Boyejo & Ors, R (on the application of) v Barnet London Borough Council

On the 8 June 2009 the Cabinet of Barnet London Borough Council (Barnet) resolved to change the way it provided support services to those living in sheltered accommodation in its area by terminating contracts for on-site warden based services and developing a peripatetic support service with the retention of an alarm service to all residents in such accommodation.

On 30 July 2009 the Cabinet member of Portsmouth City Council (Portsmouth) responsible for housing decided to terminate the provision for sleep in night time staff at each of its category 2.5 sheltered housing schemes and to introduce instead a mobile night service. That category provides for the highest level of sheltered support to about 346 properties. The decision was approved by Portsmouth’s Scrutiny Committee on 14 August 2009.

In two separate challenges by way of judicial review (which I refer to by the names of the defendant) those decisions and the processes which led to them are challenged by residents in the accommodation affected. In the Barnet case there are five claimants, two of whom are disabled persons within the meaning of the section 1 of the Disability Discrimination Act 1995 (the Act). That defines disability as ‘A physical or mental impairment that has a substantial and long term adverse effect on a person’s ability to carry out normal day-to-day activities’. In the Portsmouth case the claimant who is in his mid sixties is registered blind, has mobility difficulties and other health issues. In both cases a number of witness statements have been filed from residents setting out their concerns about the changes..

As a result of an order dated 11 September 2009 of Silber J in the Barnet case, the changes have not yet been brought into effect there but the process to do so continues. The changes were implemented in Portsmouth on 1 November 2009. On 29 October 2009 Charles J in giving permission to apply for judicial review in the Portsmouth case directed that the final hearing should be heard at the same time as the Barnet case, subject to the consent of the trial judge, because the underlying legal arguments are similar. When the cases came on for hearing each of the claimants in both cases were represented by one counsel, while Barnet and Portsmouth each instructed separate counsel. Whilst the issues in the two cases as they were developed in skeleton arguments for the hearing are not identical there is a substantial degree of overlap. Each of the parties agreed in principle that it was sensible and convenient for the cases to be heard together, and that is the course which was adopted. It also seems helpful and convenient to hand down one judgment.

The issues were developed during the course of the proceedings and some grounds of challenge were abandoned. Three main grounds remain in the Barnet case. First, it is submitted that in reaching the decision in question Barnet failed to fulfil its statutory duty under section 49A(1) of the Act to have due regard to the six needs there set out, each of which identifies a particular goal the achievement of which would further the overall aim of the Act to eliminate discrimination and harassment of disabled persons and to promote equality of opportunity for them in society. Secondly, it is submitted, Barnet failed to follow its own Equality Scheme 2007/8-2010/11, adopted to comply with The Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 2005 (the Regulations) made under the Act, because it did not sufficiently involve disabled persons or groups representing their interests in the decision making process. The final submission is that Barnet failed to follow the statutory code of practice called The Duty to Promote Disability Equality: Statutory Code of Practice (the Code) made by the Disability Rights Commission (now named the Equality and Human Rights Commission and to which I shall refer as the Commission) under section 53A(1C) of the Act, in respect of such involvement or the assessment of the impact of the proposals on disabled persons.

Barnet accepts that it is a public authority which is under the duty set out in section 49A(1) of the Act. It says that it has complied with that duty in substance. Barnet’s response to the second ground of challenge is that it carried out a robust consultation exercise with residents and interested groups, including those representing the interests of disabled persons. Finally, it says that there was no duty to carry out a full equality impact assessment and that the assessment which was carried out was adequate.

Those grounds are also advanced against the decision of Portsmouth which adopts the submissions of Barnet. The focus of the debate in the Portsmouth case, therefore, was a preliminary impact assessment in that case carried out by a policy development manager in the Housing Service which concluded that the proposed changes would or could have no adverse effect or impact on members of equality groups including disability groups. It is said that that conclusion amounts to a breach of the statutory duty or alternatively is unreasonable in the Wednesbury sense. Portsmouth submits that such a conclusion was a matter for the officer who was entitled to come to it. Portsmouth, like Barnet, maintains that it complied with the statutory framework.

The withdrawal of resident wardens or staff from sheltered housing schemes is a matter of anxious concern for residents not only in Barnet and Portsmouth but also in many other parts of the United Kingdom. It involves very difficult decisions for local housing authorities with increasing budgetary constraints and increasing demands upon overstretched resources. In a report called ‘Inside Housing’ published in October 2008 of 51 such authorities surveyed, in 75% of them warden services had either been reduced or were under review. The statutory framework places the responsibility for such decisions and for the balancing exercise which must be carried out in order to reach them firmly upon such authorities. Much of the evidence filed by each of the parties relates to the merits of the decisions. It is no part of the function of the court, however, in determining whether the challenges to the legality of the decisions in question are made out, to enter into the debate about the merits of such decisions or to interfere with the difficult balancing exercise involved. The question for the court is whether the decisions were made in accordance with the law.

It may be helpful to set out that framework before turning to the facts in more detail. Section 49A(1) imposes a mandatory duty to have due regard to the need to achieve the identified goals. It does not impose a duty to achieve results. It provides as follows:

“[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 than other persons;

e)

the need to promote positive attitudes towards disabled persons, and

f)

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

Section 49D(1) of the Act gives the Secretary of State for Work and Pensions power to make regulations for the purpose of ensuring the better performance by public authorities of the statutory duty as follows:

“[49D Power to impose specific duties]

[(1) The Secretary of State may by regulations impose on a public authority, other than a relevant Scottish authority or a cross-border 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)..”

That power was exercised and the Regulations came into force on 5 December 2005. Paragraph 2 imposes duties on all listed public authorities to publish a Disability Equality Scheme (DES) and prescribes details of what it will contain. The paragraph is concerned with the mechanism for implementation of the statutory duty and does not expand that duty. Paragraph 3 requires the authorities to take the steps required by the DES within three years of its publication, and to put into effect its arrangements for gathering information and making use of it within the same period. It is specifically provided that nothing in the Regulations imposes a duty on an authority where in the circumstances it would be unreasonable or impractical for it to perform the duty.

The relevant paragraphs are as follows;

“2 Preparation and publication of a Disability Equality Scheme

(1)

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.

(2)

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 –

a)

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

b)

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

c)

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

d)

That authority’s arrangements for gathering information on the effect of its policies and practices on disabled persons and in particular its arrangements for gathering information on-

i)

their effect on the recruitment, development and retention of its disabled employees,

ii)

their effect, in the case of an authority specified in Part ii, iii or iv of Schedule 1, on the educational opportunities available to, and on the achievements of, disabled pupils and students, and

iii)

the extent to which, in the case of an authority specified in [Part I, V or VI of Schedule 1], the services it provides and those other functions it performs take account of the needs of disabled persons, and

e)

that authority’s arrangements for making use of such information to assist it in the performance of its section 49A(1) duty and, in particular, its arrangements for-

i)

reviewing on a regular basis the effectiveness of the steps referred to in sub-paragraph (c), and

ii)

preparing subsequent Schemes.

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3 Implementation of the Disability Equality Scheme

(1)

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-

a)

take the steps which it has been required to set out in the Scheme by virtue of regulation 2(3)(c ), and

b)

put into effect its arrangements, which has been required to set out in the Scheme by virtue of regulations 2(3)(d) and (e), for-

i)

gathering information, and

ii)

making use of such information.

(2)

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

It is important to note that neither section 49A(1) nor the Regulations impose a specific or particular duty on public authorities to conduct an equality impact assessment. That is a matter which is dealt with by the Code, already referred to. Section 53A(4) of the Act provides that the Commission may not issue a code of practice unless a draft has been approved by the Secretary of State and an opportunity given to both Houses of Parliament to resolve not to accept it. A breach of the Code does not itself make a person liable in any proceedings, but a court must take into account any relevant provision of it in certain types of proceedings (sections 53A(8) and (8A)), which I shall take as including the present proceedings. It is not disputed that Barnet and Portsmouth were under a duty to take the Code into account when making the decisions under challenge.

Paragraph 1.55 of the Code provides that the Code does not impose legal obligations and that it does not contain an authoritative statement of the law. Chapter 2 sets out what public authorities need to do to fulfil the duty in section 49A(1) and Chapter 3 deals with specific duties under the Regulations. The relevant provisions are as follows:

“Involvement

2.52

The specific duties expressly require the involvement of disabled people in the development of the Disability Equality Scheme. Even those authorities not subject to these duties are likely to find that the involvement of disabled people is key to compliance with the general duty. Public authorities will be unable to identify and prioritise equality initiatives effectively unless disabled people and, where appropriate, disabled children and their parents, have been involved in that identification and prioritisation.

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2 .53 Taking active steps to ensure the involvement of disabled people is particularly important given the under-representation of disabled people generally in positions which determine policies and priorities of public authorities. The requirement to give due regard to the need to promote participation in public life requires that steps are taken to ensure that the formal structures of governing and advising bodies are accessible to and inclusive of disabled people, for example, trust boards, school governance and boards of Community Strategic Partnerships.

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3.11

The regulations specifically require the involvement of disabled people in the development of the Scheme. However, the involvement of disabled people in the implementation of the various aspects of the Scheme (such as conducting impact assessments and gathering evidence) will also be critical to the successful implementation of the duty. For example, involving disabled people in monitoring the success of initiatives throughout the duration of the Disability Equality Scheme will assist with evaluation, and will be critical when the time comes to review and revise the Scheme.

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3.16

The duty requires public authorities to involve those disabled people who appear to have an interest in the way in which an authority carries out its functions. This may include former, current and potential service users, staff and the wider community. It is important to consider the full diversity of disabled people – in terms of the type of impairment, as well as other dimensions such as ethnicity, age, gender, sexual orientation and religion or belief.

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3.22

Authorities should develop user involvement protocols for both commissioning and monitoring services, in consultation with disabled people, as recommended by the report ‘Improving the Life Chances of Disabled People’ (Strategy Unit, 2005), at recommendation 4.2. Local authorities should develop a protocol for the whole authority, not one per individual function.

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3.28

A public authority must include in its Disability Equality Scheme a statement of the authority’s methods for assessing the impact of its policies and practices, or the likely impact of its proposed policies and practices, on equality for disabled persons.

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3.36

In considering whether to conduct a full impact assessment, public authorities will need to develop criteria which enables them to determine whether:

•

the policy is a major one in terms of scale or significance for the authority’s activities; or

•

there is a clear indication that, although the policy is minor, it is likely to have a major impact upon disabled people. This is not a question merely of the numbers of disabled people affected but of the degree of impact. A policy which has an extremely negative impact on a small number of disabled people will be of greater relevance than one which has only a minor impact on a large number of disabled people.”

The Commission has also published non-statutory guidance on the duty under section 49A(1), including the gathering and analysing of evidence to inform action, on how public authorities should involve disabled persons, and on disability equality impact assessment. The latter advises that a full assessment should explore such questions as what kind of disability equality impact might there be, how significant it is in terms of its nature and number of people likely to be affected and for which groups of disabled persons will there be an impact. It warns that the completion of an impact assessment form should not be equated with the assessment itself but should be no more that a recording of those impact assessment activities which have already taken place.

With that framework in mind it is necessary to examine the factual background in both cases in some detail. Barnet currently commissions support services for about 1500 sheltered housing tenants from some 24 service providers including housing associations and charities. Of these 19 provide support staff and an alarm service with the remainder providing the latter service only. The schemes consist of a group of flats or bungalows which Barnet rents to the residents, about two thirds of whom receive support from resident staff. In other cases support is given by non-resident staff during the day or based off site but operating regular scheduled visits. No figures were made available to the court as to how many such residents are disabled within the meaning of the Act but it is accepted that the percentage is likely to be significant.

In 2001 Barnet decided to reduce the provision of sheltered housing from 715 to 445 units in response to a perceived oversupply of such accommodation and a desire to improve the standard of the retained stock and to make provision for other care schemes. In 2005 it conducted a Supporting People needs survey which found substantial unmet support needs among homeowners and tenants in general needs rented housing. A sheltered housing outcomes survey showed that 90% of sheltered housing residents felt that they were as independent as possible, 51% said that support in sheltered housing had prevented them from falling, 43% felt it had prevented them from going into hospital and 55% felt it had avoided the need to be admitted to residential or nursing care.

In 2007 Barnet published its DES. It contained a forward by the Council leader. It includes the following passages:

“Listening to local people

Even though we have a high resident satisfaction rate, we are committed to asking local people to identify the areas of the council that most need improving. We are actively listening to our residents and understand that different communities have specific priorities and different experiences of council activities.

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As a council we seek the views of our residents using our Citizens’ Panel together with its specialist black and minority ethnic (BME) and disabled panels. A survey was undertaken with Citizen Panel members in August 2006 to identify residents’ race and disability priorities by looking at following of areas:

•

is the council doing enough to protect the rights of people belonging to different communities?

•

how much prejudice do residents feel there is in their local area?

•

what should the council focus on in order to promote disability and race equality?

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The council’s progress at promoting disability equality against the targets outlined in the disability delivery plan will be monitored and reviewed by Barnet Disability Equality Advisory Group which is an independent advisory panel comprised of members of Barnet’s disabled communities. Similar models are being explored to monitor and review progress on the council’s performance in promoting race equality and gender equality.”

Barnet was subsequently unhappy with the performance of the disability panel set up under the DES and it was disbanded. The Disability Equality Advisory Group referred to consisted of 3 members who for various reasons did not continue on the Group and thereafter there were problems of recruitment. Neither panel was in operation when the decision under challenge was in the process of being made.

By 2008 when Barnet’s Draft Sheltered Housing Strategy (the Strategy) was published, sheltered housing provided homes for less than 3% of Barnet’s older residents but received over 60% of the Supporting People funding for older people. The Strategy recorded a shared view across the relevant older persons’ services that sheltered housing provides significant benefits to residents as well as providing an economic way of delivering services such as home care. It was stated to be difficult to quantify the impact of low-level support interventions, particularly the benefits of preventing loneliness, exclusions and fear as well as preventing admissions to hospital and residential care. It referred to the 2006 survey and a further survey in 2008 which found that 88% of sheltered housing residents reported that their services helped them live independently. The Strategy estimated an over supply of traditional sheltered housing peaking in 2015 to just over 300 units, and found evidence that such housing had been let to meet housing rather than support needs. It concluded that in order to offer a support service to older people in the wider community, it would be necessary to offer a reduced service or to withdraw the service entirely from those with low support needs currently living in sheltered accommodation. The support services referred to were listed as including daily visits, emotional support and assistance during periods of incapacity. It set out a number of options and suggested that the best option would be to retain all sheltered housing schemes for older people but for most to replace the resident sheltered housing service and provide a visiting service through community teams.

On the 6 January 2009 the Cabinet agreed budget headlines subject to consultation. That decision included a proposal to replace the existing residential warden service to sheltered housing residents and to replace it with services which would target support to residents who need it, leading to a budget reduction of £950,000.

Barnet then appointed an independent research company to conduct a survey of sheltered housing residents and service providers on three proposals. Proposal 1 was to reduce the amount of funding for such services. Proposal 2 was to provide new visiting support service to replace staff in sheltered housing. Proposal 3 was to provide financial help for those who needed a community alarm service. Questionnaires were sent to residents, service providers and support groups in a consultation period which lasted for some 6 weeks until the end of March 2009. The groups consulted included some 23 groups representing elderly or disabled persons include Age Concern Barnet and Disability Action in the Borough of Barnet. The questionnaires referred to the Act and asked for details of disability. Those questionnaires sent to service providers included a request for information on the impact of withdrawal of support services, with a number of boxes to tick including the requirement of residential or nursing care.

The summary report dated April 2009 indicated that 51.2% of residents completing questionnaires, not all of whom were in sheltered housing, stated that they had a disability. The report made a number of references to disabilities. It referred to the concern of some residents with disabilities that they would not be able to remain in their home without the current level of support. The importance of not overlooking less visible disabilities and mental health needs was viewed as essential. The majority (88%) of those responding felt that sheltered housing residents would be disadvantaged if current services were replaced by the new proposed floating support services. The five most frequently made points were: floating support would not meet the needs of residents; current levels of support would be reduced, peace of mind would be adversely affected; support would not be available as and when needed; and the new service would be impersonal.

The questionnaires to residents and service providers also raised the issue of existing demand and perceived lack of sheltered housing. The report did not suggest a shortage of such accommodation.

Barnett held 47 meetings and 19 meetings during the consultation period in which these concerns were discussed. In May 2009 the Care Quality Commission reported on Barnet’s delivery of preventative services and concluded that there was a clear focus on promoting the independence of older people and a strong emphasis on enablement and rehabilitation.

The deputy head of Strategic Commissioning in Adult Services, James Taylor, and Caroline Chant, joint commissioner Adult Social Services/NHS Barnet drafted an equality impact assessment, taking into account the information gathered during the consultation exercise, on a three page document. That assessment concluded that all equality strands were likely to be affected by the proposals. In respect of disability, the explanation is given thus:

“Disability

The restructure is specifically concerned with services for older people with additional vulnerabilities including physical/sensory impairment and age related frailties including dementia.”

Questions 11, 12 15 and 17 and the answers thereto are as follows:

“11.

Is there evidence or any other reason to suggest that it could have a different effect or adverse impact on any section of the community? Or more specifically, one or more of the six equality strands?

No. No adverse impact, subject to the majority of existing funding being available for re-investment

12.

Is a system in place to monitor its impact? Yes

15.

Decision Recommended to SMT Positive Impact Yes

17.

What are your reasons for your decision?

The proposal is to commission services that are needs-led and available to all, unlike current sheltered housing provision that discriminates against those populations who are less likely to wish to choose this housing tenure

This is provided that the budget reduction is proportionate and that appropriate funding continues to be available; to meet commissioning objectives.”

In a witness statement dated 28 October 2009 filed in the Barnet case, Mr Taylor explains the answer to question 11. He says that he was referring to an option which became known as option 3 whereby alarm services would continue without charge around the clock and residents with assessed housing support needs would be eligible for the service of the non-residential support service. This option means an annual saving of £400,000 out of the originally proposed £950,000 reduction. The reason that he concluded that the proposal would have a positive impact is that that option was concerned with housing support services to those outside as well as within sheltered housing. Again no figures were or are available as to how many such people are likely to be disabled

Following that assessment a report was prepared by Irene Findlay and Kate Kennally, director and deputy director of Adult Social Services, for consideration at the Cabinet meeting set for 8 June 2009. In a witness statement dated 28 October 2009 filed in the Barnet case, Ms Kennally, says that she is aware of the equality duties that arise under the Act, and that statement is not challenged. The report is a 13 page report with 6 appendices, including the Strategy, the April 2009 report and the impact assessment.

The following provisions of the report are particularly relevant:

“4

RISK MANAGEMENT ISSUES

4.1

Sheltered Housing has been used as an option for supporting vulnerable older people to remain in the community. The options considered in this report would result in significant changes to how support is provided and for some could result in increased need for services.

4.2

The key risks identified in the consultation are those relating to tenants’ health and welfare, in particular, the most vulnerable tenants, and the related key risk of increases in social care spending. The preferred option (option 3) would best address the risks identified through the public consultation of changes to sheltered housing. There are a number of complexities to implementing the preferred option and it will be necessary to work closely with sheltered housing providers and tenants in planning and bedding down new service provision to mitigate these risks further.

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5

EQUALITIES AND DIVERSITY ISSUES

5.1

The Equality Impact Assessment indicates that the preferred service option would promote greater diversity in provision as support will be available to people living in their own homes. The council’s 2006 review of sheltered housing in the borough found BME groups represented only 7% of sheltered housing tenants, just half the census rate. In contrast, analysis of floating support usage in Barnet shows 19% of older people entering services were from BME groups. This inequality is reinforced by the current distribution of expenditure on Supporting People services for older people with over 60% of investment directed to services for sheltered housing tenants who make up less than 3% of the borough’s older residents. The proposal is to commission services that are needs-led and available to all, unlike current sheltered housing provision that discriminates against those populations who are less likely to wish to choose this housing tenure.

7

LEGAL ISSUES

7.1

As with most decisions of the Council there is a risk of challenge by way of judicial review. As the decision being taken has the potential to affect many residents of sheltered housing the risk of challenge is higher.

7.2

As a matter of public law the Council is required to put out the proposals for changes to the sheltered housing provision to consultation to groups affected by those changes and to consider the results of the consultation process. The Council is also required by equalities and discrimination legislation to have ‘due regard’ to the need to eliminate unlawful discrimination and promote equality of opportunity.

7.3

Challenge may be brought on usual judicial review grounds.

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BACKGROUND INFORMATION

The factual background in the Portsmouth case is shorter. It published its DES in 2006. As in the case of Barnet, it recognises in section 6 the requirement to involve disabled people and representative groups in producing the DES and action plans. Sections 6.1 and 6.2 provides as follows:

“6 The Involvement Information Gathering Event

6.1

Involving Disabled People

‘Nothing about us without us’

At the heart of the Disability Equality Duty is the requirement to involve disabled people in producing the Disability Equality Scheme and Action Plan. This is not only a requirement of the duty but brings tremendous benefit in terms of expertise to the Council in identifying and implementing appropriate changes.

The Council accepts this duty as a way of further developing its long association with disabled people in the city through its excellent working relationship with the Portsmouth Disability Forum and the range of other disability organisations in the city.

The Council recognises that to date it has only been able to contact a limited number of the disabled members of its community. During the 3 year life of the current plan it will continue to widen this involvement, under the guidance of the Action Groups being set up in the Action Plan section of this Scheme.

6.2

Identifying Issues and Involving Disabled People

The essence of the Portsmouth Disability Equality Scheme is that it must involve disabled people. The ‘Doing the Duty’ guidance document produced by the disability Rights Commission (DRC) states that “…. involvement would include areas such as identifying the barriers faced by disabled people and unsatisfactory outcomes, setting priorities for action plans and assisting in planning activity”.

Taking this direction into account, the Scheme was started with a public event to identify barriers and issues. Nothing was written or decided on the Portsmouth DES until after this event. From it, a range of issues was identified and these are being allocated to several Action Groups comprised of disabled people, council officers and, where appropriate, representatives from other public authorities or organisations. In this way, disabled people will be involved with all the issues and their monitoring.

It was also seen that the issues identified would not cover all aspects of the Disability Equality Scheme General Duty. To oversee this, a General Duty Action Group will be set up, also involving disabled people. This will cover issues including how to contact a wider range of disabled people and how to promote impact assessments throughout the Council.

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The Council’s Equality and Diversity Steering Group will oversee the activities of the other groups and will co-opt disabled people and officers from the Action Groups when appropriate.”

At the seven schemes referred to in the claim a service was provided from 9am to 10pm each day. One member of staff slept at the scheme each night to provide assistance to residents, and also worked shifts in the evening and morning.

The European Union Working Time Directive (the Directive) provides that staff who sleep on employer’s premises are deemed to be working and requires that such a member of staff must have an eleven hour period before working again.

As a result, Portsmouth surveyed requests for assistance from residents in category 2.5 sheltered housing for a 35 day period to the end of March 2009. There was an average of 3 requests each night totalling 130 in all. Requests decreased significantly after 10pm and did not begin to increase until after 7am. Previous surveys had shown average response times of 5 minutes, the most frequent recorded response time. The next frequent response time was 2 to 3 minutes and then 10 minutes.

All resident staff had basic first aid training but the evidence before the court was not clear as to whether it was part of the service to render first aid. It is common ground that a medical service was not offered. The evidence suggests that resident staff sometimes attended residents in a medical emergency. In my judgment, on the whole of the evidence it is reasonable to conclude that a fair proportion of such staff would be prepared to render first aid such as the clearing of airways or putting a resident in the recovery position if appropriate in the event of a medical emergency.

Portsmouth considered the options for providing a service to meet residents’ needs and prepared proposals for a new service consisting of a day time service from 7am to 10 pm and a two person mobile night team. Experimental car journeys between the schemes were conducted and showed average times of between 2 minutes to 12 minutes, the average response time from schemes inside the city to those outside were 7 to 12 minutes and those within the city somewhat less. The estimated additional cost of this service for each resident in the year 2010/11 is £10.65 per week compared with £24.69 for resident staff.

In May 2009 a random survey of 66 residents drawn from all the schemes was undertaken to evaluate what was important to them. 45 said that a night time response was important. Personal safety and security was mentioned by 28 residents and speed of response by 22 residents

By letter dated 7 July 2009 Portsmouth’s assistant housing manager David Mearns wrote to each of the residents affected in the following terms:

“Changes to Night Time Services

I am writing to let you know about some planned changes to the current night cover within your sheltered scheme that should improve the level of service you receive.

Some changes to current service are essential to minimise increased charges to residents arising from the European Union’s requirements on working hours (EUWTD), the Council’s Local Pay Review and reductions in the Government’s Supporting People funding for sheltered housing.

At the moment one of our support assistants sleeps at the scheme between the hours of 10pm and 9am or a manager performs a standby duty responding to calls for assistance from residents as they arise during the night.

From the sample face to face survey conducted with residents across sheltered schemes like yours, we have established that what is important for yourselves are speed of response to your requests for assistance and safety and security during the night time hours.

Our plan is to introduce a new, mobile night time team that will patrol the seven sheltered schemes throughout the night from 10pm to 7am responding to calls for assistance as they arise. Staff will also provide a service within the scheme from 7am instead of 9am at the moment.

The new team will perform the following functions:

•

they will make regular patrol around the building throughout the night which will increase security within your scheme

•

an alert team member will respond quickly to any requests for assistance from residents when a pendant/cord is pulled

•

they will make visits to specific residents during the night where need is identified by scheme managers and staff.

The benefits of this new approach are:

•

they will be a waking team (i.e. not asleep within the scheme)

•

they are a team of two (not a single support assistant on their own)

•

the day service will be extended each day from 7am until 10pm

•

having a dedicated night team will mean your scheme manager will be able to better organise the service you receive during the day

•

scheme managers will be more available to help you throughout the working week.

As well as offering you an improved level of service, the changes will reduce the impact on sheltered housing customers of the cost increase due to other factors which include:

•

A reduction in Supporting People funding

•

Costs resulting from the Local Pay Review

•

Impact of the European Union Working Time Directive

We understand you may have some questions about the new night time cover. With this in mind we have arranged a residents’ meeting at all schemes so we can specifically talk about the changes. The timetable of meetings is below.

We would encourage you to please come along to one of these meetings and ask any questions you may have. Please feel free to ask a friend, a carer or member of your family to attend with you or on your behalf and ask questions.

If you would prefer to speak directly to myself or a member of the Sheltered Housing Scheme, or if you have any questions in the meantime, please don’t hesitate to telephone me on…………..

We look forward to seeing you at the meeting.”

The letter set out a timetable of meetings on 13 to 16 July 2009. Mr Mearns in a witness statement dated 27 October 2009 filed in the Portsmouth case says that he went to each meeting, each was well attended and he explained that the purpose of them was to consult the residents about the proposed changes and to answer questions. He explained that a decision as to how proceed would be taken by the Housing Executive on 30^th July 2009 at a meeting which would be open to the public. He exhibits the comments made at the meetings. Many concerns were raised in respect of cost, but comments were also made as to the length of response time of the new service and the possible effect in a medical emergency, the loss of the feeling of safety and peace of mind without a resident member of staff, and as to what would happen in the event of a fire. Concerns were raised in respect of people with sight and hearing disabilities. A few examples were given of staff responding in 5 minutes or less to medical or other emergencies.

On 20 July 2009 a policy development manager in the Housing Service, Kate English, prepared an equalities impact assessment. She filed a statement in the proceedings saying that she has undergone training on equality issues and attends Portsmouth Fairness and Equality Group. She had 2 meetings with Mr Mearns to discuss the proposals and the consultation. The assessment consists of 4 pages. Questions 3 4 and 5 are as follows:

“3.

Who is affected?

4.

Does, or could, the policy, function or service have an adverse effect or impact on members of the equality groups?

5.

Does, or could, the policy, function or service help to promote equality for members of the equality groups?”

The answer to Question 3 is given as:

“All residents who currently reside in category 2.5 schemes (approximately 345 residents aged between 60 and 100 years old). Staff who work in those schemes. Potentially any residents who move to the cat 2.5 schemes in the future. Family and friends of the residents of cat 2.5 schemes.”

Question 4 is answered in the negative in respect of all groups and paragraph 5 in the positive. It is concluded that a full assessment should not be carried out and the following reasons are given:

“8.

What is the justification for the decision about full assessment?

This is quite a radical change to the current service experienced by category 2.5 sheltered housing residents. However, a lot of work has gone into the proposal that will be considered by the Executive Member for Housing at the end of July 2009. All staff, residents and unions have been consulted about the changes.

One of the main concerns raised by a number of residents was the perceived reduction in security. Rather than have someone asleep on the premises from 22.00pm until 09.00am, there will be a roaming team covering all the seven schemes. Although initially this seems like a reduction in cover, in reality the change will lead to a more responsive service. Currently one sleeping member of staff may be hard to wake and some residents may not wish to wake them. Although the roaming team could not be at each scheme physically for the whole night they will make regular checks (up to three or four per night). In addition to this, they will know about any residents who have night time habits, and the day team will update them of any particular issues that may have occurred prior to the night service.

All members of the sheltered housing service have been trained in safeguarding adults (including recognising abuse, reporting and personal responsibility), and have a good relationship with the social care safeguarding team.

With reference to section 6 (feedback held on equality strands), because each resident has a personal plan which is unique to them, any specific needs are taken into account. Therefore no collective information is held, but equality information is held on each individual and their needs catered for.

Residents must adhere to their tenancy agreement, but are independent in their homes, unlike residents of care homes.

For all the above reasons it is not felt necessary to conduct a full equality impact assessment. The service will be monitored, and residents will be encouraged to feedback their experiences of the new team over the six months following roll in of the service.”

On 20 July 2009 Mr Mearns presented the proposal to a meeting of the Residents’ Consortium Link Group, an umbrella organisation for Portsmouth’s tenants. He says they were well received. The next day he wrote again to residents at one of the schemes and the following passages from the letter are particularly relevant:

“Changes to Night Time Service

Further to my letter of 7^th July and the meeting held at Arthur Dann Court on 14^th July (attended by 29 residents) I am writing to update you on the current situation.

As you know, some changes to the current service are inevitable because of the European Union’s Working Time Directive (EUWTD) limiting working hours.

We have studied night-time demand at the seven CAT 2.5 schemes and typically we receive just three requests per night (10pm – 7am) from residents across all seven schemes. Of these three requests, typically one is responded to satisfactorily over the telephone and two require a visit to the resident, the majority of these being for domestic help. Having considered different options we concluded that the best way to meet residents’ requests and enhance the night-time service was by providing an awake, mobile night-time team, instead of the current sleep-in arrangement.

…

At the meeting on 14^th July, residents expressed concern and opposition to the changes proposed to current working arrangements. I said that residents’ concerns would be considered very carefully and that I would communicate again with residents at Arthur Dann Court.

At present, one of our support assistants sleeps at the scheme between the hours of 10pm to 9am or a manager performs a standby duty responding to calls for assistance from residents as they arise during the night.

Our plan is to introduce a new, mobile night time team that will patrol the seven sheltered schemes throughout the night from 10pm to 7am responding to calls for assistance as they arise. Staff will also provide a service within the scheme from 7am instead of 9am at the moment.

…

At the meeting, residents and their relatives asked a number of questions and I have attached a list of these, together with responses.

Meetings have now been held at each of the seven schemes to consult with residents about the proposals, answer questions and hear resident’ views.

Although some residents and their relatives have said that they wish the current night-time arrangements to remain unchanged, it is necessary to consider what will best meet the needs of most of our residents. Having carefully considered all feedback received, I feel it is right for the Housing Executive meeting on 30^th July to consider the recommendation to adopt the proposals across the seven CAT 2.5 sheltered schemes to commence on 1^st November 2009. The report to the Housing Executive will include the feedback received from residents.

If you wish to speak directly to myself or a member of the Sheltered Housing team, or if you have any questions in the meantime, please don’t hesitate to telephone me on ………….”

A number of the residents who have filed witness statements in the proceedings say they did not feel that they were consulted properly or at all. Some say they were just told at the meetings what was going to happen.

A report dated 24 July 2009 was written by Mr Mearns for the Housing Executive meeting due to be held on 30 July 2009. In a second statement which he filed Mr Mearns confirmed that he has participated in numerous disability equality training activities during his career. The Cabinet member for Housing, Steven Wylie, also filed a statement which confirmed that he received such training as part of his induction as a councillor and from his party. He is aware of his responsibility to keep issues of disability in mind when making his decisions.

The following passages in the report are particularly relevant:

“1

Purpose of Report:

To recommend improvements and changes to the night service in category 2.5 Sheltered Housing schemes required as a result of implementing the European Working Time Directive (EUWTD). To set out the estimated increase in service charges for Category 1, 2 and 2.5 Sheltered Housing schemes in 2010/11 and the additional costs falling on the housing Revenue Account as a result of reductions in Supporting People Grant and implementation on the Local Pay Review (LPR) and EUWTD.

2.

Recommended that (key decisions):

(i)

The proposed improvements to the night service in Category 2.5 Sheltered Housing schemes be approved by the introduction of a mobile night service (Option 1) on 1 November 2009.

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6.

Resident Consultation

Letters were sent to each of our 346 Cat 2.5 residents informing them of the proposed changes to the service they currently receive.

8 consultation meetings were organised during the week commencing 13/07/09 across the 7 Cat 2.5 schemes. Residents, a friend, family member or care were invited to attend any one of these meetings.

12 residents or relatives contacted the team by phone to discuss further. One resident at Arthur Dann Court wrote to oppose the changes. One relative of a resident at Hale Court wrote to oppose the changes.

180 residents attended the 7 meetings along with 10 guests and 3 ward councillors.

When explained and discussed, residents and their guests raised many questions and comments; the most frequently asked question/comments were around:

•

Speed of response/travelling time from scheme to scheme.

•

Cost of the proposed service verses current arrangements

•

Reassurance of how the mobile night team will work.

•

Access and Fire/Health and Safety Issues.

----

Overall, residents that were happy or satisfied understood that the proposed service would meet demand and that the level of service would be improved by the response coming from an awake mobile night team. The residents that were not happy with the proposal primarily had concerns about the loss of ‘peace of mind’ by not having a member of staff on site.

All questions and comments were recorded and are available on request.

Resident representatives were also consulted via the Residents’ Consortium Link Group on 20 July 2009, which saw the advantages of a mobile team and understood the reasons for the proposed changes.

-----

10.

Reasons for urgency

(i)

The LPR timescale required all PCC staff to be given three months’ notice of the LPR changes in July 2009 for full implementation on 1 November 2009. New working arrangements for staff need to be in place by that date for which separate three months’ statutory notice must be given.

(ii)

The timescale for LPR implementation on 1 November 2009 leaves no scope for delay. If no change is agree, there is high risk of large numbers of staff leaving because of the uncertainty about their future pay and working arrangements.

(iii)

The LPR does not provide weekend enhancement or sleep-in allowance to allow staff to continue to work the same pattern after 1 November 2009. New local pay arrangements would have to be agreed if staff are to continue to work at night after that date.

11.

The views of other Directorates/Heads of Service

(i)

Adult Social Care has been consulted for views about the changes and supports the proposals.

(ii)

Discussions are ongoing with the Independent Living Service (ILS – part of Adult Social Care) about the best possible way of providing the new service in conjunction with ILS’ own emergency night service. This could lead to reduced costs for the mobile team and reduced charges to residents.

12.

Consultation Undertaken

(i)

Meetings with the trade unions have been held.

(iii)

Meetings with staff have taken place.

(iv)

A letter has been sent to every resident affected by the changes and meetings have been held with residents at each of the seven schemes. Private meetings have been held with any resident if they so requested.

(v)

Every Councillor was advised of the proposed changes through a bulletin on Members Information Service (3 July 2009).

(vi)

Ward Councillors were invited to attend the meetings arranged with residents in each scheme.

(vii)

The Residents’ Consortium Link Group has been consulted.

13.

Equalities Impact Assessment

(i)

It is good practice to conduct equality impact assessments on all now policies, functions and processes. An assessment has taken place, which shows that the service changes will continue to provide a fair and accessible service to all our residents.”

At the meeting on 30 July 2009, one resident and the two relatives of another resident attended and voiced their concerns. These included that the decision had already been taken as costs had been identified, that residents’ peace of mind would be affected and that a mobile team would mean that residents would have to allow strangers to enter their properties. On behalf of Portsmouth it was pointed out at that meeting that it was necessary to identify the costs of the two main options. It was recognised that the peace of mind of some residents would be disturbed by the proposed changes but indicated that all possible steps to minimise this would be taken including the advance introduction of new staff. After a short adjournment of some 15 minutes Mr Wylie accepted the recommendation, but required regular reports as to its implementation. In doing so he took into account the equality impact assessment.

That decision was called in by a councillor Steven Wemyss for consideration by the Scrutiny Management Panel and considered at a meeting of a number of members and officers on 14 August 2009. Mr Wemyss explained that he had a number of concerns including response times as the recorded times did not take into account getting in and out of the car and that there may be difficulties in responding to three calls made about the same time. In response to that Mr Wylie said that there would be two mobile staff rather than one at each scheme. It was very rare for three calls to be made at once but there was a plan to deal with it. There was debate upon a number of other topics and the Panel resolved that Mr Wylie had acted properly in reaching his decision which should stand.

In the course of the Portsmouth case medical evidence was filed from a number of general practitioners who treat some of the residents and who express serious concern about the new service. They say that the withdrawal of the on-site support service is likely to imperil the health and wellbeing of their clients and other residents. That evidence was based on information provided by the solicitor for the claimant in Portsmouth that it took one to two minutes for an onsite warden to attend an emergency and failed to point out that one of the features of the new service is that the mobile night team will make planned visits to particular residents as directed by the scheme staff. Portsmouth filed a witness statement of Dr Geoffrey Phillips who is a consultant in geriatric medicine. He has not visited any of the residents in Portsmouth but has read the evidence of Mr Mearns as to the new service as well as that of the doctors. His conclusion was that the nature of the warden service is not to provide health or personal care but to summon appropriate professional help, and not to deal with matters outside the field of expertise of the staff concerned. His view is that the new service minimises potential delay and that the risk to residents is minimal and far less than the doctors had expressed. The warden service is not being cancelled but merely moved off site.

I now turn to deal with the various grounds of challenge.

The claimants submit that Barnet and Portsmouth failed to carry out its duty under section 49A(1) of the Act and in particular to have due regard to the needs set out in (d) and (f), namely to need to take account of disabled persons’ disabilities, even when that involves treating disabled person more favourably then other persons, and the need to encourage participation in public life. It is clear that neither the Act nor the specified needs were referred to in either decision or the report which informed it.

I was referred to a number of authorities on the nature of the duty. In R (Chavda) v London Borough of Harrow [2007] EWHC 3064 (Admin) (2007) 11 CCLR 187, His Honour Judge Mackie QC sitting as a High Court Judge held that the decision of a local authority to restrict adult care services to people with critical needs only was unlawful because the duty under the Act was not complied with. That case dealt with specific care services, unlike the present case. In the course of the judgment this was said at paragraph 40:

“……. I recognise that the general duty on the Council under section 49A is only to have ‘due regard’ to the listed considerations (but as I have mentioned the Code states that this requires more than simply giving consideration to the issue of disability). These are important duties nonetheless including the need to promote equality of opportunity and to take account of disabilities even where that involves treating the disabled more favourably than others. There is no evidence that this legal duty and its implications were drawn to the attention of the decision-takers who should have been informed not just of the disabled as an issue but of the particular obligations which the law imposes. It was not enough to refer obliquely in the attached summary to ‘potential conflict with the DDA’ – this would not give a busy councillor any idea of the serious duties imposed upon the Council by the Act.

------

It is important that Councillors should be aware of the special duties the Council owes to the disabled before they take decision. It is not enough to accept that the Council has a good disability record and assume that somehow the message would have got across. An important reason why the laws of discrimination have moved from derision to acceptance to respect over the last three decades has been the recognition of the importance not only of respecting rights but also of doing so visibly and clearly by recording the fact. These considerations lead me to conclude that if the relevance of the important duties imposed by the Act had been adequately drawn to the attention of the decision-makers there would have been a written record of it. (I borrow this observation from a similar one expressed by Stanley Burnton J in R (Bapio Action Ltd) v Secretary of State for Health [2007] EWHC 199). It follows that in my judgment the decision was unlawful on this Disability Discrimination Act ground and that to this extent Ground 3 succeeds.”

In R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), Scott Baker and Aikens LJJ sitting in the Divisional court considered the duty in respect of proposed Post Office closures. After referring to the judgment of Dyson LJ in relation to analogous provisions under the Race Relations Act in R (Baker) v Sec State for Communities and Local Government [2008] LGR 239 at paragraph 31, the court said this at paragraphs 82 to 85:

“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”.”

The court in Brown then went on to consider impact assessments and how, in practice, a public authority fulfils its dutyat paragraphs 89-96:

“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 GoverningBody of Aberdare Girls’ High School [2008] EWHC 1865at 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 3213at 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 882at 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”: Bakerat 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. ”

The duty was considered by the Court of Appeal in R (Deborah Domb & Others) v The London Borough of Hammersmith and Fulham and The Equality and Human Rights Commission [2009] EWCA 941 (Civ). That case involved a decision by a local authority to make charges for the non-residential home care services. Rix LJ, with whom Sedley LJ and Lord Clarke MR agreed, referred to a number of authorities but found the greatest assistance in the judgments of Dyson LJ in Baker and the judgment in Brown and said this at paragraphs 52 and 53:

“….. For present purposes I take from those summaries in particular the observations that there is no statutory duty to carry out a formal impact assessment; that the duty is to have due regard, not to achieve results or to refer in terms to the duty; that due regard does not exclude paying regard to countervailing factors, but is “the regard that is appropriate in all the circumstances”; that the test of whether a decision maker has had due regard is a test of the substance of the matter, not of mere form or box-ticking, and that the duty must be performed with vigour and with an open mind; and that it is a non-delegable duty.

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

At paragraph 79 Sedley LJ added:

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

The claimants submit that the lack of reference in the decisions and the report to the duty or to any of the needs under section 49A(1) render the same unlawful. In my judgment it is clear from the passages I have cited from Brown and in particular paragraphs 91 and 93, that while it is good practice to do so, a failure to refer to the section is not determinative of whether the duty has been performed. What is required is that the duty is exercised in substance, with rigour and an open mind.

I do not accept the submission of Barnet that the claimants must show an absence of due regard in the Wednesbury sense of unreasonableness. In R (Meany & Others) v Harlow District Council [2009] EWHC 559 (Admin) Davis J considered the duty in the context of a decision by a local authority to advertise an invitation to tender for its welfare rights and advice services. At paragraph 72 Davis J said:

“Mr Holbrook submitted that Mr Wolfe either had to show that no regard was had to the statutory criteria or that the decision was irrational. Since Mr Wolfe disclaimed the latter, he was, said Mr Holbrook, left with the former. I do not agree with that submission of Mr Holbrook for two reasons. First, the statutes require that the public body had “due regard” to the specified matters; and what is “due” depends on what is proper and appropriate to the circumstances of the case. Therefore, if a challenge is made, the question of due regard requires a review by the court. It is not simply a question of determining whether no regard at all was had to the statutory criteria. Second, if the submission of Mr Holbrook were right it would be contrary to the authorities, which indicate that a tick box approach may not necessarily in any given case give a complete answer. It is true that, as Baker and Brown make clear, how much weight is to be given to the countervailing factors is a matter for the decision maker. But that does not abrogate the obligation on the decision maker in substance first to have regard to the statutory criteria on discrimination.”

In my judgment the Wednesbury test applies to the consideration of the countervailing factors there referred to, but not to the question of whether the necessary due regard has been had. I am prepared to accept that such regard was had in the preparation of the respective reports in each case by officers who had relevant training and experience and say that they had the duty in mind.

However there was a failure in each case in my judgment to bring the duties adequately to the attention of the decision makers in making these particular decisions. It may well be that the leader of Barnet had a general awareness of the duty, not least because of his involvement in the DES. There is direct evidence, from Mr Wylie in Portsmouth, that he had such an awareness. That leaves open the awareness of the other decision makers in Barnet on 8 June 2009 and in Portsmouth on 14 August 2009.

A more fundamental objection however in my judgment is that such awareness does not amount to a substantial rigorous and open minded approach. Although in each case the residents concerned, including those with disabilities, were questioned and consulted, this was part of an approach to residents as a whole. Although references to disabilities may be found with diligent reading of the documentation available to the decision makers, it is not possible to discern from the reports or documentation or the decisions themselves that due regard was had, for example, to the need to take account of disabled persons’ disabilities even where that involves treating disabled people more favourably than other persons.

In the Portsmouth case the claimant accepted that the officers were under no duty to draw these matters to the decision makers if, as Portsmouth submits, there could be no impact on disabled persons. The claimant relies upon the reference in paragraph 90 of Brown to the need to make decision makers aware of the duty when making decisions which do or might (italics added) affect disabled persons. On the other hand Portsmouth points to paragraph 3.36 of the Code which provides that in considering whether to conduct a full impact assessment public authorities should develop criteria to help them determine whether the policy is a major one, or whether there is a clear indication that, although the policy is minor, it is likely to have a major impact on disabled persons. This is not a question merely of the number of persons affected, but also of the degree of impact.

That paragraph of the Code is in my judgment directed towards deciding whether to conduct a full impact assessment. The assessment carried out by Ms English concluded that the proposed changes did not and could not have an adverse impact on members of equality groups. That conclusion does not sit easily with her own description, within the same assessment, of the change in service as a radical one. It does not sit easily with the information gathered by Portsmouth during the decision making process that the change is likely to have an impact on the peace of mind of residents and the journey times of the mobile unit are likely to be longer than a response from a resident staff member. This may be a matter of minutes but in my judgment might well have a crucial and adverse impact on the rendering of first aid of the type mentioned above. That is an issue which Dr Philips does not address. This time difference may well have a significant adverse impact in dealing with a fall or with the provision of personal assistance or emotional support. This impact is likely to be greater upon those with disabilities than those without, and a significant number of the residents affected are likely to have disabilities.

Moreover, in my judgment in assessing the impact on disabled persons, it is not sufficient to have regard just to timed experimental journeys. Regard must be had also to the understandable perception and fear amongst such persons that the loss of resident staff would lead to a less responsive support service. As I have indicated, such an impact was acknowledged on behalf of Portsmouth at the 30 July 2009 meeting. In my judgment, for the purpose of determining whether the officer had a responsibility to draw the duty under section 49A(1) to the attention of decision makers, the cumulative effect of these factors was sufficient to make it likely that the impact on disabled persons would be more than minor. In my judgment the duty under section 49A(1) should have been brought to the attention of the decision makers.

Both Barnet and Portsmouth had some regard to such impacts on residents as a group, but neither authority in my judgment had any or sufficient regard to such an impact upon those residents with disabilities as a separate group or to the need to recognise that the taking into account of those disabilities may involve treating disabled persons more favourably than others. References in the documentation before the decision makers in each case to disabilities or to rights of equality do not fulfil the requirement of such recognition. Nor does a general awareness amongst officers or decision-makers of the duty under section 49A(1). In my judgment, it follows that in both cases there has been a failure to comply with that duty and in particular sub-section (d). That alone is sufficient to vitiate each of the decisions.

Finally, there remained an issue as to whether the budget decision in January 2009 by the Barnet Cabinet was a fiscal decision which made the decision of 8 June 2009 inevitable. This was a submission which succeeded in Domb. In my judgment that is not the case on the facts presently under consideration. Firstly, that decision was made subject to consultation. Secondly, Ms Kennally’s report was made on the basis that every option, including the do nothing option, remained open. Thirdly, the option which the Cabinet decided upon in June 2009 did not involve the saving of £950,000 referred to in January.

The claimants go further and submit that in each case the authority has failed to consult or involve residents with disabilities in the way which was set out in the DES of the respective authorities. The submission is made on a number of bases. Firstly, it is said that there was a breach of the duty to consult. Secondly, there was a breach of the legitimate expectation raised by the DES in each case that disabled people would be involved in decisions affecting them through the mechanism of the panels and groups referred to. Thirdly, the lack of proper consultation or involvement amounted to a breach of section 49A(1)(d) and (f), and that breach is evidenced by failure to comply with the involvement provisions of the Code.

In submitting that there is a duty to consult, reliance is placed upon R v Devon County Council ex parte Baker [1995] 1 All ER 73. The decision in that case concerned the closure of a local authority care home and it was held that a duty to consult arose from a legitimate expectation that there would be such consultation bases upon a representation to that effect. Portsmouth in particular denies that any such duty arose in this case on the basis that in the present case, unlike Baker, there is no deprivation of an existing benefit or advantage. I have already rejected that submission. In my judgment the DES in each case raised a legitimate expectation that disabled persons would be consulted in decisions affecting them and each of the challenged decisions came into that category. It follows that a duty to consult arose.

Whether that is so or not, both authorities chose to consult in these cases. It is accepted by each that once that decision is made, the consultation must be carried out properly. It must be undertaken at a time when the proposals are still at a formative stage. Sufficient reasons must be given to allow those consulted to give intelligent consideration and an intelligent response. There must also be adequate time for such a response, see R v North & East Devon Health Authority ex parte Coughlan [2001] QB 213.

I accept the submission of Barnet that the consultation which it carried out fulfilled these requirements. It commenced soon after the January 2009 Cabinet decision to make savings in the sheltered housing budget at a time when proposals were being formulated, including those which did not involve the saving proposed by that decision. The questionnaires to residents, service providers and support groups, including those representing disabled persons, and the involvement of independent consultants amounted to robust and substantial consultation. Sufficient information was given for the proposals to be considered and responded to. The six week period of consultation and the number of meetings held gave adequate time for that response. In my judgment this process went beyond consultation and amounted to the sort of involvement envisaged by the DES.

The same cannot be said for the consultation in Portsmouth. It is over simplistic merely to compare the two consultation exercises. The proposals in Barnet were different and affected more people.

However, the 7 July letter from Portsmouth does not in my judgment convey a sense of consultation on proposals for change which include a do nothing option. The language is that of information of a planned change. Alternatives are not dealt with. Claimed benefits of the planned change are set out, but the concerns of residents were not set out or addressed, despite the fact that the importance to residents of support services was known to Portsmouth as a result of the May 2009 survey, but which in any event were foreseeable. No reference was made in the letter to the impact on peace of mind which Portsmouth subsequently acknowledged at the meeting of 30 July 2009.

The letter went on to list a schedule of meetings to be held at each of the schemes in the course of the following week during working hours, to talk about the changes. In all but one case there was only one meeting timetabled. The meetings were referred to expressly in the context of giving an opportunity to ask questions about the night time cover. The overall impression conveyed by that letter is that it seeks to deal with questions about a change which had been decided upon rather than to consult upon proposals, as many of the residents commented at the meetings and in statements filed in these proceedings.

In my judgment, notice of between six and eleven days of meetings gave very little time for residents, particularly those with disabilities of sight or mobility or understanding, to seek appropriate assistance from family or friends or support services in order to gain an appreciation of the implications of the planned change and to provide a meaningful response. Although the meetings were well attended and concerns were expressed at them, it is not suggested that every resident attended or was represented. Insufficient time was given in my judgment for those with disabilities to seek, for example, advice or support from medical practitioners, in time for the meetings. Portsmouth points to the fact that after the hearing before Charles J in these proceedings, such practitioners responded in less that a day, but those responses were obtained by solicitors in ongoing proceedings when the resident service was due to be determined in two or three days time.

Just four days after the last of the meetings, Mr Mearns wrote his report recommending the change which was, some ten days after that, decided upon. In my judgment this consultation was inadequate. It was carried out when the planned change had been formulated. It did not give sufficient reasons for addressing concerns or as to alternatives. It did not give adequate tine, even when due allowance is given for the urgency set out in Mr Mearns’ report.

I do not accept however that either Barnet or Portsmouth was in breach of a legitimate expectation raised by its DES that involvement of disabled persons would take place through a particular mechanism. The DES is necessarily a broad statement of principle which seeks to deal with all functions of the public authority concerned, and is not focused on the issue of sheltered accommodation. The reasonable expectation to which the DES gives rise in the context of this case is that disabled residents should be involved in the decision making process in an effective way and that the duty under section 49A(1) of the Act should be complied with.

As indicated, in my judgement in the Barnet case, such residents were so involved. In the Portsmouth case they were not. That latter omission is further evidence of a failure to comply with the statutory duty by Portsmouth.

As for the Code, the court in Brown at paragraphs 119 and 120 accepted three propositions as to its effect. Firstly, a public authority must take it into account when considering disability issues. If it decides to depart from it cogent reasons must be given and they must be convincing. There are however no higher positive duties to comply with the code. Secondly, if a breach of a general duty under section 49A(1) is alleged and it appears to the court that relevant guidance given by the Code has not been followed without cogent reason, then that may be a powerful factor which leads the court to conclude that there is a breach of statutory duty. Thirdly, it is for the public authority to explain clearly and convincingly the reason for the lapse.

It is clear that the involvement of disabled persons envisaged by the Code in decisions affecting them goes beyond mere consultation. Applying those propositions in these cases, in my judgment for the reasons given above Barnet involved disabled persons in its decision in a substantive way, but Portsmouth did not. For the reasons given in paragraphs 58, 59 and 63 above, each of those authorities however in my judgment failed to adopt an approach to mainstream disability equality in the decision challenged and in that regard there is a breach of Code which is a factor supporting the conclusion that each is in breach of its statutory duty.

I turn next to the issue of impact assessment. It became clear during the hearing that the claimants do not criticise the decisions not to carry out a full impact assessment. Three points were pursued. Firstly, the claimants in Barnet submit that Barnet failed to have regard to the impact of the reduction in availability of sheltered accommodation between 2001 and 2009. In my judgment that criticism is not justified. The issues of supply and demand in respect of such accommodation were adequately dealt with during the consultation period in the questionnaires sent to residents and service providers and in the consultant’s report.

Secondly the claimants allege in each case that officers who carried out the impact assessment, in dealing with the issue of adverse impact, came to conclusions which were unreasonable in the Wednesbury sense. I have already dealt with that conclusion in the case of Portsmouth when considering the issue of whether the statutory duty should have been brought to the attention of the decision makers. For the reasons set out in that context, in my judgment the conclusion that there was or could be no adverse effect or impact on members of disability group was unreasonable in the Wednesbury sense.

The question posed in the Barnet assessment was whether the proposed changes could have a different or adverse impact on any of what were referred to as the equality strands, including disability. The answer does not in my judgment deal with the issue of a different impact. Having regard to the risks and possible impacts set out in the consultant’s report and also to report of Ms Findlay and Ms Kennally at paragraphs 4.1 and 4.2, in my judgment, that answer was also Wednesbury unreasonable. I am not persuaded that this point is strengthened by reference to figures for reinvestment referred to in that answer.

The claimants further submitted that in failing to involve disabled persons in these assessments, there was a further breach of the Code and the non-statutory guidance. In view of clarification that the claimants do not criticise the decisions not to carry out full impact assessments, in my judgment these points add nothing to the conclusions reached above in relation to involvement and the unreasonableness of the assessment insofar as adverse impact is concerned.

However, in my judgment that unreasonableness is a further factor which demonstrates a failure in each case of the decision makers to comply with the duty under section 49A(1).

The question of remedy is a discretionary one. I have given consideration as to whether the above conclusions should result in the quashing of the decisions or either of them. I am mindful that the failings found in the Portsmouth case are more extensive than those found in the Barnet case. I am mindful too that Portsmouth has filed evidence to the effect that the new regime is on the whole working well. This is not a view shared by all of the residents some of whom have made comments to suggest otherwise. It is, in any event, only a matter of weeks into its operation.

I have come to the conclusion that the failings in each case are sufficiently serious for the decision to be quashed and for the matter to be reconsidered. It is not for the court to comment upon the outcome of the reconsidered decisions one way or the other.