverse impacts would not be related to age, gender, disability or impairment, ethnic origin, sexuality or belief system. These impacts would mirror the known profile of home care service users. Therefore there would be no group for whom a home care charging policy as proposed would have a disproportionately adverse impact.

The largest single service user groups that questionnaire respondents thought would be most affected were people who were frail and over 65 (51% responses) and people with a physical disability (50% responses). A considerable number of questionnaire respondents thought home care charging would affect everyone equally (44% responses). This was consistent with consultation event outcomes. There was no correlation between race, disability, gender, age or belief system groups and the consultation questionnaire outcomes. Home care charging would not have a differential impact on sexual orientation.”

The specific answer concerning race then followed:

“a)

Race

• The Council monitors the take up of home care by ethnic group.

• As of Council data produced May 2^nd 2008, some ethnic backgrounds are highly represented within home care service users. In particular, 9.41% of the local population is Black or Black British whereas 16.35% of home care users are Black or Black British. Similarly, 4.04% of the local population is Asian or Asian British whereas 5.55% of home care users are Asian or Asian British.

• The 2004 Housing Needs survey sets out the distribution of average annual gross household income (including non housing benefits) and indicates a significantly lower mean and median average gross annual income for people of Asian and black ethnic backgrounds than white.

• Mitigating actions would need to take this into account.”

Mr Wolfe relied on this passage headed “Race” to submit that there was here found a specific racial adverse impact relevant to the stated ethnic groups, an impact recognised by the reference to “mitigating actions”, but that this finding was not carried over into the report. Therefore, the Council could not have had any, let alone due regard for its racial equality duties (ground 4).

Under the heading “b) Disability”, the PEIA gave statistical details concerning various kinds of disabilities to be found among those users of home care services who were also on the Council’s disability register. It also indicated that people with mental health needs (comprising 15% of that total, or 86 in all) were highlighted through the consultation events as those who would be particularly adversely affected, partly because of the stress incurred by the introduction of a charging scheme. However, no ground of appeal was related in particular to this passage, although it was relied on below.

There followed a passage dealing especially with gender, viz –

“c)

Gender

• As of Council data produced May 2^nd 2008, more women than men receive home care. This is probably related to the longer average life expectancy of women compared to men. As such, women would be more affected were home care charging introduced, but not disproportionately so.”

Mr Wolfe also relied on the passage headed “Gender” to submit that there was here found a specific gender adverse impact relevant to women, but that this finding was not carried over into the report. The Council again, therefore, could not have had any, let alone due regard for its gender equality duties (ground 5).

Mr Wolfe also submitted, although there was no relevant ground of appeal and the matter first surfaced as a complaint in his reply skeleton in this court, that the adverse impact for carers of the home care service users recognised in the PEIA passages cited above (under sections 1 and 4) went unrecorded in the report to cabinet and thus went without any, let alone due regard by the cabinet.

Finally the judge referred to section 5 of the PEIA, which asked “Can any negative impact of the decision be justified?” The answer given started as follows:

“The intended positive impact of the decision to charge for home care services would be the continued ability of the Council to meet the population’s growing adult social care needs up to and including 2010/2011 at the current threshold for services. Therefore, a home care charging policy would ensure that the most vulnerable people continued to have access to and benefit from the services that they need.

Furthermore a number of specific actions to mitigate against the impact of a decision to charge for home care services have been identified through the home care charging consultation process and through the equalities impact assessment.”

There then followed details of five identified actions which related to income maximisation, financial assessments, training and development, home care quality, and information and communication. The financial assessments needed to be “simple, non burdensome, focused on self assessment”. “Home care quality” picked up a point that had been made in consultation about the questionable quality of the services provided. An information and communication plan would be devised inter alia to address the needs of particular groups within the users.

A point arises on the final version of the PEIA, which was ultimately completed on 9 July 2008. The specific passage under section 4, headed “c) Gender” was rewritten, so as to read as follows:

“• As of Council data produced May 2^nd 2008, 1,113 or 64% of home care users are female and 636 or 36% are male.

• This is compared to the local population where 71,259 or 51% of people are female and 69,699 or 49% are male.

• Therefore, it is probable that more women would be affected were home charging introduced, but not disproportionately more.”

Mr Wolfe relies on this later passage for the submission that the PEIA is comparing the proportion of women users to the proportion of women in the population at large, and submits that the comment “not disproportionately so” is perverse. However, the evidence is that these statistical details were included at the request of consultees, whereas Ms Jenkinson’s point, as author of the PEIA, remained that the true comparison was the number of women users as a percentage of the cohort of all users, as indicated by the original form of this passage in the draft PEIA.

It is next necessary to consider the report to cabinet, also referred to as a “key decision” report. I will first detail those sections of the report which in some way traversed (or failed to traverse) the same ground as the PEIA and have been relied on by Mr Wolfe as supporting his four grounds.

Thus section 5 of the report is headed “DISABILITY EQUALITY DUTY” and reads as follows:

“5.1

The Fairer Charging Guidance is limited in its application only to those in receipt of home care. Therefore only disabled people would be affected by a home care charging policy as only disabled people in the broadest sense are in receipt of home care.

5.2

Within adult social care the alternative to charging which would have a similar financial impact would be to raise the eligibility threshold and so provide services to fewer service users. The consultation specifically addressed this to enable members to balance the impact of either change on disabled people. Questionnaire responses on this issue were 45% in agreement with the approach of pursuing a home care charging policy as opposed to raising the threshold for social care service. 30% disagreed with this approach. The remainder expressed no view.

5.3

Paragraph 2.35 of the Statutory Code of Practice requires the Council to determine whether or not the consultation was relevant to disabled people. Members are advised that the home care charging consultation was extremely relevant to disabled people. Paragraph 2.36 of the Statutory Code of Practice requires the Council to determine how proportionately affected disabled people would be by such a policy. Members are advised that this policy affects only people who are disabled in the broadest sense and therefore members must give full consideration as to how a care home charging policy would affect disabled people.

5.4

The Fairer Charging Guidance ensures that service users are charged only an amount they can afford to pay and in many cases this will result in no charge. The assessment of a person’s ability to pay is completely distinct from the assessment of need for services so disabled people should not receive fewer services as a result of this proposed policy. However, it is likely to be the case that a number of service users will choose to purchase their care from private providers especially where only domestic support is required as their costs may be less than the Council’s charge.

5.5

An equalities impact assessment was undertaken by the charging reference group. The reference group consisted of representatives from the Disability Forum, Hammersmith and Fulham Action on Disability, Better Government and Mencap as well as officers of the Council. Key actions agreed by the group included…”

and the same five key actions as were addressed in the PEIA as “specific actions to mitigate” were listed.

Mr Wolfe on behalf of the appellants submits that these passages of the report were defective in that: (i) there was no consideration there, and thus there could have been no “due regard”, given to the positive duty to promote disability equality: the little that had appeared in the PEIA (itself criticised as inadequate) had been lost from the report; (ii) the reference in the PEIA to concern about the adverse effect on ethnic minority users of the home care services had been lost, so that no due regard had been given to racial equality; and (iii) the same could be said about the PEIA’s reference to adverse effect on women users, so that no due regard had been given to gender equality. Beyond, and indeed prior to, those specific criticisms was his more general complaint that the Council had failed to give due regard to the positive disability equality duty by reaching a situation where, as reflected in the report (and the PEIA), the only alternative to charging which was under consideration was changing the eligibility threshold. There was therefore a failure in “due regard” for the duty of promoting disability equality by allowing for the possibility that the money to be saved by charging could have been found, for instance, by deciding not to cut the council tax by 3% at all, or by raising money in some totally distinct area of the Council’s budget, such as, for instance, parking charges and so on.

There was much else in the report (some of which was also reflected in the PEIA). It is necessary to provide a summary of the report as a whole.

The report began by recording that the decision on 17 January 2008 was “to consult on a home care charging scheme in which the proposed rate is £12.40 per hour”. The proposed scheme was said to be “in line with Fairer Charging Guidance”. The report next stated its recommendations, which were to adopt such a scheme, with an implementation date of 1 January 2009, ultimately at £12.40 per hour, but beginning at the rate of £10 per hour in 2008/9. There were other recommendations as to the deployment of “optional disregards” to ensure that users would only be charged in circumstances that left them with sufficient assets and income to meet necessary expenditure. The report then set out the “Background”, which included a survey of national charging policies. 97% of councils with social services responsibilities charged for home care. 30 of the 33 London boroughs currently charged. Their average hourly charge was £13.81. Of the three which did not charge (Hammersmith and Fulham was currently one), the other two, TowerHamlets and Newham, received a higher formula grant overall and per resident from central government (£878 for Newham and £1,073 for TowerHamlets, against only £673 for Hammersmith and Fulham). Moreover TowerHamlets and Newham only met “critical” and “substantial” needs.

The report next turned to the situation in Hammersmith and Fulham itself. It referred to the (national) demographic changes which were causing demand pressures on social care and consequential forecasts of rising and over-budget expenditure in the borough. A following section of the report gave further details of the proposed charging scheme. Benchmarking for all 33 London boroughs was attached as an Appendix, supporting the average figure charged of £13.81 per hour. It was estimated that two-thirds of current users would not have to pay anything.

Section 4 was concerned with the consultation exercise. This was a lengthy section. One of the points specifically addressed by the consultation was “Mitigating actions”, ie the means by which the Council could minimise the impact were home care charging introduced “and any general concerns”. Extensive details of the consultation were given.

Specific reference was made to the position of Hammersmith and Fulham Coalition Against Cuts (at para 4.5.7), thus:

“Offers to consult…were declined. The Coalition have supplied information pertaining to their views on the home care charging proposal and these have been attached (Appendix B). The Coalition is in principle opposed to charging.”

Appendix B contained the Coalition’s campaigning leaflet. Among the points there made was that charging did not “promote disabled and older people’s equality and ability to be involved in life as equal citizens”. Appendix B also contained other material from the consultation, including a collection of responses to the consultation question: “Is there anything further the council could do to promote equality of opportunity between disabled people and other people with regard to a proposed charging policy?” Among the answers were many which said, in one form or another, that there should be no charging. Further questions to which the responses were given were: “If you do not agree that the council should charge for home care, how else do you think that the council could make sure services were provided within the limits of the resources available?” Among the suggestions here were such as “Put up Council Tax” (a common theme), “Bring in Sunday parking fees” and “Cut back on wasteful expenditure”.

Consultation responses indicated that the largest single user group that would be affected were the elderly and those with a physical disability. As for mitigating actions, the primary responses were to the effect that the Council should ensure that those who could not pay were not asked to do so, and that the charges should be reasonable. Other points strongly made were the dangers of users feeling the pressure to decline services (out of cost considerations) and that the quality of the services provided justified the charge. In this last respect, concerns were expressed about the current services. Council tax had its own sub-heading within this section: some consultees stated they would have preferred council tax to have remained as it was (without the 3% cut) rather than to reintroduce home care charging. The report observed, however, that the 3% cut decision had preceded the consultation and was not within its scope.

Section 5 was the section headed “Disability Equality Duty”, from which I have quoted extensively above and which is the focus of Mr Wolfe’s submissions. Section 7 concerned comments from the Director of Finance. He pointed out that 2008/9 was the first year of a new 3-year local government finance settlement. Under this Hammersmith and Fulham were awarded the national minimum increase of 2%, 1.75% and 1.5% for the next three years, which was below the national average formula grant of 3.5%, 2.8% and 2.6% respectively. At £12.40 per hour the charging scheme would raise some £1.28m gross in a full year, and £0.32m in the final quarter of 2008/9.

Section 8 concluded the report with “Comments from the Head of Legal Services”. This referred to HASSASSAA 1983, to the DoH Guidance (“Fairer Charging Policies”) of September 2003, to the requirements of a proper consultation, and (in para 8.5) to section 49A of the DDA 1995, which was set out in full. The Council were told that it “must be mindful of its duty” under that section. This section concluded as follows:

“8.6

Legal Services advised at a meeting with lead officers for the Community Services Department on 28 January 2008. That meeting was convened specifically to consider the s49A duty and how best to take it into account throughout the consultation period.

8.7

The obligations under this duty were taken into account during the consultation period. The obligations under this duty must also be taken into account when this report proceeds to Cabinet for a decision and a decision is made.

8.8

In the case of R (on the application of Priti Hansra Chavda etc) v Harrow an application for judicial review was successfully brought against Harrow in respect of Harrow’s decision to amend its eligibility criteria and to restrict adult social care services to those with critical needs. This was on the basis that the decision makers did not sufficiently have their attention drawn to the seriousness and extent of their duties owed under the Disability Discrimination Act 2005.

8.9.

The Disability Rights Commission’s statutory code of practice states at paragraph 2.37 that “It will not always be possible for authorities to adopt the course of action which will best promote disability equality but public authorities must ensure that they have due regard to the requirement to promote disability equality alongside other competing requirements.””

Mr Wolfe complains that no reference at all was there made to the need also to have regard to the racial and gender equality duties under the RRA 1976 and the SDA 1975.

Our attention has been drawn to a number of authorities on the need to have due regard to equality duties, in particular R (Elias) v. Secretary of State for Defence [2005] EWHC 1435 (Admin) (Elias J), [2006] EWCA Civ 1293, [2006] 1 WLR 3213, R (Chavda) v. London Borough of Harrow [2007] EWHC 3064 (Admin) (HHJ Mackie QC), R (Baker) v. Secretary of State for Communities and Local Government [2008] EWCA Civ 141, [2008] LGR 239, R (Brown) v. Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), and R (Meany, Glynn and Sanders) v. Harlow District Council [2009] EWHC 559 (Admin) (Davis J). I find the greatest help in the judgments of Dyson LJ in Baker (dealing with the RRA) at paras 30ff and of Scott Baker LJ in Brown (dealing with the DDA) at paras 89/96, where each of them summarises what is involved in the duty to have “due regard”. For present purposes I take from those summaries in particular the observations that there is no statutory duty to carry out a formal impact assessment; that the duty is to have due regard, not to achieve results or to refer in terms to the duty; that due regard does not exclude paying regard to countervailing factors, but is “the regard that is appropriate in all the circumstances”; that the test of whether a decision maker has had due regard is a test of the substance of the matter, not of mere form or box-ticking, and that the duty must be performed with vigour and with an open mind; and that it is a non-delegable duty.

No authority has been cited as being of particular relevance to the facts of our case. I note, however, that Chavda concerned the activities of councils with respect to their provision of social services. In Chavda, where Harrow restricted home care services to people with critical needs only, there was a total failure to mention the DDA duty in any of the documents produced for Harrow’s decision makers. There was no effort proactively to seek the views of the disabled or to refer to the duty in the planning stages of the consultation. There was no equality impact assessment. Harrow nevertheless submitted that it had observed its duty in substance, and had engaged in consultation and other ways with the disabled. However, what Judge Mackie considered as critical was that “There is no evidence that this legal duty and its implications were drawn to the attention of the decision-takers who should have been informed not just of the disabled as an issue but of the particular obligations which the law imposes” (at para 40). However, I cannot say that I derive any assistance from that, very different, case.

As developed in oral submissions, it became clear that Mr Wolfe’s main point, and in one sense it was a “big point”, related to the positive duty to promote disability equality and was primarily concerned with his complaint that the Council could not be said to have paid due regard to that duty in circumstances where the options which were considered were limited to imposing a charging scheme or raising the eligibility threshold. The positive duty, he submitted, required a consideration across the whole budgetary canvas: if the budget had to be balanced, it could have been done in any way, eg by forgoing the council tax reduction of 3% (estimated to reduce income on an annual basis by some £2.1m), or by reducing services elsewhere, or by imposing higher charges elsewhere. It could not, he submitted, be said that such options had been foreclosed by the budget decisions in February 2008, because this item of budgetary saving (for the last quarter of 2008/9, that is the quarter commencing 1 January 2009) was still shown as being “at risk” (see at para 8above), and that fact had been relied upon in correspondence with the Council. Thus when the claimants’ letter before action dated 10 July 2008 made complaint of a “predetermined consultation process”, Hammersmith and Fulham had replied by their letter dated 30 July 2008 pointing out, as they had done in previous correspondence as well, that the budget dispensation was contingent on the outcome of the consultation exercise, which was why the £250,000 estimated income target for a home services charging scheme in the last quarter of 2008/9 was said to be “at risk”. Therefore, submitted Mr Wolfe, the Council had failed to have regard to its positive duty because realistically it had confined itself to a narrow choice, when it should not.

In any event, it was absurd, submitted Mr Wolfe, for the PEIA to represent the alternative of charging as a positive improvement or benefit as against changing the eligibility threshold: charging was on any view a negative matter, and could only impact adversely on the disabled. Moreover, whereas the PEIA had considered the charging proposal in that positive light, the report had not even done that. The Council could not rely on what had been considered by the authors of the PEIA in circumstances where the relevant matters had not gone through into the report put before the decision makers themselves, viz the cabinet.

These were elusive submissions. Ultimately, Mr Wolfe accepted that the council tax reduction by 3% was a fixed datum, a decision which had not been challenged at the time and which could no longer be asserted now to be a component in the submission of a failure to have due regard to the Council’s positive duty. The general point was however maintained. It was put in the following way in Mr Wolfe’s grounds of appeal and written skeleton (as the appellants’ ground 3):

“The judge erred in holding that the Council had properly discharged its equality duties when it considered impacts on the protected groups on the basis that it was faced with a choice between charging users and cutting eligibility such that it evaluated the impact by reference to relative impacts of that apparent choice. Such an approach would only be permissible if the prior budget decision (which thus left the choice in question) had itself considered the impact on the protected groups.”

Ms Monaghan in her skeleton on behalf of the ECHR supported Mr Wolfe in this submission or even went beyond it, thus –

“A Report premised on the inevitability of a specific outcome cannot meet the obligation to have “due regard” to the equality objectives in the Duty at least without identifying the alternatives (which here, presumably, included not adopting the preliminary budgetary decision on the size of the adult social services budget; shifting money from other parts of the social services budget; obtaining new money through, inter alia, borrowing it by revenue increasing measures – for example, increases in the Community Charge [sc Council Tax] – to address concerns over future anticipated need.”

Before the judge Mr Wolfe had wrapped up the two submissions regarding the positive duty together, thus –

“68…He submitted that the PEIA was perverse in concluding that there would be a positive impact from charging arising from the consequential ability to maintain the current eligibility threshold for services because, he said, it was based on the false premise that those were the only two choices…The result of restricting the choice to charging or cutting services meant that the absolute impact of the proposal to charge had not been considered.”

As to that submission the judge said as follows (at para 86):

“I am not persuaded that the description of the adult care service in the budget as at January 2008 as being an area at risk affects the position. It seems to me perfectly reasonable to consider this aspect within the confines of the adult care service budget and to conclude as at June 2008 that there were only two alternatives to achieve the required savings – charging or raising the eligibility threshold. That does not seem to me to be a false premise. Although it means that the absolute impact of charging is not assessed, it is a realistic exercise in the light of the alternatives available.”

In my judgment, this is in truth a big point, but it comes forward in this case in a form which makes it impossible to grapple with. The proposal under consideration, and on which consultation was undertaken, was whether or not to adopt a charging scheme. It is not possible to say that that consultation was predetermined, and indeed there is no challenge to the consultation: therefore, as is in any event clear, the cabinet was well able to say that it would not adopt a charging scheme, nor indeed a change to the eligibility threshold, which had not even been proposed: in which case the Council would have to think again about how it was going to balance its budget. However, if that was its decision, it is also clear that there was much further thinking to be done. As it is, the budget meetings in February 2008, none of which are in issue or before us as a matter of evidence, will have looked at the options and had come to certain preliminary decisions and, in all likelihood, many final decisions too. One example of those final decisions was the decision to reduce Council Tax by 3%. It is conceded by Mr Wolfe that he cannot attack that decision, but that must be true of the very many other budget decisions as well. We just do not know the ramifications of the budgetary meetings and decision-making: those decisions have not been challenged and no evidence about them has been formulated. They simply lie in the past, as data. For all we know, the budget had to be balanced; and each department or spending area had to be capable of living within its own budget. However, we simply do not know these matters, for they have never had to be investigated.

In these circumstances, it is in my view mistaken to suggest that all possible theoretical options had to be regarded as being open and in contention in connection with the matter which came up for consideration on 16 June 2008. Decision making would become simply impossible on such a basis. One has to start somewhere, and the budget decisions which had already been taken, whether final or capable of being revisited, are not capable of being impugned in these proceedings.

I am far from saying, however, that in another case, it might not be necessary for a local authority to be able to demonstrate, as a matter of its duty to have due regard to the need to promote disability equality that it had considered, in substance and with the necessary vigour, whether it could by any means avoid a decision which was plainly going to have a negative impact on the users of existing services. However, in my judgment, the complaint that the Council failed to do that in the limited circumstances open on the occasion in question, viz on 16 June 2008, is not here sustainable.

Of course, it remained the case nevertheless that the Council had to have due regard, in the situation in which it found itself on 16 June 2008, to its disability equality duties. Since the report made plain, what was in any event a matter of inherent obviousness, that the introduction of a charging scheme would have an adverse impact on the users of home care services – subject to the mitigation afforded by a scheme which only sought charges from those who could afford to pay, and then at a reasonable rate – the Council had to consider its position seriously. There is, however, no evidence that it did not do so. On the contrary, not only had a careful consultation been carried out, in which the principled opposition to a charging scheme had been stressed and was reported on in the report to cabinet, but the report underlined in the strongest terms that this was an issue and an occasion which required the decision makers to take care before they acted. I refer for instance to a passage such as para 5.3 of the report (see at para 42 above) which stresses that the proposal upon which there had been consultation was “extremely relevant to disabled people” and that “members must give full consideration” as to how the proposal would affect disabled people.

Mr Wolfe’s alternative submissions under this heading are much smaller points on the detail of the PEIA and/or report. One is that the PEIA reference to a charging scheme having a “positive impact”, in the sense that it was preferable to a contraction in the eligibility criteria, was absurd and perverse. It does not seem to me, however, to be in the least absurd or perverse. If the eligibility criteria had been changed so that home care services would only in future be provided where the need was critical or substantial, then many users would find themselves without services which had previously been provided, even though they could not afford to obtain the halted services elsewhere and even though they would have been entitled to receive those services free even in the world of a charging scheme. This seems to me to be, as far as it goes, an entirely valid point and one which it is clear from the report was of great interest to consultees generally.

Mr Wolfe’s next submission is that the PEIA point did not even get into the report: and on that basis he says that the cabinet did not have due regard to the need to be positive, or did not carry out what is referred to as its positive duty. I do not accept this submission. The point that changing the eligibility threshold was an alternative to charging was made in the report, as was the fact that this would entail providing services “to fewer service users”; and that more consultees opted for charging than for the eligibility alternative; (see para 5.2 of the report, cited at para 42 above). It cannot be successfully suggested that that alternative to charging was not clearly before the cabinet, nor is it suggested that that would have been the preferable option but that it was the failure to put it sufficiently clearly before the cabinet that led the cabinet to fail to have due regard to it.

I would therefore reject Mr Wolfe’s ground three (ultimately his main ground of appeal) and his ground two. There remain grounds four and five.

Very much secondary to Mr Wolfe’s big point were his further submissions on the detailed language of the PEIA and the report. He submits that the PEIA found that there was a negative impact and thus the danger of indirect discrimination on users of ethnic minority background and on women users of the services, by virtue of the fact that the proportion of such users was greater than their proportion in the local community at large. In other words, apart from the general adverse impact which the PEIA and the report clearly contemplated would arise for that minority of all users who would have to pay if a charging scheme were introduced, the suggestion was that the PEIA showed up that there would also be a differential adverse impact on black/black British, Asian/ Asian British and on women. In this respect Mr Wolfe relied on the PEIA passages cited at paras 32 and 35 above. He submitted that these warnings did not make their way into the report.

The Council’s submission, made on their behalf by Mr Tim Kerr QC, was that the PEIA found no such specific differential adverse impact. I agree. The PEIA emphasised that “These potentially adverse impacts would not be related to… gender…ethnic origin…[T]here would be no group for whom a home charging policy as proposed would have a disproportionately adverse impact…This was consistent with consultation event outcomes. There was no correlation between race…gender…and the consultation questionnaire outcomes…” (see citation at para 31 above). Despite the somewhat higher percentage of black/black British or Asian/Asian British users of home care services compared with the percentage distribution of such ethnic minorities in the local population at large, nevertheless the “significantly lower mean and median average gross annual income” for people of such backgrounds meant that there would be no disproportionately adverse impact (at paras 31/32 above).

This was confirmed by the evidence of Ms Jenkinson. In her witness statement she commented as follows on the passage from the PEIA concerning race:

“The above passage is not included in the key decision report. However, as I have explained this is because I had concluded, in conjunction with the user groups with whom I worked on the PEIA, that the introduction of charging would not have a disproportionate effect on any particular racial group. Further, as stated below, I knew from the 2004 Housing Needs Survey of this borough that there is a significantly lower mean and median average annual gross income for people of Asian and black and ethnic backgrounds than white. I believe that people from ethnic minorities are therefore likely to be less likely to be in receipt of chargeable income. There was certainly no reason to believe that people from ethnic minorities would be more likely to be charged. The equalities assessment point regarding “mitigating actions would need to take this into account” in section (a) on race is intended to ensure that the implementation group take this into account in their information and communication plan. I remain firmly of this view.”

Mr Wolfe submitted that the reference to “mitigating actions” showed that a specific, differential adverse impact had been found among the borough’s ethnic minority communities. However, I see no need to regard the language of the PEIA in that way, inconsistently with its other findings and with Ms Jenkinson’s evidence. Thus, the general adverse impact for users as a whole is what led the PEIA to speak of mitigation actions: and of course it would be a matter for some thought during the later period of implementation to ensure that mitigation action would take place so that those who could not afford charging would escape the need to pay.

It is essentially the same point with regard to the position of women, under the heading of “Gender”. Thus the PEIA made the point that, although more women than men received home care (the later final PEIA gave the figures, although the draft available at the time of the 16 June 2008 meeting did not, but those figures were included at the request of consultees), nevertheless this was probably related to the fact that woman lived longer than men. As a result there were more women users of home care services, “but not disproportionately so” (see the PEIA citation at para 35 above). Again, Ms Jenkinson confirmed her understanding in her witness statement.

It is submitted nevertheless that the figures included in the later final PEIA report indicate that Ms Jenkinson had in mind a comparison between the proportion of women in the cohort of users and the proportion of women in the local population at large, and that her conclusion of no disproportionate or differential effect was simply unacceptable. However, in her evidence, on which she was not cross-examined, she made it clear that she was comparing the proportionate groups of users within the overall pool of users, not the overall population at large. At para 94(g) of her witness statement she said:

“I believe that the older female users, although greater in number than older male service users, are also likely to have a lower income. My thinking therefore was that there was no reason to believe that people from ethnic minorities or women would be more likely to be charged than men. It was not realistic to undertake the kind of research necessary which would establish the profile of the people who would actually be charged. What was clear was that what the group of people who would be charged had in common was that they would all be disabled people. We therefore concentrated on the impact on disabled people.”

In my judgment that is not unreasonable or perverse.

The judge accepted this evidence and concluded that there was no need to include these racial and gender aspects in the report. I agree. In the circumstances I do not consider that the failure to make specific mention of the racial and gender equality duties in the report is a serious flaw.

Mr Wolfe complained that no mention was made in the report, as it had been in the PEIA, of the position of carers. The PEIA had suggested that they would also suffer a negative impact (see paras 31 and 37 above). Mr Kerr submitted that this was an unpleaded matter, which only surfaced in the reply skeleton for the appeal, under the influence of the EHRC skeleton (which also raised some other matters which did not figure in Mr Wolfe’s grounds of appeal). Prima facie there is some force in Mr Wolfe’s complaint, and there is reason to suppose that the majority of carers would be women: but it is difficult to assess the weight of a point which has not been properly addressed in the material before the judge. This was at best a make-weight argument, and I do not see how, if otherwise Mr Wolfe’s arguments fail, it can show that due regard was not given overall.

In sum, like the judge, I would conclude that the Council did in substance, not just in form, have due regard to the need to eliminate discrimination and to promote equality of opportunity in relation to the relevant equality duties. The Council carried out a substantial consultation, which was part of the general exercise of paying “due regard”. It also commissioned a careful impact assessment, the essence of which was translated into the report to cabinet. Many of the criticisms previously made in these proceedings, and advanced to the judge, have dropped away. The “big point”, which assumed a relatively small part of the argument before the judge, has been developed on this appeal, but I have given my reasons for considering that the wider ramifications of this argument could not be successfully advanced on the facts of this case. Essentially, decisions which had already been taken as a part of the budgetary process, such as the decision to reduce the Council Tax, were water under the bridge. There were also substantial countervailing factors which had to be considered, such as (in the circumstances) the Council’s budgetary needs, as well as the comparison of the situation in Hammersmith and Fulham with every single other council in the country. The detailed points on the comparison of the language of the PEIA and the report, together with other such points which have not survived into the appeal, occupied much of the argument before the judge, but have taken a relative back-seat on appeal. All in all, I agree with the judge that there is no reason to find any material failure of “due regard” in the present case.

I am full of admiration and sympathy for the appellants, who attended the hearing of the appeal despite the obvious difficulties of their situations. The appellants approach the matter from the standpoint of a principled objection to the whole idea of charging. In that connection they are fully entitled to take advantage of all and any material which might indicate that the Council had not paid due regard to its equality duties. The Council was undoubtedly obliged to carry out its duties, and if it failed to do so in a material way, I would be prepared to quash its decision. Of course, what may be the ultimate merits of the difficult decision which the Council had to take, are not for the court.

I would dismiss this appeal.

I agree that this appeal fails; but I do so with very considerable misgivings because the appeal itself has had to be conducted on a highly debatable premise – that the prior decision of the local authority that council tax was to be cut by 3% had to be implemented. Once this was given, the only practical choice for social services was going to be to raise the eligibility threshold or to charge for home care. That, accordingly, was what the entire consultation and ultimate decision addressed.

Members are heavily reliant on officers for advice in taking these decisions. That makes it doubly important for officers not simply to tell members what they want to hear but to be rigorous in both inquiring and reporting to them. There are aspects of the evaluation, quoted by Rix LJ, which strike me as Panglossian – for example the ignoring of actual outcome in favour of “planned outcome” and the limiting of consequential risk to the possibility that charges would not be introduced – and parts of the report to members which present conclusions without the data needed to evaluate them.

But these lose significance against the backdrop of a predetermined budget cut. The object of this exercise was the sacrifice of free home care on the altar of a council tax reduction for which there was no legal requirement. The only real issue was how it was to be accomplished. As Rix LJ indicates, and as I respectfully agree, there is at the back of this a major question of public law: can a local authority, by tying its own fiscal hands for electoral ends, rely on the consequent budgetary deficit to modify its performance of its statutory duties? But it is not the issue before this court.

Although I have similar misgivings to those expressed by Sedley LJ, I agree that the appeal must be dismissed for the reasons given by Rix LJ.