Brown, R (on the application of) v Secretary of State for Work and Pensions

The Background to the Claim.

The local Post Office has long had a place in the affection of the British public. In rural areas in particular it is often regarded as being at the centre of the community. Announcements of Post Office closures are unpopular and most peoples’ lives have been touched in one way or another by Post Office closures. However, the advent of modern technology, the changing habits of the public and the fact that the Post Office network has made vast losses for years has made closures inevitable. This case is concerned with the duties owed to disabled people in respect of the closures proposed by the government in 2007.

Between the 1970s and 2006 some 10,500 Post Offices were closed. Since 2000 the decline in the use of Post Offices has accelerated. Some particular reasons for the downturn in use are: the government’s decision to make payments of benefits and pensions directly to banks; the ability to make car tax and TV licence payments online; the availability of stamp purchases online and from many retailers, and the shift of shopping from town centres to retail parks. The result of all this has been that the volume of transactions handled by the Post Office network declined by one third between 2000/1 and 2003/4. Between 2004 and 2006, the weekly use of Post Offices fell by 4 million. Despite government funding of £2 billion since 1999, the Post Office network was losing about £3 million a week by 2006. At that point indications were that the customer base would continue to shrink, the losses would continue to rise and that the Post Office network would become insolvent without either further massive government support, or radical changes or both.

The Office for Disability Issues, which is a part of the Department of Work and Pensions (“DWP”) estimates that there are some 10 million disabled people in the UK, including those with limiting long – standing illnesses. Of that total about 4.6 million are over state pension age and about 700,000 are children. It is estimated that one in four households has one member that is disabled. About 8 million out of a total of 10 million disabled people have difficulty in walking or climbing stairs. It goes without saying that disability comes in many different forms.

In February 2005 a National Audit Office report had noted that “vulnerable people (for example the elderly and those lacking mobility) tend to rely more heavily on Post Offices and are least able to adapt if their local Post Office closes”. The government recognised at the time that a high proportion of Post Office customers comprised elderly people, disabled people, those on low incomes and those without ready access to private transport.

Here lie the opposing tensions which have given rise to this case.

The Claimant: Mrs Judy Brown, the Claimant, lives with her husband in Old Town, Hastings, Sussex. They are both retired and live on pensions. They do not have a car and are dependent on public transport. Mrs Brown is disabled. The effect of her disability is that she cannot stand or walk for long periods without acute discomfort and pain. Nor can she carry heavy loads for long. Mrs Brown’s mother, who is 86, also lives in Hastings. She is frail and cannot get about much.

The Old Town, Hastings, is in a valley between two steep hills. It is separated from the town centre of Hastings by a hill. Old Town has a permanent population of about 6000. Many are elderly. There are several care homes in the town. With all its historic associations, tourism also thrives in the area.

Hastings used to have a number of Post Offices. There have been closures over the last 5 years. The Old Town itself has had a Post Office for centuries. Mrs Brown has used it for several services twice a week for the last eight years. In particular, Mrs Brown used the Post Office for its banking facilities, which are the only ones readily available to her in Old Town. She did so for her own banking needs and those of her immobile mother. Mrs Brown also used the Post Office for shopping by mail order and the more traditional Post Office services, such as buying stamps and sending parcels.

The Letter before claim: On 16 November 2007 an article appeared in The Hastings Observer. It said that several post offices in Sussex were to be closed, including the Post Office in Old Town Hastings. Mrs Brown and her husband made enquiries and found out that there was a consultation period about possible closures. They wrote to Mr Adam Crozier, the chief executive of Royal Mail, asking him about the procedures used to decide which Post Offices should be closed and about what criteria had been used to make the decision. They took legal advice from solicitors.

On 23 January 2008, Pierce Glynn, the solicitors acting for Mrs Brown and her husband, wrote a Letter before Claim to the Department of Work and Pensions (“DWP”), the Department of Business, Enterprise and Regulatory Reform (“DBERR”, which had replaced the DTI) and the Royal Mail Group plc, which became Royal Mail Group Ltd in 2007. (We will refer to both these companies as “RMGL”). The letter pointed out that between 2002 and 2005 there had been a significant programme of Post Office closures in urban areas, including Hastings. It stated, correctly, that on 14 December 2006 the DTI published a consultation paper proposing a further round of closures of up to 2,500 Post Offices in both urban and rural areas. The consultation period had expired on 8 March 2007. In May 2007 the DTI had published its response to this consultation process in a paper entitled “The Post Office Network”.

The letter from Pierce Glynn noted that there had been further consultation periods for particular local areas. The consultation for Sussex had been undertaken between 13 November and 24 December 2007. The Sussex consultation paper proposed the closure of 49 Post Offices in Sussex and 4 in Hastings.

The Letter before Claim continued by stating that Mrs Brown intended to make three broad areas of challenge in judicial review proceedings. All three concerned actions or alleged failures of ministers or of RMGL relating to the proposed Post Office closures in the light of the Disability Discrimination Act 1995 (“the DDA”), which had been considerably amended in 2005. We shall explain the nature of the Claimant’s complaints in more detail later on, but we should indicate briefly now the points made in the Letter before Claim, so far as they are still relevant.

Under the amended DDA, section 49A(1) imposed a general duty on all public authorities to have “due regard” to various needs concerning disabled people, with the overall aim of enhancing their position in society. Section 49D of the DDA gave the Secretary of State for Work and Pensions the power to make regulations to impose upon public authorities further specific duties to ensure the better performance by those authorities of their general duties under section 49A(1). In 2005 the Secretary of State for the Department of Work and Pensions (“SSWP”), issued regulations (Footnote: ¹) which identified a large number of public authorities and imposed on them specific duties in relation to disability. The most important of these duties, for present purposes, is the duty to publish a “Disability Equality Scheme”, (which we shall call a “DES”), in which the public authority concerned would show how it intended to fulfil its duties under section 49A(1) of the DDA and the duties imposed on it under the 2005 regulations. Schedule 1, Part 1 of the 2005 regulations listed both “a minister of the Crown or government department” and also “Royal Mail Group” as entities to which the specific duties under the 2005 regulations applied. All entities listed in Part 1 of Schedule 1 of the 2005 regulations were obliged to publish their DES by 4 December 2006.

In 2007, the SSWP made a further regulation under section 49D of the DDA. (Footnote: ²) Regulation 3(b) of the 2007 regulations purported to remove “Royal Mail Group” from the list of public authorities on which the specific duties were imposed by the 2005 regulations. The first point raised by the claimant in the Letter before Claim and made against the SSWP, was to challenge the legality of Regulation 3(b) of the 2007 regulations.

The second challenge, which was against the Secretary of State for the Department of Business, Enterprise and Regulatory Reform, (“the SSBERR”), fell into two parts. The first attacked the DES of the department’s predecessor, the DTI, (Footnote: ³) and the present department’s DES. (Footnote: ⁴) The letter alleged that neither statement contained any account, (to be developed with input from disabled people) about the department’s method of assessing the impact of its policies and practices or the likely impact of proposed policies and practices on equality for disabled people, contrary to the duty imposed by Regulation 2(3)(b) of the 2005 regulations. Furthermore, the “action plan” sections of both schemes, which identify a number of projects which would be subject to Disability Impact Assessments, did not list the Post Office closures policy as one of the policy areas in need of such an assessment. Therefore, it was asserted, the SSBERR was in breach of his duty under the 2005 regulations. Those allegations have not been in the forefront of the argument before us.

The second part of this challenge related to the fact that the DBERR had not carried out a “disability impact assessment” in relation to the current Post Office closure programme. Under section 53A(1C) of the DDA, (Footnote: ⁵) the Disability Rights Commission (“DRC”), (Footnote: ⁶) had the power to issue Codes of Practice. The Codes are intended to give practical advice to persons subject to duties by virtue of section 49A(1) and section 49D of the DDA on the performance of those duties. In 2005 the DRC produced a Code, called “The Duty to Promote Disability Equality: Statutory Code of Practice” (“the Code”). This Code was approved by the SSWP and then laid before Parliament in October 2005. It came into effect on 5 December 2005. Paragraph 2.45 and the succeeding parts of the Code set out ways of fulfilling the general duty under s.49A(1) of the DDA. It does so by reference to the specific duties imposed on public authorities that are subject to the specific duties set out in the 2005 regulations, saying that “…the key mechanisms required by the [specific duty] provide a useful framework for all authorities seeking to comply with the general duty”. Paragraph 2.48 refers to “the specific duty requirement to conduct disability equality impact assessments (“DEIA”) “for ensuring that due regard is given to disability equality in decision making and activities”.

The Letter before Claim asserted that the SSBERR had not carried out any DEIA in relation to the proposed Post Office closures. In particular it had failed to direct inquiries specifically at disabled people and had failed to take any subsequent steps required as part of a DEIA, as set out in Chapter 3 of the Code. The Letter before Claim summarises the allegation as follows (pages 8 – 9):

“Given the obvious significance of the department’s post office closure policy to a very large number of disabled people, the on – going failure to conduct a disability impact assessment is a clear breach of the department’s duties under both s.49A and the 2005 regulations”.

The third broad area covered by the letter before action concerned allegations against RMGL, which was called “the Mail” in the letter. It was said, first, that RMGL had failed to produce a DES. Secondly it had failed to carry out disability impact assessments, conduct lawful consultations in respect of the current proposals, in particular the Sussex Local Area Plan Proposal, or implement its own “Disabled Customer Policy”.

However, after RMGL had served its evidence following the permission hearing before Davis J, Pierce Glynn wrote on 30 July 2008 to Olswang, who are the solicitors for RMGL and its subsidiary, Post Office Limited, (“POL”). The 30 July letter said that the claimant no longer pursued any claim against either company. The letter stated that there were two reasons for this: first, because of the announcement by POL that there would be a new “post office outlet” in Old Town, Hastings from 1 September 2008, i.e. before the existing Post Office closed on 1 October 2008. Secondly, because the claimant accepted that any challenges concerning failures to exercise duties under section 49A(1) of the DDA (as well as any failures under the 2005 regulations and the Code) were more correctly directed at the SSBERR, rather than RMGL or POL. Therefore, all allegations against both RMGL and POL were withdrawn and removed from the Amended Claim Form which was filed on 30 July 2008.

Despite the withdrawal of the claimant’s case against both RMGL and POL, both were represented, as Interested Parties, at the hearing before us. Counsel made written and oral submissions on their behalf. The Equality and Human Rights Commission (“EHRC”), which was established by the Equality Act 2006 and which took over responsibilities from the DRC (amongst other bodies), was given leave to intervene. We had full written submissions from Miss Helen Mountfield and these were supplemented by oral submissions for which she had earlier been given permission. In our view the decision on whether to entertain oral submissions from an intervener is ordinarily best left to the court hearing the substantive application, then it can decide on what, if any, topics it wishes to hear oral submissions.

The Statutory and Regulatory provisions.

The Post Office

The Post Office Act 1969 established the Post Office Corporation as a statutory corporation. In 1986, after the telephone business of the Post Office had been hived off and privatised, the Post Office’s operations were organised into three separate businesses: letters, parcels and counters. The Postal Services Act 2000 (“the PSA 2000”) set up the current corporate structure for these three services. A holding company, Royal Mail Holdings plc, was created in March 2001. That company is wholly owned by the Crown. This holding company owns all the shares in what was Royal Mail Group plc, but which since March 2007 has been RMGL. RMGL’s principal activity is the provision of mail services across the UK. RMGL operates these services under a Licence from the Postal Services Commission, to which we refer below.

RMGL owns three significant subsidiaries, one of which is Royal Mail Investments Limited (“RMIL”). That is, itself, a holding company. RMIL owns (amongst other companies) General Logistics Systems BV (which is a European logistics company incorporated and registered in the Netherlands) and RMGL, which owns Post Office Limited. (Footnote: ⁷) The principal activity of Post Office Limited (ie. “POL”) is the operation of the network of Post Offices within the UK.

Section 1 of the PSA 2000 set up the Postal Services Commission, called “the Commission” for short in the Act, but known also as “Postcomm”. Section 5(1) of the PSA 2000 stipulates that Postcomm must exercise its functions in the manner which it considers is best calculated to further the interests of users of postal services and, wherever appropriate, by promoting effective competition between postal operators. In doing so, Postcomm “shall have regard to the interests of.…(a) individuals who are disabled or chronically sick”: see section 5(2)(a) of the PSA 2000.

Under sections 11 and 12 of the PSA 2000, Postcomm is given power to grant licences to entities to permit them to provide services. In March 2001 Postcomm granted a licence to RMGL to collect and deliver mail. Under the terms of its licence from Postcomm, RMGL is under a “universal service obligation” as to the collection and delivery of mail. RMGL’s licence therefore imposes certain obligations on it to ensure reasonable access to postal services for all, in line with the UK’s obligations under the EU Postal Services Directive (97/67/EC), as amended by 2002/39/EC and, in February 2008, by Directive 2008/6/EC. That Directive stipulates, (broadly), that there must be a universal postal service available to users of postal services throughout the UK.

Since 2002 the market in postal services has been gradually liberalised. There is now no statutory monopoly in favour of RMGL for the collection and distribution of mail. Competitors are entitled to provide a delivery service to customers. However, to date all have chosen not to incur the costs of setting up a “final mile” delivery service. Instead, competitors use the existing infrastructure of RMGL to deliver mail which they have previously collected and sorted.

POL provides and manages the Post Office network. Because of EU competition regulations and other competition requirements, POL is subject to competition over the provision of services habitually associated with Post Offices, such as TV licence payment services for the BBC (since 2006 through “Paypoint”) and the Government Card Account. Awarding these services to POL is now part of a complex relationship with the government; parties have to comply with the EC Procurement Regulations. Further, competitors of RMGL are entitled to set up their own collection and delivery networks, using “access points” other than POL Post Offices. Overall, therefore, POL is subject to competitive pressures.

Section 2 of the PSA 2000 (since replaced by provisions in the Consumers, Estate Agents and Redress Act 2007), created the Consumer Council for Postal Services, known as “Postwatch”. It was created to represent consumer interests in relation to postal services. Section 54 of the PSA 2000 requires that Postwatch, in exercising its functions, will have regard to various interests, including the interests of individuals who are disabled or chronically sick. Postwatch established a committee called the Counter Advisory Group, or “CAG”, whose aim is to promote the views, concerns and interests of all consumers, but in particular those with disabilities, the elderly, those on low incomes and people who reside in rural areas, in relation to the issues affecting the Post Office network. Its membership includes organisations such as Age Concern, Help the Aged, Public Utilities Access Forum, the RNIB and the National Consumer Council.

Disability Equality

Background: The present statutory framework concerning disability equality must be seen against the background of other equality legislation. This started with the amendment to the Race Relations Act 1976 by the Race Relations (Amendment) Act 2000 (together the “RRA”). The 2000 Act substituted a new section 71 in the RRA. That imposed on public authorities a general statutory duty to “have due regard to the need” to eliminate unlawful racial discrimination and to promote equality of opportunity and good relations between persons of different racial groups.

There is a similar type of provision in the Sex Discrimination Act 1975, i.e. section 76A. That was added by section 84(1) of the Equality Act 2006. That imposed on public authorities (with identified exceptions) a duty “to have due regard to the need” to eliminate unlawful discrimination and harassment and to promote equality of opportunity between men and women.

Historically, disability in its many forms has played regrettably little part in the thinking and decision making of public authorities. The provisions of the DDA with which this case is concerned were added by the Disability Discrimination Act 2005. (Footnote: ⁸) They are aimed at public authorities’ duties towards disabled people. The purpose of the amendments and of section 49A(1) in particular, is to achieve a change of climate. The underlying objective of the general duty under section 49A(1) of the DDA 1995 is to create a greater awareness on the part of public authorities of the need to take account of disability in all its forms and to ensure that it is brought into “the mix” as a relevant factor when decisions are taken that may affect disabled people.

However, there is, it seems to us, a notable distinction between disability and other targets of equality legislation such as race or sex, because, as we have noted, disability can be in numerous different forms. Different steps are needed to have regard to the needs of the mentally disabled from those of the physically disabled. The needs of a blind man are different from one who is deaf. Furthermore, disability comes in varying degrees

The Disability Discrimination Act 1995: The DDA 1995 defines “disability” and “disabled person” for the purposes of the DDA. Section 1(1) states: “a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long – term adverse effect on his ability to carry out normal day – to – day activities”. Section 1(2) states that a “disabled person” is one who has a disability.

The relevant sections of the DDA are set out in full in the Appendix to this judgment. In summary the position is as follows: first, section 21B of the DDA makes it unlawful for public authorities (with certain exceptions) to discriminate against a disabled person in carrying out its public authority functions. Section 21D defines what is meant by “discrimination”. In the first place, a public authority discriminates against a disabled person if, for reasons relating to that person’s disability, it treats him less favourably than it treats or would treat others without such a disability and the public authority cannot show that the treatment is justified within terms set out in the DDA: see section 21D(1). But the definition of discrimination is also enlarged by the provisions of section 21D(2) and 21E.

Secondly, section 49A(1) of the DDA imposes on public authorities a general duty with regard to disability and disabled persons. Because this section is central to the argument in this case, we repeat it here as well as setting it out in the Appendix:

“49A General Duty

(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 persons’ disabilities, even where that involves treating disabled persons more favourably that 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.

(2)

Subsection (1) is without prejudice to any obligation of a public authority to comply with any other provision of this Act.

…………….”

We will, later in this judgment, have to analyse in more detail the scope of the duty imposed on public authorities by virtue of section 49A(1). However, we note here, first, that the general duty is expressed in broad and wide ranging terms of the needs or targets to bring about a change of climate, but the section is silent as to how it should be done. Sometimes it will be possible for a public authority to meet one or more of the needs by taking particular steps; on other occasions it will not.

Secondly, we note that the duty is not to achieve the objectives or take the steps set out in paragraphs (a) to (f) of section 49A(1) as would have been the case if the words “have due regard to the need to” had been omitted. Rather, the duty on public authorities is to bring these important objectives relating to discrimination into consideration when carrying out its public functions.

Thirdly, we note that a most important component of the general duty of public authorities is that set out in section 49A(1)(d). This requires public authorities to have “due regard” to the need to take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons.

Regulations under the DDA: As we have already noted, section 49B defines a “public authority” and section 49D gives the Secretary of State the power to make regulations that impose on public authorities “such duties as the Secretary of State considers appropriate for the purpose of ensuring the better performance by that authority of its duty under section 49A”. We have already referred to the 2005 regulations. The relevant parts of those are also set out in the Appendix. The key provisions are in paragraphs 2 and 3.

Under paragraph 2 of the 2005 regulations, the public authorities listed in Schedule 1 of the regulations have to publish a Disability Equality Scheme (“DES”), showing how they intend to fulfil their duties under section 49A of the DDA and the duties set out in the 2005 regulations. The contents of the DES are prescribed by paragraph 2(3) of the 2005 regulations. The DWP and the DBERR, which are listed in Schedule 1 to the 2005 regulations, were therefore obliged to publish their departmental DES by 4 December 2006. (Footnote: ⁹) That was done by both departments.

At paragraph 7 of the DES prepared by the DBERR, (Footnote: ¹⁰) under the heading “Impact Assessment”, it states that the DBERR is “required to follow a rigorous impact assessment procedure as part of its policy making procedures”. Paragraph 7 goes on to state that the department has designed a “Toolkit for Equality Duties”. This “toolkit” would “give policy makers across the Department the tools and advice they need to decide best how to make an assessment of equality in their work. Whilst it is designed for use by all staff, it is particularly aimed at project managers”. A Toolkit for Equalities had been published by the DTI prior to December 2006, but covered race equality only. The Toolkit for Equalities was amended to deal with disability equality and was published on the DTI intranet on or shortly before 4 December 2006. This Toolkit for Equalities (“the Toolkit”) has been adapted since then. We were provided with the DBERR’s current version. (Footnote: ¹¹) The claimant has relied on parts of it, particularly the paragraphs dealing with the “focus and purpose of Equality Impact Assessment” (para 4), and “The stages of an Equality Impact Assessment” (para 6). We have reproduced the relevant parts of paragraphs 4 and 6 in the Appendix to this judgment.

The Disability Rights Commission and Equality and Human Rights Commission: We have already referred to the DRC, which was established originally as the National Disabilities Council in 1995. The DRC is now subsumed in the Equality and Human Rights Commission (“the EHRC”), which was established by section 1 of the Equality Act 2006. The EHRC became operational on 1 October 2007. It now has responsibilities for promoting the Sex Discrimination Act 1975, the Race Relations Act 1976 and the DDA. Its general function (in relation to disabled people) is to encourage and support the development of a society which promotes the potential of disabled people and mutual respect. Section 8 of the Equality Act sets out specific duties of the EHRC in relation to equality and diversity. Under section 30 of the 2006 Act, the EHRC has the power to intervene in important cases.

We have also already referred to the Statutory Code of Practice, called “The Duty to Promote Disability Equality”, which was produced by the DRC under the terms of section 53A(1C) of the DDA and published in December 2005. The relevant provisions of that Statutory Code are also set out in the Appendix to this judgment. The paragraphs referred to or relied upon are 1.42, 1.44, 2.1, 2.8, 2.33, 2.38 – 2.41, 2.43 – 2.45; 248 to 2.52, 2.66, 3.13, and 3.36 – 3.39.

The background to the SSBERR’s decision paper of May 2007: “The Post Office Network: government response to public consultation” and the aftermath to the decisions set out in that paper.

The Lead in to the Consultation Paper of December 2006: From the establishment of the corporate restructuring of the Post Office under the Postal Services Act 2000, POL lost money. In February 2005 the National Audit Office (“NAO”) reported on the Post Offices. It noted the tension between what it regarded as the vital social role of the Post Office network on the one hand and POL’s inability to sustain a commercially viable network without continued financial support by the DTI for Post Offices on the other. As already noted, the report said, in its introduction, that “vulnerable people (for example the elderly and those lacking mobility) tend to rely more heavily on post offices and are least able to adapt if their local post office closes”.

Following the report, the DBERR decided on two courses of action. First, it commissioned a detailed analysis of the Post Office network, office by office. The object was to establish levels of usage, customer and transaction profiles, costs and remuneration levels. Secondly, the DBERR established an interdepartmental working group to review and consider the current and future role and usage of the network for the provision of government services and those of associated agencies.

The detailed analysis of the network examined the purely commercial aspects of the network’s activities. It demonstrated that the network was uneconomic and could not continue without further government support. The interdepartmental working group considered the network’s importance as a means of providing services and information to the public and also the importance of the wider social role undertaken by Post Offices, particularly for disadvantaged members of society.

By December 2006 the Post Office Network in the UK, was losing £3 million a week and many million fewer people were using post offices each week, even compared with 2004. Of the total of 14,500 Post Offices in the network, only about 3,500 – 4,000 were commercially viable. It was clear that, without much further support from the Exchequer, POL, the company that owned and ran the Post Office network, would become insolvent.

The Consultation Process: On 14 December 2006 the Secretary of State for Trade and Industry announced a public consultation into the future of the Post Office network. The DTI published its consultation document “The Post Office: a Consultation Document”, in which it stated that there would have to be changes in the size of the Post Office network. At the same time it recognised the important social and economic role played by Post Offices “… particularly among the more vulnerable customer groups who rely on them as a lifeline”. (Footnote: ¹²)

The paper set out the government’s principal proposals for the future of the Post Office network. The witness statement of Mr MJ Whitehead, an Assistant Director of the Shareholder Executive within the DBERR, describes this (at paragraph 92) as “a managed restructuring of the network”, with the object of creating one that was sustainable. To achieve what was called “the Network Change Programme”, Mr Whitehead says that “it was further concluded that around 2,500 closures (offset by the introduction of 500 new outreach services) was the smallest possible reduction that would realistically create a sustainable network within the funds available”. That would provide a “core commercial network” of about 3,500 – 4,000 Post Offices and a “non – commercial network” of around 7,500 branches.

At paragraph 96 of his witness statement, Mr Whitehead explains how the government proposed that POL would make decisions on which particular Post Offices would close. The government proposed that there should be a “comprehensive set of criteria applying at national level to ensure that access to postal services continued to be available across the country with particular protection for vulnerable consumers”. The Consultation Paper proposed that the new access criteria for the national Post Office network would be based on access within a set distance of a Post Office for a certain minimum percentage of the population. In the Consultation Document access criteria are set out first on a national basis, then for deprived urban areas, then for urban areas, then for rural areas. It was also proposed that within remote areas 95% of the population of any postcode must be within 6 miles of their nearest “post office outlet”. (Footnote: ¹³)

The government proposed that these access criteria would have to be applied by POL when considering what individual Post Offices were to be closed. The Consultation Document also stated that the government would require POL to ensure that no one part of the network and no particular group of people be significantly more adversely affected than any other. (Footnote: ¹⁴) The government also proposed that the Network Change programme be implemented through a series of local consultations by POL. (Footnote: ¹⁵) Although decisions on specific closures would be for POL to take, it would be limited to a maximum of 2,500 “compensated closures” nationally. (Footnote: ¹⁶) The government intended that, in those cases, POL would have to take account of geographical impediments such as rivers, mountains, valleys, motorways and sea crossings to islands, so as to avoid undue hardship and to ensure that the principles behind the access criteria were adhered to by POL. (Footnote: ¹⁷) POL would also have to take account of the availability of public transport and alternative access to key Post Office services, the local demographic position and local economies. POL would be required to show “how these factors [had] been considered in arriving at their plans in each local consultation document”. (Footnote: ¹⁸)

Mr Whitehead also states, at paragraph 107 of his first witness statement:

“The [DBERR] proposed detailed requirements for this [i.e. the local consultation] process. These were designed to ensure that, among other things, the needs of vulnerable people, including disabled people, were at the forefront of local implementation decisions. This was to be achieved by taking account of local geography and demographics, including such factors as the suitability and accessibility of the particular post office for use by disabled persons. This reflected the overarching policy principle that a national post office network needed to be protected to ensure continuing access to services for vulnerable individuals and communities”.

The Consultation Document was circulated to many organisations which the government believed would be able to offer representative views on the impact of the proposals on disabled, elderly and vulnerable people. The DBERR therefore urged comments from (amongst others): Age Concern, Help the Aged, Mencap, the RNIB and the DRC. The DRC did not respond. We were informed by Miss Mountfield that it was, at the time, the policy of the DRC not to respond to generic consultation exercises. Responses were, however, sent by Age Concern, Citizens Advice, National Consumer Council, National Pensioners’ Convention, Postwatch and the Scottish Disability Equality Forum.

In retrospect, the failure of the DRC to respond was astonishing. It would have been an ideal opportunity to draw attention to the ambit of the duty imposed on public authorities by section 49A(1) in relation to the closure of Post Offices. It is unfortunate that the DRC chose not to make any response at that stage, yet incurred considerable expense in the current proceedings when it is too late to achieve any practical benefits.

During the consultation period of 12 weeks between 14 December 2006 and 8 March 2007, the Department received more than 2,500 responses to the consultation, over half of which were from individuals. As a result of the representations of Age Concern and others, the DBERR decided that when POL was considering the closure of individual Post Offices, it must fulfil further requirements in the local consultations, in addition to those already proposed in the December 2006 Consultation Document.

First, POL must specifically take account of “socio – economic factors” as well as the access criteria and geographical factors. (Footnote: ¹⁹) Secondly, Postwatch, which (as already noted) had a statutory duty to have regard to the interests of “individuals who are disabled or chronically sick” and those of “pensionable age”, would ensure that those groups had a formal role in the local consultation process. This led to a Memorandum of Understanding between POL and Postwatch, (“the MoU”), to which we refer again below. Thirdly, POL must have regard to particular factors when proposing particular Post Office closures and when making the final decision. These factors would include “deprivation and mobility issues (for example, local terrain, availability of public transport and local demographics)”. Fourthly, POL was required to ensure parity of treatment so that no particular group of people should be significantly more adversely affected by closures or other changes in service provision than any other. Further, no country within the UK and no group of inhabitants at the area plan level should be significantly more adversely affected than any other. (Footnote: ²⁰)

The May 2007 Decision: Having considered the representations, the SSBERR set out his decision in the paper “The Post Office Network: government response to public consultation” which was published in May 2007. This will be referred to as “the May 2007 decision”.

The main points of the decision were: (i) to provide total funding of up to £1.7 billion (subject to EC state aid clearance) in the period to 2011 to support “necessary changes to the network and put it on a more stable footing and to provide continuing support for the social network”. (ii) To introduce a new framework of “minimum access criteria to maintain a national network of Post Offices and, in particular, to protect vulnerable consumers in deprived urban, rural and remote areas”. (Footnote: ²¹) (iii) Government funding would support up to 2,500 compensated closures within the “access criteria framework” set out in the document. The closure programme would be implemented within 18 months of the summer of 2007. (iv) POL would establish new “Outreach” locations to provide access to services and the government would support about 500 of those “to mitigate the impact of the compensated closures”. (v) POL would draw up area plans for closures within this framework. POL would “in due course seek information and input from relevant parties including Postwatch, subpostmasters and local authorities as area plan proposals are developed for local public consultation”. (Footnote: ²²) (vi) Individual local area plans would be subject to a 6 week public consultation. The role of Postwatch and local authorities in the development of those proposals for closures, local consultation on them and “other changes in service provision” would be set out in the MoU signed by POL and Postwatch.

On page 18 of the paper, it states that:

“We agree that no particular part of the network and no particular group of people should be significantly more adversely affected by closures or other changes in services provision than any other. We therefore expect that POL will be making roughly similar numbers of closures in rural and urban areas. We also expect that when developing detailed area plans POL will reflect the principle that no country within the UK and no group of inhabitants at the area plan level should be significantly more adversely affected than any other”. (Footnote: ²³)

The Memorandum of Understanding: The MoU, which was not legally binding on either party, provided in paragraph 6.2 for a “Further Review” process in cases where Postwatch showed that POL had taken a decision about a particular local closure but had “not given due consideration to material evidence received during the public consultation in coming to its decision, or where evidence emerges from the consultation that the proposal for that branch does not meet [the] government’s policy requirements”. (Footnote: ²⁴) However, Postwatch did not have a veto on any POL final decision. Once a final decision was made and announced a poster would be displayed to notify customers at the branch to be closed. POL would also write to an identified list of consultees (set out in Appendix 1 to the MoU) to summarise and respond to key issues raised in representations to POL. (Footnote: ²⁵) In general the changes would be implemented four weeks after the announcement of the decision.

The Funding Agreement: At the same time as the May 2007 decision was announced, a Funding Agreement was made between the government and POL. Under this the government was committed to provide POL with funds of up to £1.7 billion in return for it carrying out the Network Change Programme in accordance with the requirements that had been settled as a result of the consultation process. Mr Whitehead states, at paragraph 117 of his first witness statement, that:

“Via this [Funding Agreement], as well as through the actions taken by the government in encouraging POL to enter into the MoU with Postwatch … the government imposed obligations upon POL that helped to ensure that sufficient measures were in place to protect the interests of vulnerable users of postal services, including those with disabilities”. (Footnote: ²⁶)

POL Area Plan for Sussex: POL announced in its Area Plan Proposal for Sussex that it proposed to close 49 Post Offices in the county. After the consultation period ended on 24 December 2007, it maintained its decision on 41 of those closures. The other eight, including the case of the Old Town Hastings Post Office, went to further reviews. At the third stage, in February 2008, Postwatch dealt with eight Post Offices in Sussex which had been identified for closure. Its main concern was the capacity of the five Post Offices in Sussex which had been identified as the “receiving branches” for the eight that were subject to the review. (Footnote: ²⁷) Postwatch provided information on the number of disabled and elderly people in each of the areas surrounding the branches it was proposed to close and those remaining branches that would receive customers from closed Post Offices. POL produced a further report dealing with the capacity issues and considering demographic data relating to disabled people and matters that were of particular concern to disabled people. (Footnote: ²⁸)

In March 2008 Postwatch stated that it was satisfied in relation to seven out of the eight proposed closures. The exception was the Old Town, Hastings branch. Ultimately POL took the decision to introduce a Post Office outlet in the Spar convenience store in Old Town. That has been open since 1 September 2008. (Footnote: ²⁹)

The Issues for decision and a brief outline of the arguments.

Before the hearing, counsel for the parties produced an Agreed List of Issues. This list is very detailed. The court produced its own suggested list of issues in an attempt to simplify matters. What we set out below draws on both lists.

The issues for decision fall into four groups or topics, which we should first identify. Topic A concerns the validity of Regulation 3(b) of the 2007 regulations, which were made by the SSWP. In respect of that topic, the claimant seeks a declaration against the SSWP that Regulation 3(b) was made ultra vires, or is invalid because it was unlawfully made. Topic B concerns the alleged actions or inactions of the SSBERR and his department which culminated in the May 2007 decision. The claimant seeks a declaration against the SSBERR that the May 2007 decision was unlawful. Topic C concerns the SSBERR’s conduct in relation to Post Office closures under the “Network Change Programme” since the May 2007 decision. The claimant seeks a declaration that the SSBERR continues to be in breach of duty under section 49A(1) of the DDA as regards Post Office closure strategy and its implementation, because the DBERR has not performed or published any disability impact assessment or equivalent exercise as regards past, current and likely future impacts of Post Office closure strategy.

In respect of each of these three topics there is a further issue concerning the relief that is sought by the claimant. This forms Topic D. It is argued on behalf of the SSWP and the SSBERR, supported by counsel for RMGL/POL, that insofar as the question of relief depends on the court’s discretion, then it should be refused. We develop all these below.

Topic A: There are four issues that arise under this topic. Issue (1): Did section 49D(1) of the DDA (together with section 14 of the Interpretation Act 1978 (Footnote: ³⁰) so far as applicable) give the SSWP the power to make Regulation 3(b), which removed “Royal Mail Group” from Schedule 1 of the 2005 regulations, which were promulgated pursuant to section 49D(1) of the DDA? Mr Goudie Q.C, for the claimant, submits that, upon the correct construction of section 49D and section 14 of the 1978 Act, it did not. Mr Swift and Mr Fordham QC, for the SSWP and RMGL/POL respectively, argue to the contrary.

Issue (2) arises on the assumption that there was vires to make Regulation 3(b). The next question is: was it made by the SSWP for an impermissible or improper purpose? This must depend (a) what is meant by “Royal Mail Group” in the 2005 and 2007 regulations and (b) on factual findings as to the actual reason for making Regulation 3(b). It must, we think, also take into account the duties imposed on the SSWP by section 49A(1) and the 2005 regulations. Mr Goudie submits that the purpose was impermissible and/or improper because the aim of making Regulation 3(b) was to ensure that RMGL and POL, as a subsidiary of RMGL, did not have to comply with the duties imposed by the 2005 regulations. Mr Swift and Mr Fordham argue that this was not the intention and that the purpose was proper.

Issue (3) also assumes that there was vires to make Regulation 3(b). The next question is: was the decision to make the Regulation irrational. Mr Goudie argues it was. Mr Swift for the SSWP argues that there was no intention in 2005 to list the entire Royal Mail Group of companies, but only RMG plc (now RMGL). There were good reasons for removing RMG plc. Therefore removal of “Royal Mail Group” cannot be irrational.

Issue (4): Was the decision to make Regulation 3(b) in breach of the SSWP’s own obligations under section 49A(1) of the DDA? Mr Goudie says that it was. Mr Swift says that the decision was made before section 49A(1) came into force so that this issue does not arise. But whether or not the decision was made after 4 December 2006, Mr Swift argues that, when making the decision, the SSWP did properly consider (a) his own obligations under section 49A(1) of the DDA; (b) the Code of Practice issued under section 53(1C) of the DDA; and (c) the DWP’s own obligations under the 2005 regulations.

Topic B: This concerns the May 2007 decision of the SSBERR. The topic covers the acts and alleged omissions of the SSBERR during the period before the May 2007 decision and the decision itself. Mr Goudie alleges four particular failures by the SSBERR. These are as follows: (1) prior to making the May 2007 decision, he acted contrary to section 49A(1) of the DDA (and/or irrationally) by failing to consider whether to carry out a disability equality impact assessment or equivalent exercise. (2) Prior to making the May 2007 decision, the SSBERR acted contrary to his duty under section 49A(1) of the DDA by failing to have regard to the DES adopted by the SSBERR to meet his own obligations under the 2005 regulations and/or the “Toolkit for Equality Duties” adapted by the SSBERR, in particular in relation to a DEIA or similar exercise. (3) Prior to making the decision, he acted contrary to his section 49A(1) duties by failing to have regard to the provisions of the Code of Practice (promulgated by the DRC under section 53A (IC) of the DDA). (4) In making his decision, the SSBERR failed to have due regard to the matters referred to in section 49A(1) and so was in breach of his duties under that section.

Mr Swift, supported by Mr Fordham, submit that there were no relevant failures by the SSBERR at any stage during the decision making process. They also submit that, even if there were, then as a matter of discretion, no declaratory relief should be given: Topic D.

Topic C: This concerns the SSBERR’s conduct in relation to the “Network Change Programme” since May 2007. It is important to recall that the claimant has withdrawn all allegations of breach of duty by POL in respect of the implementation of the Network Change Programme. In paragraph 8 of the Outline Argument for RMGL/POL their counsel, Mr Fordham Q.C. and Shaheed Fatima, record the important fact that “it is common ground that this hearing is proceeding on the basis, in particular, that POL has in substance acted compatibly with the “due regard” duty in section 49A(1) of the DDA, were such duty applicable to it”.

Therefore the focus has to be on alleged failures of the SSBERR. There are two broad issues under this topic. Issue (1) is what is the extent of the SSBERR’s responsibility for the Post Office closure programme since the May 2007 decision and how does that impinge on the duties of the SSBERR under section 49A(1) of the DDA, the 2005 regulations, the Code, the DES of the DBERR and the “Toolkit”. Mr Goudie argues that the SSBERR’s duty under section 49A(1) remains unchanged by the fact that it was POL that carried out the policy set out in the May 2007 decision. Mr Swift submits that the way in which the SSBERR fulfils the “due regard” duty will be different when it is POL that is implementing the policy in practice.

Issue (2) assumes that the SSBERR has direct responsibilities which can only be fulfilled through its own actions. Mr Goudie alleges three failures on the part of the SSBERR in relation to the way in which the Post Office closure programme has been implemented. These are: (i) he has been in breach of his duties under section 49A(1) in the manner in which the Post Office closure programme has been implemented. (ii) There was a failure to direct POL or ensure that it undertook a disability equality impact assessment or equivalent exercise in relation to the Network Change Programme, so that the SSBERR was in breach of his duty under section 49A(1). (iii) There has been a failure by the SSBERR, in relation to the Network Change Programme, to have regard to advice in the Code, the DES and the “Toolkit”, so that the SSBERR himself is in breach of his duties under section 49A(1).

Mr Goudie, supported by Miss Mountfield, submits that there may be a further issue under Topic C. This is whether the SSBERR failed to reach a proportionate or rational decision not to carry out a disability equality impact assessment or equivalent exercise. We doubt whether this raises a separate point. The fact is that no such exercise was undertaken. Either the failure was a breach of duty or not. If it was not, then there cannot have been a failure to reach a proportionate or rational decision. If it was a breach of duty, then there is no point in asking the further question.

Topic D: We asked Mr Goudie to set out in writing precisely the relief sought against each Secretary of State. This is: first, a declaration against the SSWP that Regulation 3(b) of the 2007 regulations was invalidly made or unlawfully made. Secondly, a declaration against the SSBERR that the May 2007 decision is unlawful for failing to have due regard to the duty in section 49A(1) of the DDA. Thirdly, a declaration that the SSBERR continues to be in breach of that duty in three identified respects.

Mr Swift, counsel for the Secretaries of State, submits that all the declaratory relief should be refused, for two main reasons. First, the claim for judicial review was not brought promptly, so that section 31(6) of the Supreme Court Act 1981 (Footnote: ³¹) applies and the court ought to refuse the relief sought because it would be detrimental to good administration. Secondly, and even if the claim had been made promptly, relief should be refused because it would be detrimental to good administration and pointless. In this case events have progressed. The Network Change Programme has been implemented; Post Offices (including that at Old Town, Hastings) have been closed, premises sold and sub – postmasters have moved or retired. Therefore even if the claimant makes good her cases against the Secretaries of State, the court should exercise its discretion not to grant the relief sought.

Central to the whole case are the nature and scope of the duties imposed on public authorities when they are carrying out their functions as such, under section 49A(1) of the DDA, the 2005 regulations, the Disability Equality Schemes produced under the regulations and any relevant statutory or non – statutory codes. No party argued that the nature and scope of the duty would differ between different public authorities, although, obviously, the application of the duties by a particular public authority will depend on the nature and extent of its own functions. We think that it is sensible to analyse these duties before we consider in detail the particular issues that arise for decision in this case.

The nature and scope of the duty imposed on public authorities by section 49A(1) of the DDA, the 2005 regulations and the statutory and non – statutory codes.

Duties under section 49A(1) of the DDA

There is no dispute that the aim of the 2005 amendments to the DDA is to make public authorities place disability equality for all at the centre of their organisation, policy making and functions, so as to further the important goal of the elimination of discrimination and harassment of disabled people and the promotion of equality of opportunity for them in society in general. (Footnote: ³²) This new aim (Footnote: ³³) focusing on public authorities, is to be achieved through two key sections in the new statutory provisions. First, the new section 21B of the DDA, which makes it unlawful for a public authority to discriminate against a disabled person in carrying out its functions. Secondly, by imposing on public authorities the duties set out in section 49A(1).

The section 49A(1) duties are mandatory, as is clear from the opening words of the section; public authorities “shall”, in carrying out their functions (as public authorities), “have due regard” to six “needs” which are identified in the paragraphs (a) to (f) of section 49A(1). Each “need” identifies a particular goal, which, if achieved, would further the overall goal of the legislation dealing with disability discrimination.

However, it is important to appreciate, as Dyson LJ held in relation to analogous provisions in section 71(1) of the Race Relations Act 1975, that the imposition of a duty to have “due regard” to the various identified “needs” does not impose a duty to achieve results. It is a duty to have “due regard” to the “need” to achieve the identified goals. This is a vital distinction: see R(Baker) v Sec of State for Communities and Local Government [2008] LGR 239 at paragraph 31.

What is meant by “due regard”? Dyson LJ stated, in the same paragraph in Baker, that “due regard” in the Race Relations Act provision meant the regard that is appropriate in all the particular circumstances in which the public authority concerned is carrying out its function as a public authority. The same principle applies here. There must, therefore, be a proper regard for all the goals that are set out in section 49A(1) paragraphs (a) to (f), in the context of the function that is being exercised at the time by the public authority. At the same time, 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. What the relevant countervailing factors are will depend on the function being exercised and all the circumstances that impinge upon it. Clearly, economic and practical factors will often be important. Moreover, the weight to be given to the countervailing factors is a matter for the public authority concerned, rather than the court, unless the assessment by the public authority is unreasonable or irrational: see Dyson LJ’s judgment in Baker at paragraph 34.

What about the six “needs” to which public authorities must have due regard when carrying out their functions? The “needs” identified in paragraphs (a) to (c), (e) and (f) are goals, such as the elimination of discrimination that is unlawful under the DDA, or the encouragement of participation by disabled persons in public life. So public authorities have to have a proper regard for the need to achieve those goals.

Paragraph (d) is different, however. That paragraph places on public authorities a duty to have proper regard for the need “to take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons”. The phraseology is convoluted. It does not identify a goal which is an end in itself. However, in our view the paragraph imposes a duty on public authorities to pay “due regard” to the need to take steps to do two things which are means which will assist in achieving the goals identified in the other paragraphs in section 49A(1). First, public authorities must have “due regard” to the need to take account of the fact of disabled persons’ disabilities in the context of “carrying out their functions”. Secondly, public authorities must have “due regard” to the need to recognise that this may involve treating disabled persons more favourably than others. But we emphasise that, in both cases, no duty is imposed to take steps themselves, or to achieve results. The duty is only to have “due regard to…the need to take…” the two steps we have identified. The court will only interfere if the public authority has acted outwith the scope of any reasonable public authority in the circumstances.

To do both of these things, the public authority concerned will, in our view, have to have due regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled persons’ disabilities in the context of the particular function under consideration. We emphasise once again, however, that the duty is to have due, ie. proper, regard, to “the need to take steps”.

Mr Goudie relied on comments by the Court of Appeal in R(C) v Secretary of State for Justice [2008] EWCA Civ 882. That case concerned, amongst other things, the failure of the Secretary of State for Justice to make a Race Equality Impact Assessment before bringing in changes to rules (which were laid before Parliament) for the use of physical restraint in Secure Training Centres, or “STCs”. These centres accommodate young persons who have been sentenced to custody or are remanded in custody by a court. At paragraph 39 of his judgment, Buxton LJ stated that “it was accepted that the effect of section 71(1) of the Race Relations Act 1976 (Footnote: ³⁴) was to require a race equality impact assessment (REIA) where it was proposed to change policy on a matter that might raise issues about racial equality”. The duties imposed by section 71(1) of the 1976 Act are in identical terms to those imposed by section 49A(1)(a) and (c) of the 1995 Act, as amended. Unfortunately, Buxton LJ’s judgment does not elaborate the basis for this “acceptance”.

In the Divisional Court, at [2008] EWHC 171 (Admin), Maurice Kay LJ had pointed out, at paragraph 38, that the Home Office and the Department of Constitutional Affairs had both published Race Equality Schemes. The Home Office document stated that “each new policy is the subject of a race equality impact assessment, unless the policy has no relevance to equality”. The DCA document had similar wording. Paragraph 39 of Maurice Kay LJ’s judgment continues:

“In the present case it is common ground that, when policy changes, or at least when it changes significantly, it is incumbent upon the Secretary of State to ensure that the potential discriminating impact has been assessed and considered. It is also common ground that there was no such assessment or consideration in advance of the Amendment Rules. The case for the Secretary of State is that none was required because there was no change, a fortiori no significant change of policy. We have rejected this submission when dealing with the first ground of challenge. (Footnote: ³⁵) In our judgment there plainly was a significant change of policy (see para 35 above). For this reason, we are satisfied that the failure to carry out a race equality impact assessment in advance of such changes (Elias at 274) (Footnote: ³⁶) involves a breach of duty on the part of the Secretary of State. This ground of challenge is substantiated…”.

We note several things about that paragraph. First, it appears to have been common ground in that case that the proper way to assess and consider the impact of the proposed change in the rules on race equality was by the use of a formal race equality impact assessment, as contemplated in the Race Equality Schemes of the two departments. Secondly, it was common ground that no such assessment, nor indeed any race equality assessment, had been undertaken before the new rules were introduced. Thirdly, the reference to paragraph 274 of Elias is to provide authority for the proposition that consideration of issues of race discrimination must be made before policy decisions are made. Arden LJ does not state in that paragraph that section 71(1) of the 1976 Act imposes, directly or indirectly, a duty on a public authority to undertake a formal race equality impact assessment in a form set out in a Race Equality Scheme.

Accordingly, we do not accept that either section 49A(1) in general, or section 49A(1)(d) in particular, imposes a statutory duty on public authorities requiring them to carry out a formal Disability Equality Impact Assessment when carrying out their functions. At the most it imposes a duty on a public authority to consider undertaking a DEIA, along with other means of gathering information, and to consider whether it is appropriate to have one in relation to the function or policy at issue, when it will or might have an impact on disabled persons and disability. To paraphrase the words of WB Yeats in An Irish Airman Foresees his Death, the public authority must balance all, and bring all to mind before it makes its decision on what it is going to do in carrying out the particular function or policy in question.

Subject to these qualifications, how, in practice, does the public authority fulfil its duty to have “due regard” to the identified goals that are set out in section 49A(1)? An examination of the cases to which we were referred suggests that the following general principles can be tentatively put forward. First, those in the public authority who have to take decisions that do or might affect disabled people must be made aware of their duty to have “due regard” to the identified goals: compare, in a race relations context R(Watkins – Singh) v Governing Body of Aberdare Girls’ High School [2008] EWHC 1865 at paragraph 114 per Silber J. Thus, an incomplete or erroneous appreciation of the duties will mean that “due regard” has not been given to them: see, in a race relations case, the remarks of Moses LJ in R (Kaur and Shah) v London Borough of Ealing [2008] EWHC 2062 (Admin) at paragraph 45.

Secondly, the “due regard” duty must be fulfilled before and at the time that a particular policy that will or might affect disabled people is being considered by the public authority in question. It involves a conscious approach and state of mind. On this compare, in the context of race relations: R(Elias) v Secretary of State for Defence [2006] 1 WLR 3213 at para 274 per Arden LJ. Attempts to justify a decision as being consistent with the exercise of the duty when it was not, in fact, considered before the decision, are not enough to discharge the duty: compare, in the race relations context, the remarks of Buxton LJ in R(C) v Secretary of State for Justice [2008] EWCA Civ 882 at paragraph 49.

Thirdly, the duty must be exercised in substance, with rigour and with an open mind. The duty has to be integrated within the discharge of the public functions of the authority. It is not a question of “ticking boxes”. Compare, in a race relations case the remarks of Moses LJ in R(Kaur and Shah) v London Borough of Ealing [2008] EWHC 2062 (Admin) at paragraphs 24 - 25.

However, the fact that the public authority has not mentioned specifically section 49A(1) in carrying out the particular function where it has to have “due regard” to the needs set out in the section is not determinative of whether the duty under the statute has been performed: see the judgment of Dyson LJ in Baker at paragraph 36. But it is good practice for the policy or decision maker to make reference to the provision and any code or other non – statutory guidance in all cases where section 49A(1) is in play. “In that way the [policy or] decision maker is more likely to ensure that the relevant factors are taken into account and the scope for argument as to whether the duty has been performed will be reduced”: Baker at paragraph 38.

Fourthly, the duty imposed on public authorities that are subject to the section 49A(1) duty is a non – delegable duty. The duty will always remain on the public authority charged with it. In practice another body may actually carry out practical steps to fulfil a policy stated by a public authority that is charged with the section 49A(1) duty. In those circumstances the duty to have “due regard” to the needs identified will only be fulfilled by the relevant public authority if (1) it appoints a third party that is capable of fulfilling the “due regard” duty and is willing to do so; and (2) the public authority maintains a proper supervision over the third party to ensure it carries out its “due regard” duty. Compare the remarks of Dobbs J in R (Eisai Limited) v National Instituted for Health and Clinical Excellence [2007] EWHC 1941 (Admin) at paragraphs 92 and 95.

Fifthly, (and obviously), the duty is a continuing one.

Sixthly, it is good practice for those exercising public functions in public authorities to keep an adequate record showing that they had actually considered their disability equality duties and pondered relevant questions. Proper record - keeping encourages transparency and will discipline those carrying out the relevant function to undertake their disability equality duties conscientiously. If records are not kept it may make it more difficult, evidentially, for a public authority to persuade a court that it has fulfilled the duty imposed by section 49A(1): see the remarks of Stanley Burnton J in R(Bapio Action Limited) v Secretary of State for the Home Department [2007] EWHC 199 (Admin) at paragraph 69, those of Dobbs J in R(Eisai Ltd) v NICE (supra) at 92 and 94, andthose of Moses LJ in Kaur and Shah (supra) at paragraph 25.

Duties under the 2005 regulations

Paragraph 2(1) of the 2005 regulations imposes a duty on all the public authorities listed in Schedule 1 to publish a Disability Equality Scheme (“DES”) by “the relevant publication date”. As we have already noted, in the case of the DWP and DBERR, that was 4 December 2006. Paragraph 2(1) also stipulates what the DES will contain. Thus, the duties imposed by section 49A(1) are not expanded by paragraph 2(1), save to the extent that it dictates how the public authority “intends to fulfil its section 49A(1) duty”.

Paragraph 2(3) prescribes details of what will be contained in the DES. The requirements set out in paragraph 2(3)(b),(c),(d)(iii) and (e) are of particular importance in this case, but they are in general terms. None stipulates that the DES must contain provisions requiring that Disability Equality Impact Assessments must be used in identified circumstances. None of the paragraphs expand the section 49A(1) duty itself. Rather, paragraph 2(3) of the 2005 regulation is concerned with the mechanism for the implementation of the section 49A(1) duty.

Inevitably, for public authorities such as the DWP or the DBERR, which have such varied functions, the way the DES makes a statement about the “authority’s methods of assessing the impact of its policies and practices or the likely impact of its proposed policies and practices on equality for disabled persons” will be broad and unspecific. So also will the statement of the steps that the authority proposes to take towards the fulfilment of the “due regard” duties imposed by section 49A(1) of the DDA.

Paragraph 3 of the 2005 regulations deals with the implementation of the DES that is to be produced by public authorities. Paragraph 3(1)(a) requires the public authority concerned to “take the steps which it has been required to set out in the [DES] by virtue of regulation 2(3)(c)” within three years of the publication of the DES. Paragraph 3(1)(b) requires the public authority, within the same period, to “…put into effect its arrangements, which it has been required to set out in the DES by virtue of regulation 2(3)(d) and (e)” for gathering information and making use of it. But this duty is tempered by paragraph 3(2), which is particularly important. It states that “nothing in this regulation imposes any duty on an authority where, in all the circumstances, it would be unreasonable or impractical for it to perform the duty”.

We take particular note of the opening words of paragraph 3 of the 2005 regulations. In the case of both the DWP and the DBERR, they had three years from 4 December 2006 to complete the steps which they proposed to take towards (Footnote: ³⁷)the fulfilment of their section 49A(1) duties, pursuant to paragraph 3(1)(a). They did not have to take those steps immediately from the start of that three year period. That would have been both unreasonable and impractical. Plainly, if departments showed no sign of taking any steps towards fulfilling their section 49A(1) duties as the three year period drew on, they would be in danger of being in breach of their paragraph 2(1)(c) duty. But we think it unlikely, on the face of it, that there could be any breach if the steps set out in the DES had not been fully taken within 18 months of 5 December 2006.

Equally, under paragraph 3(1)(b), public authorities have three years to put into effect the arrangements (as set out in their DES) for gathering information on the effect of its policies and practices on disabled persons (paragraph 2(1)(d)) and making use of it. We make the same point about timing of the fulfilment of this obligation as we have above in relation to the paragraph 2(1)(c) obligation.

These limitations on what obligations the DWP and DBERR had under the 2005 regulations and when they had to fulfil them are important in the context of this case. It is alleged that the departments were in breach of obligations under the 2005 regulations by virtue of what they did or did not do in the period from December 2006 until about June 2008, in other words in the first 18 months of the three year period for implementation of the DES by the departments. It seems to us, therefore, that it is, on the face of it, going to be very difficult for the claimant to succeed in demonstrating that the SSWP or the SSBERR were in breach of duties which they had three years to fulfil.

Duties under the Disability Equality Schemes of the departments.

The relevant DES is that of the DTI, which became the DBERR. The DES that the DTI published in early December 2006 describes the disability discrimination legislation and the DTI’s work in very general terms. It relates how the DTI gathers information on the effect of its policies and practices on disabled people, how it involves disabled people in its work and the issues it identifies as the most relevant and important for disabled people with whom it works. Section 7 describes how the DTI will take account of disability issues in policy making.

This last section refers to impact assessments. It states that the department has had to carry out Regulatory Impact Assessments for new policy proposals since 1998. It continues:

“[The] DTI recognises the importance of making an assessment of the impact on equality alongside this economic assessment and many policy areas now carry out this assessment as a matter of course. The better regulation team of the DTI….works with teams across the Department to ensure impact assessments are robust and meet the standards required.

[The] DTI has also designed a Toolkit for Equality Duties, which gives policymakers across the Department the tools and advice they need to decide best how to make an assessment of equality in their work. It is…particularly aimed at project managers. The toolkit takes staff through the different stages of making an assessment of impact on equality, including monitoring, consultation and publication /access to information requirements…”

Thus, in our view, the DES does not in terms require that an equality impact assessment has to be made in respect of all projects – nor could it. Whether or not to undertake one must be a decision for the project manager or other person in charge of a particular policy or function in the light of the section 49A(1) duties and all relevant other factors. If a decision was taken not to conduct an impact assessment or one was not undertaken, that could only be challenged in the courts if it was unreasonable or irrational or disproportionate, such that it must be contrary to the statutory duty of the public authority concerned under section 49A(1) of the DDA.

The first witness statement of Mr Gareth Mitchell makes some criticisms of the DES of the DBERR. (Footnote: ³⁸) We note three things about this. First, the witness statement does not suggest that the DES is in breach of any of the specific requirements set out in paragraph 2 of the 2005 regulations. Instead, it asserts that the DES is in breach of provisions of the Code issued by the DRC. Secondly, those criticisms are misplaced, because the paragraphs of the Code relied on are not prescriptive, as suggested in paragraph 36 of Mr Mitchell’s witness statement. Moreover, given the breadth of the functions of the DBERR, it is not surprising that there is no specific reference to Post Office closures. Thirdly, there is no claim for relief in relation to the DES of the DBERR, either in the amended Claim Form or in the summary of relief sought against the DBERR produced by Mr Goudie (at our request) in the course of the hearing. Therefore, these points go nowhere in any case.

The “toolkit for equality duties” of the departments.

We were shown three versions of a “toolkit for equality duties”; the current one for the DBERR, and two for the DWP. Each is on broadly similar lines. First, they explain the department’s equality duties. Secondly, they describe the nature and purpose of an Equality Impact Assessment.

In the DBERR “toolkit” it states (Footnote: ³⁹) that the DBERR “…is therefore required by law to assess the impact of all of its policies and practices, or the likely impact of its proposed polices and practices on equality of opportunity. An Equality Impact Assessment is one way of ensuring that this happens”. That is not a strictly accurate summary of the law. The duties of public authorities under section 49A(1) of the DDA do not require such an assessment to be undertaken. As already explained above, the section 49A(1)(d) duty only requires the public authorities to have due regard to the need to take steps to take account of disabled persons’ disabilities. We appreciate that paragraph 2 of the 2005 regulations does require that public authorities state, in a DES, the methods for assessing the impact of policies and practices or the likely impact of proposed policies and practices. The public authority could therefore state, in its DES, that its method of assessing the impact of its policies and practices on disabled people will be an Equality Impact Assessment. But paragraph 2 of the 2005 regulation does not expressly impose an immediate duty on public authorities to assess the impact of existing or proposed policies and practices by any specific, particular means. Such an additional duty cannot be imposed indirectly by statements in the “toolkit”, which has no statutory force at all.

The DBERR “toolkit” then gives guidance on when and how an Equality Impact Assessment should be carried out, who should be involved and what it should contain. If such an assessment is undertaken, it makes sense to follow the guidance. If the guidance is not followed, there is a risk that someone may challenge the result. But we are quite clear that the guidance itself does not, indeed cannot, impose any legal obligations on the departments on when, how or by whom an Equality Impact Assessment should be carried out.

Duties under the DRC Code of Practice.

As already noted, the Code of Practice was published under the power given to the DRC by section 53A(1C) of the DDA. We note that section 53A(4) of the DDA provides that the DRC may not issue a code of practice unless a draft has been approved by the Secretary of State and laid before Parliament and until a 40 day period has elapsed thereafter, in which either House can resolve not to approve it. Section 53A(8) provides that the failure to observe any provision of a Code of Practice does not of itself make a person liable in any proceedings. But section 53A(8A) also states:

“But if a provision of a code of practice appears to a court, tribunal or other body hearing any proceedings under Part 2,3,4 or 5A, or any proceedings relating to a relevant improvement to be relevant, it must take that provision into account”.

We are not convinced that the present proceedings for judicial review do fall within the ambit of section 53A(8A), but we will assume for the present that they do so.

The DRC’s Code of Practice is entitled: “The Duty to Promote Disability Equality”. The Code first describes the “general duty” under section 49A(1), then the specific duties under the 2005 regulations, who is subject to them and the enforcement of them. Paragraph 1.44 emphasises that the Code does not impose legal obligations and that this is not an authoritative statement of the law. In the light of our comments below, this is an important qualification.

Chapter 2 discusses in detail what public authorities “need to do to meet the general duty to promote disability equality” to fulfil the “general duty” in section 49A(1) of the DDA. Paragraphs 2.48 and 2.49 provide:

“2.48

The general duty requires public authorities to adopt a proactive approach, mainstreaming disability equality into all decisions and activities.

2.49.

The specific duty requirement to conduct impact assessments is designed to provide a mechanism for ensuring that due regard is given to disability equality in decision – making and activities. The technique of impact assessment is described in paragraphs 3.28 to 3.42”.

If paragraph 2.49 is intended to state a proposition of law, then in our view it is inaccurate. Neither section 49A(1) nor the 2005 regulations impose a specific or particular duty on public authorities to conduct impact assessments, for the reasons we have already stated. Moreover, the Code itself is not a source of law: R (Khatun) v Newham LBC [2005] QB 37 at paragraph 47 per Laws LJ. (Footnote: ⁴⁰)

Chapter 3 of the Code deals with the specific duties under the 2005 regulations. Paragraph 3.35 is more accurate when it states that the specific duties created by the 2005 regulations do not prescribe a particular method of impact assessment. But it still misses the point that there is no specific legal obligation to conduct an equality impact assessment at all.

The legislation with regard to public authorities is littered with examples of Codes of Practice offering guidance as to how their activities should be conducted. In assessing the consequences of failing to comply with a provision in a Code it is critical to ascertain whether the Code is statutory or non – statutory, whether it is intended to create binding obligations, and whether Parliament has given any indication of the result of failing to comply with the Code. On the status of this Code we were referred by Miss Mountfield to the decision of the House of Lords in R(Munjaz) v Mersey Care NHS Trust [2006] 2 AC 148. That case was concerned (amongst other things) with the status of a statutory code of guidance published by the Secretary of State under section 118 of the Mental Health Act 1983. The code contained guidance for hospitals and medical staff on the use of seclusion for detained psychiatric patients. The code required hospitals to have clear written guidelines on the use of seclusion and itself set out guidance on when seclusion should and should not be used.

Lord Bingham of Cornhill said, at paragraph 21, that the statutory code was more than mere advice. He said: “It is guidance which any hospital should consider with great care and from which it should depart only if it has cogent reasons for doing so”. Lord Hope of Craighead said, at paragraph 69, that those to whom the Code was addressed: “…must give cogent reasons if in any respect they decide not to follow it. Those reasons must be spelled out clearly, logically and convincingly. I would emphatically reject any suggestion that they have a discretion to depart from the Code as they see fit”.

In our view the status of the Code in this case is not identical to that in the Munjaz case. First, section 53A(8) of the DDA stipulates that a failure to observe any provision of the Code does not itself make any person liable in any proceedings. In short, a failure cannot, by itself, constitute a breach of duty. Secondly, although section 53A(8A) stipulates that a court hearing particular (defined) proceedings must take a provision of the Code into account if it thinks it relevant, the obligation on the court is no greater than that. The section does not lay down any particular consequences of a failure to follow a provision. Those would be a matter for the court to assess in the overall context of the failure. Thirdly, the Code itself emphasises that it is setting out “steps that will assist a public authority to comply with its general duty” (paragraph 2.45) and that those steps are “designed to assist authorities, not to prescribe a particular approach which they are obliged to take”.

We were referred to a number of other authorities on the effect of the Code. (Footnote: ⁴¹) In the light of those cases and the Munjaz case, we accept the following propositions on the status of the Code. First, a public authority must take the Code into account when considering disability equality issues. If it decides to depart from it, cogent reasons must be given and they must be convincing: see: Khatun at para 47 per Laws LJ. However, we also agree with the statement of Laws LJ in that case that there are no higher positive duties to comply with the Code, pace remarks of Dyson J in R v North Derbyshire Health Authority ex Fisher (1997) 10 Admin LR 27.

Secondly, if a breach of the general duty in section 49A(1) is alleged and it appears to a court that relevant guidance given by the Code has been ignored, departed from, misconstrued or misapplied without cogent reason, then that may be a powerful factor that leads the court to conclude that there was a breach of statutory duty by the public authority. Thirdly, it would be for the public authority to explain clearly and convincingly the reason for the lapse.

However, other than to the extent indicated above, we are quite satisfied that, as a matter of law, the Code does not itself impose further duties on public authorities in addition to those set out in section 49A(1) and the 2005 regulations.

Topic A: the validity of Regulation 3(b) of the 2007 Regulations.

Issue One: Did section 49D of the DDA (together with section 14 of the Interpretation Act 1978) give the SSWP the power to make Regulation 3(b)?

Section 49D(1) gives the SSWP the power to make regulations that impose on a public authority “such duties as the Secretary of State considers appropriate for the purposes of ensuring the better performance by that authority of its duty under section 49A(1)”. Section 49D(5) stipulates that before a regulation is made under section 49A(1) “the person making the regulations shall consult” what in 2005 was the DRC, but since the relevant sections of the Equality Act 2006 came into force in 2006, has become the EHRC.

Section 49D(1) clearly gives the Secretary of State the power to make regulations. Therefore, by virtue of section 14 of the Interpretation Act 1978, there will be an implicit power to revoke an instrument made under the power. The revocation power will be “exercisable in the same manner and subject to the same conditions” as the original power itself, unless “the contrary intention appears”. Therefore the only question that arises on this issue is whether, as a matter of construction of section 49A(1), there is a contrary intention which shows that the Secretary of State does not have power to revoke a regulation made under section 49D(1).

We are clear that there is nothing in section 49D(1), either expressly or by implication, which indicates that the Secretary of State does not have a power to revoke a regulation made pursuant to the powers given by that section. We accept that when the power in section 49D(1) has been exercised to make a regulation which imposes specific duties on a public authority, then any revocation of that regulation must be made “for the purpose of ensuring the better performance by that authority of its duty under section 49A(1)”. But this is because that purpose is a “condition or limitation” of the power to make a regulation in the first place and section 14 of the Interpretation Act 1978 requires that the power to revoke must be exercised on the same basis as the power to make the regulation in the first place. The question of whether the Secretary of State has exercised the power to revoke “in the same manner and subject to the same conditions and limitations” as the exercise of his power to make the regulation must go to the validity of the exercise of the power, rather than the very existence of the power itself to revoke. The Secretary of State can only make regulations that he considers “appropriate for the purpose of ensuring the better performance by [authorities concerned] of [their] duty under section 49A(1)”. Whether the SSWP fulfilled that requirement is considered below under Issue (4) of Topic A.

Therefore we conclude that section 49D(1), together with section 14 of the Interpretation Act 1978, do give the SSWP the power to revoke the wording of the Schedule to the 2005 regulations which identified “Royal Mail Group” as being subject to those regulations. Thus the SSWP had the power to make Regulation 3(b) of the 2007 regulations.

This appears to us to accord with common sense. The Secretary of State, in exercising his own duties under section 49A(1) ought to be able to review the status and circumstances of the public authorities that have been identified in a previous regulation that had made them subject to specific duties. The Secretary of State has to ensure that the continued subjection of an identified public authority to specific duties under existing regulations will ensure better performance by that public authority of its duties under section 49A(1). To do so he must have the power to revoke, amend or re-enact existing regulations. That must include the power to make a new regulation that declares that a public authority that was previously subject to specific duties beyond the section 49A(1) duties is no longer subject to those additional specific duties, because that would ensure the better performance by that public authority of its duties under section 49A(1).

Issue Two: Did the SSWP make Regulation 3(b) of the 2007 regulations for an impermissible or improper purpose?

In order to answer this question, it is necessary to consider two topics which involve factual matters. The first topic is: what is meant by “Royal Mail Group” in both the 2005 and 2007 regulations. That exercise of construction must be placed in the factual context in which the two regulations were made. The second topic is: what were the reasons for making Regulation 3(b) which removed the “Royal Mail Group” from the schedule to the 2005 regulation?

Meaning of “Royal Mail Group”: In 2004, when the Disability Discrimination Bill was published, the DWP also published a consultation paper called “Delivering equality for disabled people”. (Footnote: ⁴²)Paragraphs 3.19 and 3.20 of the paper state that the government intended to place certain “public bodies” under specific duties to assist them in complying with their general duty to promote disability equality. In deciding which bodies should be subject to the specific duties, the government would consider four particular factors. These were identified as being: (a) whether the body had significant direct dealings with disabled service users; (b) whether it had a significant impact on the lives of disabled people; (c) whether it was a significant employer of disabled people and (d) whether it was of sufficient size to support the proposed duties.

In the same consultation paper, the DWP stated that the government would consult a public body before placing it under specific duties by secondary legislation: see paragraph 1.12. At the time of the 2004 consultation the companies within the Royal Mail Group were not proposed to be in the list of public authorities subject to specific duties. (Footnote: ⁴³) However, when the DDA was passed, Royal Mail Group was one of the public authorities submitted to ministers on 16 June 2005 for a decision about inclusion in the proposed list of authorities that would be made subject to specific duties. After ministerial approval of the proposed list, the Royal Mail Group plc was contacted by the DWP in a letter of 4 July 2005. The letter itself has been lost. Mr EM Clift, a civil servant in the Office for Disability Issues in the DWP, has said in his first witness statement (Footnote: ⁴⁴) that it would have been on “standard terms”.

On 13 July 2005 Mr Jonathan Evans, the company secretary of Royal Mail Group plc, replied. The letter (Footnote: ⁴⁵) is clearly directed to the activities and status of that company alone, not any others within the “Royal Mail Group”. Mr Evans denied that Royal Mail Group plc was a “public authority”. He set out various factual reasons why the company should not be made subject to further proposed specific duties relating to disability equality. The company’s concluded view was that it would be “wholly inappropriate” for specific obligations to be extended to its business.

Unfortunately, no action was taken by the DWP in response to this letter. Mr Clift states (Footnote: ⁴⁶) that his predecessor has told him that he was not made aware of the letter from RMGL until after the 2005 regulations were made. Therefore, by default, “Royal Mail Group” was included in the list of public authorities set out in Part 1 of Schedule 1 of the 2005 regulation that was laid before Parliament on 25 October 2005.

With or without this factual background, we are quite satisfied that the words “Royal Mail Group” in the 2005 regulations do not mean Royal Mail Group plc plus all or even some of the direct or indirect subsidiary companies of that corporate entity. The phrase “public authority” in the 2005 regulations must have the same definition as that in section 49B(1) of the DDA. The statutory description in section 49B(1) is that it “includes any person certain of whose functions are functions of a public nature”. The phrase “person certain” appears in section 6 of the Human Rights Act 1998 when describing “public authorities”. This is in contrast to the definition of “person” in the Interpretation Act 1978, where the word is said to include “a body of persons corporate or unincorporated”. In our view, the draftsman used the expression “person certain” to emphasise the fact that the public authority must be an identifiable natural or legal person. Therefore the “public authorities listed in schedule 1” of the 2005 regulations must refer to such a legal entity that exists, that can contract and that can sue and be sued. This must be so for the simple reason that otherwise there will be no clearly identifiable person on whom to enforce the fulfilment of the general or specific duties that are imposed by section 49A(1) or the 2005 regulations.

“Royal Mail Group” is not a legal entity. It is a collective noun for a group of legal entities. In contrast, Royal Mail Group plc is a legal entity.

Mr Goudie submitted that the reference to “Royal Mail Group” in the 2005 regulations should be read in the same way as “group” in Part 15 of the Companies Act 2006, so as to embrace all companies within the “group”. Section 474 of Companies Act 2006 defines “group”, for the purposes of Part 15, as “a parent undertaking and its subsidiary undertakings”. But Part 15 is dealing with company accounts and reports only. It is not analogous to the present matter, where the DDA itself and the 2005 regulations clearly intended to identify particular legal entities and make them subject to the specific duties that were to be imposed.

Mr Goudie accepted that the meaning of “Royal Mail Group” must be the same in both the 2005 and the 2007 regulations. Therefore if, upon the true construction of Part 1 of Schedule 1 of the 2005 regulation, that phrase means “Royal Mail Group plc”, then that must be the same corporate entity that the 2007 regulation purports to remove.

Background to removal of RMG plc from the 2005 regulations: What were the reasons for de – listing RMG plc? Mr Goudie submits that the only reasons that can be considered are those set out in the Explanatory Memorandum to the 2007 regulations and a statement of a minister of the DWP to Mr Jack Straw, then Leader of the House of Commons, which explained the review of bodies subject to the specific disability equality duties.

The Explanatory Memorandum states, under the heading “Consultation”:

“7.8

Ministers also decided that, due to the changes since 2005 that have introduced full competition into the postal market, Royal Mail Group should not be subject to the specific duties. This is consistent with the approach taken for the gender equality duty through the Sex Discrimination Act 1975 (Public Authorities)(Statutory Duties) Order 2006 (S.I. 2006/2930) which comes into force on 6 April 2007”.

The ministerial statement (of Anne McGuire) reads:

“In addition, I propose removing Royal Mail, which is currently listed, form this requirement due to the changes that have been taking place in the postal market”.

Therefore, Mr Goudie submits, it is clear that the SSWP decided to remove “Royal Mail Group” from Part 1 of Schedule 1 to the 2005 regulations because the group should not be subject to the specific duties as it was now subject to “full competition in the postal market”. That, he says, is an impermissible or improper reason.

We think that it is unrealistic to look only at those two public statements. The court has to consider all the reasons put forward and then decide what were the actual reasons for the decision. The background to the decision is that Mr Evans of RMG plc had written to the DWP on 10 February 2006. That letter has also been lost, but the content can be gleaned from Mr Clift’s reply dated 1 March 2006. (Footnote: ⁴⁷) This notes Mr Evans’ argument that “Royal Mail is now in a broadly analogous position to other postal operators, and would not meet the definition of “public authority””. Mr Clift’s response said that the arguments for de-listing “Royal Mail” would be put to ministers.

The points made in Mr Evans’ letter were considered by the DWP during the spring and summer of 2006, as Mr Clift explains in his first witness statement. (Footnote: ⁴⁸) The DWP concluded that “Royal Mail Group”, which we take to mean RMG plc, was probably a “hybrid” public authority, which carried out both public and private functions. The understanding of the DWP was that, as a “hybrid” authority”, RMG plc was only subject to general or specific equality duties to the extent that acts performed by it were of a public nature.

The provision of mail services, which was the business of RMG plc/RMGL, faced competition from other postal operators from January 2006. Because those rival operators were not public authorities, they would not be subject to any general or specific equality duties under the DDA or the 2005 regulations. The DWP concluded that “while we did not think that the production of a disability equality scheme was particularly burdensome on its own, it would have ongoing effects that could be regarded as a burden and we needed to have regard to wider government policy of minimising burdens on business and the cumulative effect of regulation”. (Footnote: ⁴⁹) Moreover, it was noted that RMG plc had not been placed under specific gender equality duties nor general or specific race equality duties. This seems to us to be of some importance.

Mr Clift says in his witness statement that the question of de- listing “Royal Mail Group” was discussed between him and Marie Pye of the DRC on more than one occasion, including a meeting on 30 October 2006. His evidence, (Footnote: ⁵⁰) which is not contradicted, is that Ms Pye commented that:

“…the DRC had always been aware that there would be cases at the margins where the extent of a public authority’s public functions was unclear, and that they (ie. DRC) had thought that Royal Mail Group was in that category when they had initially proposed it for inclusion in 2005”.

Mr Clift’s evidence is that when the DWP was contemplating whether or not the “Royal Mail Group” should be de – listed, the key consideration of the department was the potential impact of its removal on disabled people. Paragraph 33 of his witness statement continues:

“……

We considered carefully the potential effect on disability equality before approaching Ministers for a decision. We bore in mind the fact that Royal Mail Group was subject to a licence condition in relation to its disabled customers, and the fact that the regulator, Postcomm, was (as a non-ministerial government department) subject to both general and specific disability equality duties and was in a good position to promote disability equality in the postal services sector and, in particular, in relation to Royal Mail’s activities under its universal service provision licence.We considered that the requirement of the licence condition to publish a statement of arrangements for disabled customers largely replicated the requirements of a disability equality scheme when applied to Royal Mail Group’s limited public functions. We concluded therefore that the combined effect of the licence condition, the general duty and the Regulator would protect disabled people’s interests and that continuing to require Royal Mail Group to maintain a disability equality scheme, given the limited nature of its public functions, would add little value over and above these other requirements and was therefore not an appropriate way of ensuring the better performance of Royal Mail Group’s duties under s 49A of the Act.

……..”.

Mr Clift has stated (Footnote: ⁵¹) that the approval of the relevant Minister in the DWP, Anne McGuire, to remove “Royal Mail Group” from the list of public authorities subject to the 2005 regulation was obtained in 22 November 2006 and “formal collective agreement” was obtained on 11 December 2006.

Impermissible or improper purpose? In these circumstances, was the decision to de – list the “Royal Mail Group”, which on our construction means RMG plc, (now RMGL), made for an impermissible or improper purpose? On the evidence before us we have concluded that it was not. The SSWP was entitled to consider two things in particular: first, the extent to which, if at all, RMG plc was a “public authority” within section 49B of the DDA. That is a question of fact and degree. No party to this hearing wishes us to make a definitive finding on the precise nature of the “public authority” status of RMGL, or of POL, although Mr Swift did accept that RMG plc/RMGL is to be regarded as a “public authority” in respect of some of its functions, for the purposes of sections 49B and 49D(1). (Footnote: ⁵²) The view taken by the DWP, that RMG plc was a “hybrid” public authority, was reasonable.

Secondly, the SSWP was entitled, indeed obliged, to consider the extent to which listing RMG plc/RMGL was “appropriate for the purpose of ensuring the better performance by that authority of its duty under section 49A(1) of the DDA”, to use the wording of section 49D(1). The SSWP was entitled to perform that task having decided the extent to which RMG plc was a public authority for the purposes of section 49A(1) and also the company’s business background and future. However, it is also clear from Mr Clift’s evidence that the key consideration of the SSWP in reaching its conclusion to de-list was the potential impact on disabled people of removal of RMG plc.

Therefore our answer to this issue is: “no”.

Issue Three: Was the decision to make Regulation 3(b) irrational?

In the light of our conclusions on Issues (1) and (2) above and the reasons for them, the answer to this question must be “no”.

Issue Four: Was the decision to make Regulation 3(b) in breach of the SSWP’s own obligations under section 49A(1) of the DDA, or the Code of Practice or the DWP’s obligations under the 2005 regulations?

Mr Clift has stated in evidence that the key consideration in giving advice to the SSWP to recommend that the “Royal Mail Group” be taken off the list in Part 1 of Schedule 1 to the 2005 regulations was that the DWP was “the part of government with policy responsibility for disability and the disability equality duty [and] the potential impact on disabled people of removal of Royal Mail Group…”. (Footnote: ⁵³) Also in evidence is the memorandum prepared by Mr Clift for ministers dated 15 November 2006. (Footnote: ⁵⁴) That made the recommendation to remove “Royal Mail Group”, as well as adding other public authorities to the existing lists in the Schedule to the 2005 regulations.

There is no specific statement in the 15 November 2006 memorandum that Mr Clift had borne in mind the duty imposed on the DWP by section 49A(1) of the DDA whilst considering which public authorities should be added to the existing list or whether “Royal Mail Group” should be removed from it. We are quite satisfied, however, given the statements in Mr Clift’s witness statements, (Footnote: ⁵⁵) the tenor of the whole of the memorandum of 15 November 2006, its reference to the DDA and to the 2004 consultation paper “Delivering Equality for disabled people”, that the SSWP did have due, i.e. proper, appropriate, regard to the “needs” set out in paragraphs (a) to (f) of section 49A(1) of the DDA when formulating his recommendation to the Secretary of State.

As we have noted, the approval of the relevant minister was obtained on 22 November 2006. We accept Mr Swift’s submission that, in practical terms, the policy of removing “Royal Mail Group” from the list was established on that date. At the time of the memorandum to ministers, (Footnote: ⁵⁶) section 49A(1) had not yet come into force. The general duties under section 49A(1) and the specific duties under the 2005 regulations only came into force on 4 December 2006. It would have been both impractical and unreasonable for Mr Clift to have written further memoranda to remind ministers that these provisions had come into force and of their duties under them. There was, in our view, no need to do so, given the tenor of the memorandum and what we know of the discussions that had taken place in the department before it was produced.

We are therefore satisfied that the Secretary of State accepted this recommendation having due regard to the matters in section 49A(1)(a) to (f) of the DDA.

Was the decision to make Regulation 3(b) in breach of the SSWP’s obligations under section 49A(1) because of a failure to consider the Code of Practice issued by the DRC under section 53A(IC) of the DDA?

As we have already noted, the Code was produced by the DRC in 2005 pursuant to section 53A(1C) of the DDA and became effective from 5 December 2005. This was about one year in advance of the general duties under section 49A(1) and the specific duties under the 2005 regulations coming into force. The SSWP was, of course, subject to all three. The evidence of Mr Clift is (Footnote: ⁵⁷) that when the advice to ministers on the 2007 regulations was being prepared, the Office for Disability Issues took account of the Code, in particular, its paragraph 3.35, which states:

“…..

3.35

The specific duties do not prescribe a particular method of impact assessment – approaches are likely to vary depending upon the nature of the public authority and the degree of relevance of the function for disabled people. Where the relevance of a function is high, this indicates the need for the authority to take particular care to be able to demonstrate that it has given due regard to the general duty in exercising that function. In these circumstances, a full impact assessment would assist in this. Where it is clear that the relevance is low, authorities may wish to have a system for identifying and recording the reasons for the decision not to move to a full impact assessment. Consideration should still be given to any small improvements which do not require a full impact assessment.

……”

Mr Clift’s evidence (Footnote: ⁵⁸) is that his office “considered that the 2007 Regulations were of high relevance to disability equality, and therefore [they] carefully considered the potential impact on disability equality of each of the aspects of the Regulations and set out these considerations in our advice to the Minister”. He accepts that, given the conclusion that the relevance of the 2007 regulations for disabled people was high, the department had to consider the recommendation at paragraph 3.35 of the Code that a full disability impact assessment would assist. That is because such an assessment would usually assist a public authority to show that it had “given due regard to the general duty” in exercising the particular function at issue.

However, he points out – and we acknowledge – that the Code does not make a full impact assessment mandatory in those circumstances. Mr Clift’s evidence (Footnote: ⁵⁹) is that his Office did, in fact, consider whether a disability equality impact assessment (amongst other impact assessments) should be undertaken in relation to the proposed 2007 regulations, albeit in the context of the DWP’s own internal guidance on impact assessments rather than the Code itself. The internal guidance had been circulated on 20 November 2006. The conclusion reached was that a disability impact assessment was not necessary, because the information regarding the potential impact on disability equality of de – listing the “Royal Mail Group” had already been fully assessed. He says: “We therefore considered that producing a separate document labelled “equality impact assessment” which repeated those considerations was not [an] appropriate or necessary use of resources”. (Footnote: ⁶⁰) We agree.

We therefore conclude that there was no failure properly to consider the Code by the SSWP.

Was the decision to make Regulation 3(b) in breach of the SSWP’s obligations under section 49A(1) because of a failure to undertake a disability equality impact assessment as required by the Disability Equality Scheme (“DES”) made by the SSWP in fulfilment of its own obligations under the 2005 regulations?

The DWP, as a government department, was subject to the specific duties imposed by the 2005 regulations. So also was the SSWP as a Minister of the Crown: see Part 1 of Schedule 1 to the 2005 regulations. Therefore both were under an obligation, by virtue of paragraph 2(1) and (4) of the 2005 regulations, to publish a DES by 4 December 2006. The DES had to show how the Secretary of State and the Department intended to fulfil its section 49A(1) duty and their duties under the 2005 regulations.

The DWP’s Disability Equality Scheme was produced on about 4 December 2006, that is after the minister had taken a decision to de – list “Royal Mail Group” on 22 November 2006. A separate DES for the DWP is not in our otherwise voluminous bundles. But we have been shown two of the Department’s “Disability and Gender Equality Schemes and Race Equality Scheme” Progress Reports. (Footnote: ⁶¹) We are told these effectively contain the DWP’s DES. The Progress Report for 2006 acknowledge that the Department has processes in place for equality impact assessments. It states that staff must complete an impact assessment to consider the impactof the proposed policy or change on race, disability and gender equality. (Footnote: ⁶²)

It is accepted on behalf of the SSWP that neither he nor his officials considered the Department’s DES in connection with the decision to de – list the “Royal Mail Group” from Part 1 of Schedule 1 to the 2005 regulations. Although we do not have the wording of the DWP’s Disability Equality Scheme, we assume that it is of a similar effect to that of the DTI which was published in early December 2006. That DES does not make disability equality impact assessments mandatory for all proposed policy changes, although it recognises the importance of making equality impact assessments.

Given that there was no mandatory requirement to perform an equality assessment, the decision on whether one should have been undertaken in relation to de – listing after a decision had been taken in principle by the Minister on 22 November must have involved a judgment by the department’s officials. Bearing in mind the circumstances set out above, we accept that there was no point in going over the same ground so as to be able to produce a document entitled “disability equality impact assessment”. In substance the work had been done.

Accordingly, we conclude that the decision not to perform a disability equality impact assessment did not amount to a breach by the SSWP of his obligations under section 49A(1) of the DDA.

Our conclusions are: (i) the SSWP had the power to make Regulation 3(b) of the 2007 Regulations: (ii) the exercise of that power was not invalid for any of the reasons advanced on behalf of the claimant. It follows that we do not need to consider the further arguments addressed to us on behalf of the SSWP (supported by RMGL and POL) that relief should not be granted in any event.

Topic B: The May 2007 decision of the SSBERR contained in the document “The Post Office Network: Government Response to Consultation”:

What has to be considered?

We have already identified the ways in which the claimant attacks the manner in which the SSBERR made the May 2007 decision. To summarise: the overall submission of Mr Goudie is that, in the work leading up to the decision, the SSBERR did not recognise that it had a duty under section 49A(1) of the DDA to have “due regard” to the needs of disabled people as set out in paragraphs (a) to (f) of that sub – section whilst preparing the policy statement set out in the May 2007 decision. As a result of this failure, the SSBERR did not carry out a disability equality impact assessment; failed to have regard to the DES, the “Toolkit” and the Code. Mr Goudie also submits that the SSBERR, in making the decision itself, failed to have due regard to the matters referred to in section 49A(1) and so was in breach of his duty under that section.

As we understand it, neither the Amended Claim Form nor the written or oral submissions of Mr Goudie attack directly the December 2006 Consultation Paper “The Post Office Network – A Consultation Document”. (Footnote: ⁶³) It is not specifically suggested that the SSBERR failed, with regard to that document, to have regard to his duties under section 49A(1) of the DDA, the duties imposed by the 2005 regulations, the DRC’s Statutory Code, the DBERR’s Disability Equality Scheme, or other guidance material relating to disability equality, such as DBERR’s “Toolkit”. Section 49A(1) and the 2005 regulations only came into force on 4 December 2006. The Department’s DES was only produced in early December 2006 and the “Toolkit” at the same time. The DRC’s Code of Practice, although published in 2005, was intended to prepare public authorities for compliance with the new provisions of the DDA and the 2005 regulations that came into force in December 2006.

There was, therefore, no statutory duty on the SSBERR under section 49A(1) or the 2005 regulations until 4 December 2006. As we have already noted, neither the Code, the DES nor the “Toolkit” can create additional duties. Therefore Mr Goudie was correct not to direct his attack on the Consultation Paper itself.

The December 2006 Consultation Paper set out proposals on national policy regarding the criteria to be used in deciding which Post Offices must remain and which should be closed. The consultation paper stated that the actual decisions relating to individual Post Offices would take place after area consultations, which would follow the publication of the government’s decisions in the light of the public consultation.

During the period from December 2006 to May 2007, the SSBERR was subject to the duties set out in section 49A(1) of the DDA and those set out in the 2005 regulations. Those duties were, of course, continuing ones. The SSBERR was also to be guided by the DRC’s Code of Conduct and the DBERR’s own DES. He would be further guided by the DBERR’s “Toolkit”.

The questions that have to be asked, therefore, are: (1) in relation to the consultation exercise and the formulation of the May 2007 decision, what did the SSBERR consider in relation to disability equality? (2) Prior to the May 2007 decision, did he breach his duties under section 49A(1) of the DDA and the 2005 regulations or act irrationally by not carrying out a disability equality impact assessment or equivalent exercise before making the May 2007 decision? (3) Prior to the decision, was there any failure in relation to (a) the DBERR’s own DES or “Toolkit”; or (b) the DRC’s Code, such that the SSBERR was in breach of his section 49A(1) duties? (4) In making the decision itself, did the SSBERR fail to have due regard to the matters referred to in section 49(1)A so as to be in breach of his duty under that section?

What did the SSBERR consider in relation to disability equality in the exercise that led to the May 2007 decision?

Mr M J Whitehead, an Assistant Director of the “Shareholder Executive” in the DBERR, states (Footnote: ⁶⁴) that the impact of the changes to the Post Office network on vulnerable (including disabled) users was one of the core considerations in the development of the Post Office network programme. He says that one of the key purposes of developing the access criteria that were proposed in the Consultation document and then adopted (with modifications) in the May 2007 decision “was to reduce the impact of what were inevitable closures on vulnerable groups”. (Footnote: ⁶⁵) He also states, at paragraph 130 of his first statement, that the department did consider whether or not to carry out a formal written disability equality impact assessment of the affect that the proposals for a significant number of closures would have on disabled people.

Paragraph 130 of Mr Whitehead’s first statement continues:

“[The department] fully recognised that proposals to restructure the post office network involving a significant number of closures, only partly mitigated by the introduction of outreach services, would impact on disabled customers together with other categories of vulnerable customers in terms both of having to use a different post office and of potentially having to travel further to access post office services”. (Footnote: ⁶⁶)

Nevertheless, the department concluded that “it was not possible to do a meaningful assessment of the effect of the proposals at a national level”. (Footnote: ⁶⁷)

Mr Whitehead also states that the “high level decision being taken by the Secretary of State would not in itself have an immediate impact on any disabled person”, whereas “the aim of a formal disability impact assessment was seen as being to ensure that policy proposals and their proposed implementation did not have the potential for discrimination against people with disabilities and to avoid any disproportionately adverse affects”. (Footnote: ⁶⁸) In the Consultation Paper the DBERR had proposed that the Network Change programme be implemented through a series of local consultations by POL. Mr Whitehead’s evidence is that the detailed requirements for that process were designed “to ensure that, among other things, the needs of vulnerable people, including disabled people, were at the forefront of local implementation decisions”. (Footnote: ⁶⁹) Individual closures, which might have a direct effect on disabled people, would be carried out after POL’s local investigations. Thus, the department reached the conclusion that:

“…the most appropriate means of ensuring proper and full consideration of the potential impact of the programme on disabled people, elderly people and other vulnerable groups was to put in place a policy and process framework (specified in the Funding Agreement put in place between the Government and POL) for local implementation which would have regard to a range of factors relevant to the impact of changes on these groups.” (Footnote: ⁷⁰)

Mr Whitehead further states that the department also considered whether to undertake a “regulatory impact assessment” or “RIA”, which assesses the impact of proposed government policy in terms of costs, benefits and risks of any proposed regulation. (Footnote: ⁷¹) A preliminary and partial draft assessment was started. The draft partial RIA referred to the social role of Post Offices in relation to “vulnerable residents”. It also mentioned that closures, particularly in rural areas, would have a greater impact on some groups, particularly the elderly, disabled and parents of young children. But the work on an RIA was not completed because there was to be no further legislation.

In his second witness statement, Mr Whitehead identifies the sources of the information which formed the basis for the DBERR’s work which led to the May 2007 Decision, in particular in relation to the effect of Post Office closures on disabled people. He cites: (i) POL’s analysis and data on customer and transaction profiles; (ii) the evidence and research base undertaken or commissioned since 2003 by Postwatch, Postcomm and the Commission for Rural Communities (“CRC”); (iii) the analysis and evidence in the 1999 White Paper on Post Office reform; (iv) the 2000 PIU Report “Counter – Revolution”; and (v) fieldwork by MORI for Postwatch and the CRC in 2005. (Footnote: ⁷²) This last study analysed post office usage in rural and urban deprived areas by age, gender, disability, carer role, social class, frequency of visits and impact of closure. The impact of closure was found to be greatest on those over 65, those with disabilities, those on lower incomes and in rural areas in particular, female customers and carers.

Did the SSBERR fail to fulfil his duties under section 49A(1), or act irrationally, by failing, prior to the May 2007 decision, to carry out a disability equality impact assessment or equivalent exercise?

Mr Goudie emphasises the fact that the SSBERR accepts that he did not, in terms, consider section 49A(1) when formulating the May 2007 decision. However, it does not follow that the SSBERR was therefore in breach of his “due regard” duties under section 49A(1) of the DDA. Compliance with the duty is a question of substance, not form. We have to look at the evidence overall.

We have concluded that the SSBERR was not in breach of his section 49A(1) duty in not carrying out a DEIA or equivalent exercise. This is for the following reasons: first, as we have already stated, the duty under section 49A(1) is to have “due regard” to the six needs identified in paragraphs (a) to (f). None of those paragraphs specifically imposes a duty of carrying out a disability equality impact assessment in relation to a proposed particular policy of the public authority concerned. The amended Claim Form expressly recognises that section 49A(1) of the DDA does not require that a formal disability equality impact assessment be performed. We have also already noted that the 2005 regulations do not widen the scope of the duties imposed by section 49A(1) of the DDA. The regulation is concerned with how those duties are to be implemented.

Secondly, we accept that in order for the SSBERR to be able to have proper regard to the need to take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons, (paragraph (d)), he has to consider what information he has and what further information that he may need in order to be able to have such “due regard”. We accept also that a disability equality impact assessment is recommended in the Code and the DES as the method for obtaining this information, in appropriate circumstances.

However, on the evidence which we have summarised above, it is clear to us that the SSBERR did, in substance, have proper regard to the needs set out in paragraphs (a) to (f) of section 49A(1) of the DDA. In particular, we are satisfied that he did, in substance, have regard to the need identified in paragraph (d). The evidence (which we accept) is that the DBERR did indeed consider whether or not to carry out a formal DEIA. The SSBERR had all the other information which we have identified above when considering the overall policy to close 2500 Post Offices. The conclusion that a formal DEIA would not have assisted in the formulation of national, as opposed to local, policies on closures was, in the circumstances, a reasonable and rational one.

Thirdly, the evidence shows, in our view, that the SSBERR considered a great deal of information in relation to disability equality in the course of the exercise that led to the May 2007 decision, as is clear from the preceding paragraphs and from the paragraphs below. Accordingly, we conclude that the SSBERR fulfilled his duties under section 49(1)A of the DDA, despite the lack of a disability equality impact assessment or equivalent exercise before the May 2007 decision. We also conclude that he did not act irrationally by not conducting a DEIA.

Did the SSBERR fail to fulfil his duties under section 49A(1) of the DDA by failing, prior to the May 2007 decision, (a) to have regard to the DES, adopted by the SSBERR to meet his own obligations under the 2005 regulations, and/or (b) the “Toolkit for Equality Duties”?

The theme of Mr Goudie’s submissions is that the DTI’s own DES emphasised the requirement of government departments to follow a rigorous impact assessment procedure as part of its policy making process, (Footnote: ⁷³) yet this was not followed. But, as we have already pointed out, the DES does not require that a formal equality impact assessment has to be made in respect of all projects or decisions – nor could it. The same applies to the “toolkit”.

In the light of our conclusions on the scope of the duties imposed by the 2005 regulations (under which the DES was promulgated) and our conclusions under (3) above, we must conclude that this point adds nothing to Mr Goudie’s case. Either there was a breach of the duty under section 49A(1), paragraph (d) in particular, or there was not. The DES and the “toolkit” do not add additional statutory duties.

Did the SSBERR fail to fulfil his duties under section 49A(1) of the DDA by failing, prior to the May 2007 decision, to have regard to the provisions of the Code of Practice promulgated by the DRC?

As we have already noted, if it appears that relevant guidance given in the Code has been ignored, departed from or misapplied without cogent reason, that may be a powerful factor that would lead a court to conclude that there was a breach of duty under section 49A(1) of the DDA. We have also noted that the Code is not accurate in suggesting (at paragraph 2.49) that there is a “specific duty requirement” to conduct impact assessments.

Mr Goudie submits that, without cogent reasons, the SSBERR ignored, misapplied or misconstrued paragraph 2.45 of the Code, (Footnote: ⁷⁴) in that it failed to make any kind of impact assessment; failed to gather and analyse evidence, did not involve disabled people and did not “prioritise remedial actions” prior to the May 2007 decision. He submits that these failures demonstrate a breach of the primary duty under section 49A(1).

We do not accept this submission. First, it is clear from the material that we have referred to above that a wealth of evidence on the possible impact of Post Office closures, particularly on “vulnerable” or disabled people, was in the hands of the DBERR by the time the decision was taken in May 2007. The SSBERR specifically consulted the DRC, MENCAP, the Royal National Institute for the Blind, Age Concern, Help the Aged and equivalent Scottish and Northern Irish organisations. In addition to the material that we have already referred to under section (2) above, the department had the advice and reports of Postwatch and the Postcomm Annual Report for 2007, which expressly referred to the Postwatch reports on issues concerning Post Office closures and disabled people. (Footnote: ⁷⁵)

Secondly, by consulting the organisations it did, the SSBERR did involve disabled people. As we have already emphasised, it is both remarkable and most unfortunate that the DRC did not respond on their behalf, particularly given the importance of changing the attitude of public bodies and the public towards disabled people. However, disabled people were involved via Postwatch, with its specific brief to have regard to the interests of disabled people, particularly through the committee called “CAG”.

Thirdly, the department did consider the extent to which it could make an assessment of the immediate practical effect on disabled people of the general policy proposals on closures in the May 2007 decision. (Footnote: ⁷⁶) It concluded that this was not possible, except in the most general way. (Footnote: ⁷⁷) It is not simply a matter of whether the DES, the Code and “toolkit” boxes have been ticked in order to decide whether the SSBERR fulfilled his duties. It is necessary to look more broadly at what was, or was not, done.

Fourthly, the May 2007 decision did “prioritise remedial actions” in the sense that it set out national “minimum access” criteria and dictated that there must be local consultations on closures which would have had to have disabled people particularly in mind. When undertaking the local consultations, the department instructed POL that it must take account of local conditions including public transport, terrain and the local demographic situation, which would inevitably include disabled people.

Did the SSBERR fail to fulfil his duties under section 49A(1) of the DDA in making his May 2007 decision?

The essence of Mr Goudie’s submission on this part of his case is that the May 2007 decision itself failed to have “due regard” to the “needs” set out in section 49A(1). He does not attack the decision to close 2,500 Post Offices as such. But he does submit that the decision to introduce a new “framework of minimum access criteria” based essentially on distance from Post Offices, did not have “due regard” to all the section 49A(1) “needs”, in particular the “need to take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons” under paragraph (d). Mr Goudie emphasises, once again, the facts that there is no reference in the Decision Document to the section 49A(1) duties, nor to the DBERR’s DES, nor the Code nor the “toolkit”.

The fact that there are no such references means that the SSBERR starts at a disadvantage in his attempt to demonstrate to the court that the section 49A(1) duties have been discharged. But it is not a fatal flaw. We accept the submission of Mr Swift that the position of disabled people, whilst by definition important, could not so dominate as to produce an unacceptable disadvantage to other groups. There had to be proper regard for the needs of disabled people and their position, but not to the exclusion of other relevant factors, of which economic reality and practicality are the most important.

Having said that, we note the following: first, that the use of the word “vulnerable” in the Decision document was intended and, we conclude, did refer to disabled people, as well as the elderly and socially excluded, as it had done in the Consultation Document. (Footnote: ⁷⁸) Secondly, we accept that in framing the national minimum access criteria that were imposed by the Decision document, a particular aim of the SSBERR was to “protect vulnerable consumers in deprived urban, rural and remote areas”. (Footnote: ⁷⁹) The Indices of Multiple Deprivation, which are used to determine whether an area is to be characterised as “urban deprived”, give specific weight to disability factors and there is a close correlation between disability and deprivation. (Footnote: ⁸⁰) We recognise that the IMD are not perfect as a tool and in some areas in SE England there may be a higher proportion of disabled people in districts which are not deprived. That does not alter its general utility.

Thirdly, we accept that the requirement in the Decision that POL must consider local conditions when deciding on individual Post Office closures was designed to ensure that vulnerable people, including disabled people were at the forefront of local implementation decisions. (Footnote: ⁸¹) Fourthly, we accept that the stipulation that no one group should be significantly more adversely affected by closures or changes in service provision or another was intended to ensure that the needs of vulnerable, including disabled people would be properly taken into account and would not be overwhelmed by the issues raised by other groups. (Footnote: ⁸²) Fifthly, the requirement that POL must involve “Postwatch”, (with its particular statutory duty to have regard to the interests of those who are disabled and chronically sick), in the local consultations for closures would ensure that the needs of those groups would be borne in mind.

Lastly, we note that the SSBERR pledged a £150 million Network Subsidy Payment to fund a non – commercial network of about 7,500 Post Offices, in addition to the 3,500 – 4,000 branches that were commercially viable. This support was for both rural and urban branches, thereby helping to meet the needs of disabled persons in their communities.

Taking into account all these factors, we have concluded that in substance the SSBERR did have proper regard for the “needs” set out in section 49A(1), in particular in paragraph (d), when taking the May 2007 decision. Nothing of substance would have been added if, in the Decision Document, there had been a specific statement that the Secretary of State had had proper regard to those factors, or the Code or the 2005 regulations. However, if something like that had been said, it would at least have expressly stated that which we have found to be the case. It might even have made this litigation less likely. We reiterate the remark of Dyson LJ in the Baker case that it is good practice for the policy or decision maker to make reference to the statutory provisions and any Code or non – statutory guidance in all cases where section 49A(1) is in play. “In that way”, as Dyson LJ said “the decision maker is more likely to ensure that the relevant factors are taken into account and the scope for argument as to whether the duty has been performed will be reduced”. (Footnote: ⁸³)

Topic C: The SSBERR’s conduct in relation to the Network Change Programme since May 2007.

Issue One: We have already identified the two issues that have to be considered under this topic. The first one falls into two parts. The first aspect is a question of fact: what was the extent of the SSBERR’s responsibility for the Post Office closure programme after the May 2007 Decision? The second aspect is: how does the extent of that responsibility impinge (if at all) on the SSBERR’s duties under section 49A(1), the Code, the DES and the DBERR’s “toolkit”.

What has been the involvement of the SSBERR in implementing the Network Change Programme since the May 2007 Decision?

The May 2007 Decision of the SSBERR stipulated that the Network Change Programme of Post Office closures would be implemented by POL, which operated the Post Offices. The Decision required POL to “seek information and input from relevant parties, including Postwatch”. (Footnote: ⁸⁴) That requirement led to the MOU between POL and Postwatch, which set out the manner in which POL and Postwatch would carry out the local area consultations and decisions.

The evidence of Mr Whitehead is that the SSBERR deliberately adopted this structure because it was “considered to be the most appropriate way of ensuring that the government’s intentions were properly implemented at a local level and that the particular needs and concerns of local populations were taken into account in determining which Post Offices to close”. (Footnote: ⁸⁵) He also states that the impact of the Network Change programme has been monitored by the DBERR. During the operation of the Network Change Programme there have been monthly working group meetings between DBERR officials and POL and a quarterly Project Board meeting of senior representatives from the DBERR and POL. These arrangements will carry on until the programme is complete. The monthly “scorecard” produced by POL contains a number of “indicators”, which include POL’s progress in improving accessibility for disabled customers and the increase in capacity of remaining Post Offices which are taking the business of those that are intended to be closed. (Footnote: ⁸⁶)

Mr Whitehead also states that the reports from POL have indicated that it has taken extensive measures to assess the impact of specific closures on disabled and vulnerable users in developing each area plan and each individual closure proposal. His evidence is that:

“The impact on vulnerable customers, in particular the elderly and disabled, is usually the key factor in making these changes and in our view this demonstrates POL’s openness to reconsider proposals against new or further information put forward during the local public consultation process”. (Footnote: ⁸⁷)

Does the fact that it is POL that has carried out the Network Change Programme have any effect on the duties of the SSBERR under section 49(1)A, the 2005 regulations, the Code and the “toolkit”?

We appreciate that the claimant criticises heavily the May 2007 decision itself, which is the subject of Topic B above. However, if it was intended to make any criticism of the decision of the SSBERR that POL, as opposed to any other body, should undertake the detailed working out of the Network Change Programme, it was misplaced. POL operates the Post Office network. It is clearly in the best position to assess the impact of individual closures and to implement the programme.

We have already stated that where a public authority which is subject to the duty under section 49A(1) delegates the performance of a policy or a programme that it has promulgated, the public authority itself cannot delegate its section 49A(1) duty. But the nature of what the public authority has to do to fulfil its “due regard” duty may well change. In this case, we have concluded that the SSBERR’s duty in this situation had two aspects. First, it was duty bound to ensure that POL was capable of carrying out the “due regard” duty in implementing the Network Change Programme and that it was willing to do so. Secondly, the SSBERR had to supervise POL in this respect to ensure that the duty was being carried out in practice.

If and to the extent that any further duties are placed on the SSBERR by the 2005 regulations, the Code and the “toolkit”, which we will not go into again, the same principles must apply if the SSBERR delegates the performance or implementation of policy or a programme to a third party such as POL in the case of the Network Changes Programme.

Issue Two: To recall: there are three suggested failures by the SSBERR: (1) a breach of duty under section 49A(1) in the manner in which the Post Office closure programme has been implemented. (2) A failure to direct POL or ensure that it undertook a disability equality impact assessment or equivalent in relation to the Network Change Programme, in breach of the section 49A(1) duty. (3) A failure to have regard to the advice in the Code, the DES and the “toolkit”, in relation to the implementation of the Network Change Programme.

Given our view on the nature of the duties imposed on the SSBERR in relation to the implementation of the Network Change Programme, it is necessary first to consider the evidence about POL’s attitude and actions concerning its section 49A(1) duty concerning the Network Change Programme. There is clear evidence that POL is and was in 2007 very well aware of disability issues and its need to respond to them. (Footnote: ⁸⁸) Mr Gittens, the Head of Corporate Responsibility and Diversity at POL, states in his evidence that early in the implementation of the Network Change Programme, (ie. August and September 2007), the issue of whether disability equality impact assessments for the programme was raised by Kay Allen, the Head of Social Inclusion at the Royal Mail Group of Companies. There were discussions thereafter. (Footnote: ⁸⁹)

Whether or not POL is a “public authority” for the purposes of the DDA and the 2005 regulations, the evidence served by POL demonstrates that it was fully aware of the “needs” identified in the paragraphs of section 49A(1) of the DDA and that it did have “due regard” to them in the course of carrying out the Network Changes Programme. Therefore, we agree with counsel for POL that it is unsurprising that the claims in relation to POL were all abandoned once this evidence was served.

Having considered the work on disability that the programme would undertake and the information that would be obtained as a result, Mr Gittens took the decision that there should not be a formal disability impact assessment. In his witness statement he says:

“I considered that it would have been wholly artificial and served no real purpose to have these matters considered separately (and at prohibitively substantial expense and at the risk of an unacceptable delay) in a discrete impact assessment. They were being sensibly assessed as part of the broader decision making within the Programme”. (Footnote: ⁹⁰)

We must proceed on the basis that it is now common ground that POL has, in substance, acted in a manner that is compatible with the “due regard” duty in section 49A(1) of the DDA, always assuming that such a duty is owed by it. On that basis, in our view there is no room for any claim that the SSBERR was in breach of any duty under section 49A(1) in connection with the implementation of the Network Changes Programme in any of the three ways suggested by Mr Goudie. The job of the SSBERR was to oversee the implementation of the Network Changes Programme by POL and to ensure that POL took due regard of the needs as set out in section 49A(1). The claimant accepts that POL was not failing in its duty (whether under section49A(1), or the Code, (or, if relevant, the 2005 regulations, DES and “toolkit”) by not undertaking a disability equality impact assessment or equivalent in relation to the Network Change Programme. If so, there cannot have been any failure by the SSBERR in supervising POL.

Conclusions on substantive claims

For the reasons we have set out, we conclude that:

Topic D: Relief.

In the light of our conclusions no question of relief arises. We do, however, make the following observations. This was a very late claim for judicial review. CPR 54.5(1) provides that a claim form must be filed promptly and in any event not later than 3 months after the grounds to make the claim first arose. It was 6 months before this claim was launched i.e. not until another 3 months had passed from the long-stop date under the rules. It is true that the claim was allowed to proceed notwithstanding the delay. The court is inclined to grant such an indulgence where there is an allegation of continuing unlawfulness or where the interests of others apart from the claimant may be affected by the court’s decision. However, the delay is relevant again when the court comes to consider exercising its discretion whether or not to grant relief.

Section 31(6)(g) of the Supreme Court Act 1981 provides that where the court considers there has been undue delay in making an application for judicial review it may refuse to grant any relief sought on the application if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

When the hearing commenced we expressed concern about the practical benefit to the claimant or anyone else should the claim proceed.

Had we concluded that the SSWP had no power to make Regulation 3(b) of the 2007 regulations it is likely that we would have granted a declaration to that effect. If a court concludes that a minister has acted without having the power to do so it will ordinarily say so. Other considerations would, however, apply if the power to make regulation 3(b) was exercised in an unlawful manner. RMGL has been acting for 18 months on the assumption that it is not subject to the 2005 regulations. It is far too late to put the clock back. At this point the delay in making the claim against the SSWP becomes very relevant in the exercise of discretion. Had there been a viable claim, good administration dictates that it should have been launched promptly and followed by an expedited hearing; so that any unlawfulness could then have been rectified promptly.

Similar considerations apply to the claims against the SSBERR. The May 2007 decision was taken 18 months ago. The Network Change Programme is now nearly complete throughout the UK as a whole. (Footnote: ⁹¹) The programme is complete in Sussex.

The claimant has stated that she does not ask that the May 2007 decision be set aside. However, we accept the submission of Mr Swift that the effect of a declaration that the SSBERR’s decision was unlawful would, effectively, be inviting him to reconsider in principle a decision taken 18 months ago which has now largely been implemented on the ground. In our view, such a declaration would be detrimental to good administration and is wildly impractical.

We also find it difficult to see what possible practical use could be served by a declaration that the SSBERR continues to be in breach of the section 49A(1) duty with regard to the implementation of the Network Change Programme now that it has been virtually completed. What has happened cannot be undone. Post Offices have closed pursuant to POL’s decisions after consultations; sub – postmasters have moved or retired; alternative arrangements have been put in place; funds have been allocated and have been used. Any declaration would not have served any useful purpose.

This case required the court to look at a large amount of material, as we hope is obvious from the judgment. We make no complaint about that. But, unfortunately, the organisation of the files for the hearing made the preparation of this judgment much more difficult. It would have been more helpful to have had a chronological bundle (of one or more volumes) of contemporaneous correspondence, properly indexed, a bundle for the statutory Code, the “toolkits” and all the relevant Disability Equality Schemes, a bundle for the statements and a bundle of relevant legislation and authorities. Although a Core Bundle was produced, it did not have the key documents (and those only) in it. We would draw attention to the comments of Sir Igor Judge P (as he then was) in Mustafa (orse Abu Hamza) v Government of the United States of America and others [2008] 1 WR 2760 at 2761 (para 76). In the future, in large cases such as this one, it may be helpful for there to be a short directions hearing to discuss the organisation of bundles once it is known what material is intended to lay before the court.

We are, however, very grateful to counsel for their helpful submissions, both oral and in writing.

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 persons’ disabilities, even where that involves treating disabled persons more favourably that 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.

Subsection (1) is without prejudice to any obligation of a public authority to comply with any other provision of this Act.

The Secretary of State may by regulations impose on a public authority … such duties as the Secretary of State considers appropriate for the purpose of ensuring the better performance by that authority of its duty under section 49A(1) … .

Before making regulations under any of subsections (1) to (4), the person making the regulations shall consult the Commission for Equality and Human Rights.

Preparation and publication of a Disability Equality Scheme

A public authority listed in Schedule 1 shall, on or before the relevant publication date, publish a Disability Equality Scheme (“Scheme”), that is, a scheme showing how it intends to fulfil its section 49A(1) duty and its duties under these Regulations.

Such an authority shall involve in the development of the Scheme disabled people who appear to that authority to have an interest in the way it carries out its functions.

A Scheme shall include a statement of--

Such an authority shall review its Scheme and publish a revised Scheme—

Such an authority may comply with the duty to publish under paragraph (1) or (4) by setting out its Scheme as part of another published document or within a number of other published documents.

In this regulation, “the relevant publication date” means—

A public authority listed in Schedule 1 shall within the period of three years beginning with the date when a Scheme prepared for the purposes of regulation 2 is published—

Nothing in this regulation imposes any duty on an authority where, in all the circumstances, it would be unreasonable or impracticable for it to perform the duty.

--

A public authority listed in Schedule 1 shall publish a report—

not later than the end of the period of one year beginning with the date of publication of its first Scheme; and

subsequently at intervals of not more than one year beginning with the date of publication of the last report.

The DDA 1995 made provision for a Code of Practice at s 53A. The relevant provisions are now found at ss 14 and 15(4) of the Equality Act 2006.

14(1) The Commission may issue a code of practice in connection with a mater addressed by any of the following—

…

(d)

Parts 2 to 4 and 5A of the Disability Discrimination Act 1995

…

15(4) A failure to comply with a provision of a code shall not of itself make a person liable to criminal or civil proceedings; but a code—

(a)

shall be admissible in evidence in a criminal or civil proceedings, and

(b)

shall be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant.”