D and S, R (on the application of) v Manchester City Council

By this claim, the claimants, two disabled elderly people (who I shall refer to as ‘D’ and ‘S’), act through their sons as litigation friends to challenge the defendant local authority’s budget-setting and consultation processes in relation to adult social care services. Specifically, the claimants contend that:

The claimants also seek permission with respect to their contention that the consultation was further flawed because of the defendant’s alleged non-compliance with the single equality duty in section 149 of the Equality Act 2010 (EQ 2010), in particular in relation to the alleged failure to have any or any proper regard to the likely impact of the proposals on elderly and disabled persons such as the claimants. This issue was raised in the claimants’ Amended Grounds but permission was refused by His Honour Judge Pelling QC on 12 August 2011.

The claimants are both disabled elderly people in receipt of social care services from the adult services department of Manchester City Council, the defendant local authority.

The first claimant, D, is a 75 year old man who lives in the North of Manchester with his son AD who is his litigation friend. D had a stroke in 1999 which paralysed the left side of his body as a consequence of which he wears a caliper on his left foot and has a splint on his left arm. He walks with the aid of a tripod walking stick. D has uncontrolled epilepsy, severe depression, dizzy spells and has a poor memory and a history of falls. He has sustained severe back injuries as a consequence. D requires 1:1 care at all times and AD has been providing him roughly 70 hours care each week.

D’s difficulties are described in his latest needs assessment dated 17 February 2011. He is assessed as having ‘substantial’ needs by reference to the adult social care eligibility criteria. The assessment records that D would like to go out more often ‘as I often feel depressed and too dependent on my son to provide for my needs’. D has significant personal care needs, for example, he requires the assistance of two people for showering. He also needs a wheelchair to move around outdoors. The assessment also records a wide range of aspects of daily living with which D requires support, including non-personal care services such as shopping, laundry, housework and the need for constant supervision during the day.

The second claimant, S, is a 79 year old woman who lives in the South East of Manchester next door to her son, ‘SS’, who as well as being her litigation friend provides her with practical and emotional support and social stimulation. S uses her personal budget to employ SS as a personal assistant. S has an acquired brain injury, serious physical disabilities (including an age related degeneration of the spine), is incontinent and has inoperable breast cancer. She has no long or short term memory, no ability to concentrate and must wear a helmet when she leaves the house. In 2010 she suffered two strokes affecting mobility and dexterity in her left side.

In the social care documents filed with the court it is recorded that S needs support ‘with all personal care and daily living tasks’ and requires support to use the toilet during the night. She is ‘at risk of falls which could result in readmission into hospital’. She cannot manage a weekly shop ‘as she is unable to weight bear’ and as a result of her mobility difficulties she is unable to do laundry or housework. Her support plan demonstrates that she requires assistance in every aspect of daily life, including personal care, mobility, eating and drinking, housework and health.

Examples are provided in the documents filed of other disabled people who have in common with the claimants a constellation of needs, both in relation to personal care and other important areas of daily life. It is contended that the defendant’s budgetary decisions will potentially affect many of the more than 7,000 disabled adults in the City.

In pre-proceedings correspondence, ongoing disputes between the claimants and the local authority were identified either as to the care packages for the claimants and/or the quantum of payments made. These have either been resolved or may be the subject of separate proceedings but are not live issues within these proceedings.

The essential background to the case is, of course, the financial constraints placed on all local authorities including the defendant. As a result of the recent Government spending review the defendant seeks to cut £39.5m from its adult social care budget by 2012/13 of which £25m is to be cut by 2011/12. If it needs to be said, it is common ground that lack of resources is no excuse for unlawful or unfair decision making and no matter how pressing economic problems may be, they do not provide an overriding reason not to consult or act fairly: R (Luton LBC & Ors) v SoS for Education [2011] EWHC 217 (Admin) per Holman J at [96] and R (Rahman & Ors) v Birmingham CC [2011] EWHC 944 (Admin) per Blake J at [46].

The defendant set its budget on 9 March 2011 within which an amendment was carried requiring ‘any additional resources which become available to the Council during 2011/12’ to be allocated to services for vulnerable people including adult social care. The proposals which were adopted in the budget were published on 8 February 2011 and approved by the Executive on 16 February 2011. There is no evidence that equality impact (needs) assessments (EIAs or EINAs) were completed before the budget was approved, indeed, the defendant asserted in response to questions posed in March and April 2011 that EIAs would be completed before the ‘relevant element of the budget is implemented’. A consultation about the adult social care proposals was launched on 9 May 2011 to run until 8 August 2011. The defendant said that an EIA would be completed ‘once the consultation exercise has ended’.

Provision for the elderly and infirm has a long history going back to the Poor Laws. The modern scheme for providing assistance has developed out of the baseline duties in the National Assistance Act 1948, specificity being provided by the Chronically Sick and Disabled Persons Act 1970. The concept of care in the community was introduced in the National Health Service and Community Care Act 1990 (the 1990 Act), (see, for example the definition of community care services to be found at section 46(3) of the 1990 Act and the duty to assess any person who may be in need of services at section 47).

The statutory scheme governing adults can be categorised into three duties:

Directions have been issued pursuant to section 47(4) of the 1990 Act to prescribe some of the elements of a community care assessment, to consult with the person being assessed and to take all reasonable steps to reach an agreement with that person about the support which may be provided. Statutory guidance has been issued under section 7(1) of the Local Authority Social Services Act 1970 by the Secretary of State entitled: ‘Prioritising need in the context of Putting People First: A whole system approach to eligibility for social care’ (the ‘prioritising need guidance’). This replaces the well known Fair Access to Care Services (FACS) guidance which was issued in 2002. Section 7 guidance under which local authorities act is general and not mandatory i.e. it does not compel any particular decision, but an authority can only depart from it for good reason on admissible grounds if its decision is not to be amenable to judicial review: R v London Borough of Islington ex p Rixon [1997] ELR 66 at 71 per Sedley J and R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58 at [21] per Lord Bingham and at [68]-[69] per Lord Hope.

The prioritising need guidance re-iterates (at [19]) that ‘a decision about a person’s eligibility for support is (to be) taken following an appropriate community care assessment’ and at [68] that ‘transparent allocation of available resources depends on effective assessment’. The prioritising need guidance describes a process which has become known as ‘personalisation’, for example, by the allocation of individual budgets to disabled people and resource allocation schemes (RAS) to determine indicative budgets from which disabled people can procure the support necessary to meet their needs.

Every local authority is required to set its eligibility criteria, following consultation, according to four bands prescribed by the guidance as follows:

In doing so, they should take account, inter alia, of their own resources and consultations with service users and others. The distinction between budgetary review of the criteria based upon how eligibility criteria are set and transparent allocation of available resources based upon individual assessment is clear. The guidance helpfully summarises how the eligibility criteria are to be set and reviewed as follows:

“[44]…In setting their eligibility criteria, councils should take account of their own resources, local expectations and local costs. Councils should take account of agreements with the NHS, including those covering transfers of care and hospital discharge. They should also take account of other agreements with other agencies, as well as other local and national factors.

[45] Although final decisions remain with councils, to promote greater clarity and transparency, they should consult service users, carers and appropriate local agencies and organisations about their eligibility criteria and how information about the criteria is presented and made available.

[46] Councils should review their eligibility criteria in line with their usual budget cycles. Such reviews may be brought forward if there are major or unexpected changes, including those with significant resource consequences. However, councils should be mindful of the evidence cited above which suggests that raising eligibility thresholds without a parallel investment in preventative strategies may lead to increasing demand for services in the longer term.

[47] In this guidance, the issues and support needs that are identified when individuals approach, or are referred to, councils seeking social care support are defined as “presenting needs”. Those presenting needs for which a council will provide help because they fall within the council’s eligibility criteria, are defined as “eligible needs”. Eligibility criteria therefore describe the full range of eligible needs that will be met by councils, taking their resources into account. Councils should work with individuals to identify the outcomes they wish to achieve, and to identify where unmet needs are preventing the realisation of such outcomes.”

In the cases of D and S, their presenting needs have been assessed as against the defendant’s eligibility criteria as substantial and it is the policy of the defendant to provide services to meet critical and substantial need. Accordingly, the duty to provide services to meet eligible needs is engaged in the case of both claimants. The guidance confirms at [61] that ‘with the exception of life threatening circumstances or where there are serious safeguarding concerns, there is no hierarchy of needs’. Furthermore, the duty to provide services to meet eligible needs is not to be constrained by resources: R v Gloucestershire CC ex parte Mahfood (1997) 1 CCLR 7 as was confirmed by their Lordships’ House: R v Gloucestershire CC, ex parte Barry [1997] AC 584 i.e. there is an absolute duty to meet eligible needs; see also R (Savva) v Royal Borough of Kensington and Chelsea [2010] EWCA Civ 1209; (2011) 14 CCLR 75 at [7].

Finally, in so far as it is relevant, individual budgets are a form of direct payment promoted by the policy guidance which derives from section 57 of the Health and Social Care Act 2001. By section 57(4)(a) of that Act, direct payments should be paid at a rate which the local authority estimates to be ‘equivalent to the reasonable cost of securing the provision of the service concerned’.

Local authorities finance their expenditure in a number of ways; principally through a) fees and charges, b) specific government grants such as the ‘early intervention grant’ to support disadvantaged children and families, c) non-domestic rates, d) council tax and e) general Government grants now known as the ‘Formula Grant’.

In each financial year a local authority is required to set an amount of council tax before 11 March in the financial year preceding that for which it is set, although it is not invalid if made later: section 30(1)(6) of the Local Government Finance Act 1992 (LGFA 1992). For the current financial year, which began on 1 April 2011, the Council was required to set an amount of council tax before 11 March 2011.

The amount of council tax has to be calculated by a local authority inter alia in accordance with sections 32 to 36 of the LGFA 1992: see section 30(2)(a). Section 32 requires an authority to make certain calculations to identify its ‘budget requirement’ for the year. In simple terms, its budget requirement is the amount by which (i) the expenditure which will be charged to the revenue account that the authority estimates it will incur in performing its functions in the year and certain other items for which it estimates it must find resources exceeds (ii) the income and other resources it estimates it will have available to meet expenditure charged to the revenue account (other than certain payments made by the Government): see sections 32(1), (2), (3) and (4). It is the Council’s budget calculations for 2011/12 (which it made on 9 March 2011) that the claimants seek to impugn.

The basic amount of a local authority’s council tax for the year is calculated so that the amount raised meets the authority’s budget requirement to the extent that it is not defrayed by certain payments made by the Government: section 33(1) LGFA 1992. This basic amount determines the amount to be raised by council tax in respect of each category of dwelling in the authority’s area: section 36(1) LGFA 1992. The Council set the amount of its council tax for 2011/12 at the same meeting on 9 March 2011 as it made its budget calculations and based on them.

A calculation made in accordance with any of sections 32 to 37 LGFA 1992 may only be questioned by an application for judicial review: sections 66(1) and 66(2)(c) LGFA 1992. Section 66(3) LGFA 1992 provides that “if on an application for judicial review the court decides to grant relief in respect of [such a calculation], it shall quash the…calculation..”.

The effect of quashing the budget calculations made under section 32, including the calculation of an authority’s budget requirement, is that the purported setting of an amount of council tax must be treated as if it had not occurred: sections 30(8) and 30(9) LGFA 1992. If the budget calculations under section 32 are quashed, the Council will be obliged to recalculate its budget requirement under that section and this recalculation will give rise in turn to an obligation to recalculate the basic amount of its council tax and then to reset the amount of council tax: sections 32(1), 33(1) and 36(1) LGFA 1992. This will then require service of new demand notices on those liable to pay the reset amount (whether it is the same or a different amount).

The defendant Council is a large local authority with anticipated expenditure in 2011/12 of £581m, of which £166m or approximately 35% is to be spent on adult social care. The Council has a pre-existing programme of efficiency savings known as ‘Analyse and Improve Manchester’ (AIM). These savings were introduced in February 2010 when the Council approved a medium term financial plan on the pre-election assumption that after May 2010 it would need to reduce public expenditure. The City Treasurer normally starts to prepare the Council’s business plan in July each year with a view to a first draft being prepared for each directorate in October. On 20 October 2010 and in line with the assumptions made by the Council, central Government announced its Comprehensive Spending Review setting out anticipated reductions in central Government support for local authorities of up to 28% for the succeeding three financial years. On 25 November 2010 the defendant launched a consultation about its 2011/12 budget entitled ‘there is less money, so how should we spend it’. On 13 December 2010 the provisional sum for central Government support for the defendant was announced which had the consequence of a 25% reduction in expenditure by the end of 2012/13.

Following the announcement of the provisional settlement, officers and leading Members of the Council reviewed the Council’s financial position and priorities to consider how to identify savings. A framework and set of principles was identified which was informed by the pre-budget consultation. The framework included the aims to “continue to promote independence and reduce dependency, including through early intervention and preventative action” and to “continue to safeguard those in greatest need”. The principles included the “need to provide sufficient resources to provide for effective safeguarding and to protect the most vulnerable residents”.

An initial report was presented to the Council’s Executive on 22 December 2010 and thereafter each directorate prepared plans. These were published for public consultation on 8 February 2011 and considered by the Executive on 16 February 2011. The minutes of that meeting show that the Executive recommended the proposals to the Council. The proposals involved revenue budget savings for adult care services in 2011/12 of £25.785m of which £11.090m was to be found from existing AIM savings followed in 2012/13 by savings of £13.734m of which £7.255m were to come from AIM.

The 8 February 2011 reports included the ‘Report on the Implications of and Strategic Response to the Local Government Settlement’ which sets out the framework and principles and the ‘Report on the Revenue Budget’ which sets out the estimated proposed savings for each of the Council’s four directorates including adult social care. This latter report drew attention to the fact that many of the actions proposed could only be taken after specific statutory or other legal process had been followed and/or consultation had taken place. It specifically drew attention to the Council’s legal duties including its obligations to have ‘due regard’ under the Equality Act 2010.

At [83], [85] and [89] of that report, Members were told:

“83 Apart from statutory duties relating to specific proposals the council must consider its obligations under the Equality Act. In broad terms this means that the council has a duty to have regard to the need to eliminate discrimination and advance equality of opportunity between all irrespective of whether they fall into a protected category such as race, gender, religion etc.

….

85

In determining the final set of proposals for consideration officers have had regard to how the equality duty can be fulfilled in relation to the proposals overall. However detailed equality impact assessments will be required for specific proposals as identified by each directorate prior to final decisions being made.

….

89 The council needs to be satisfied that it can continue to meet its statutory duties and meet the needs of vulnerable young people and adults. Proposals have been drawn up on the basis that Strategic Directors are satisfied that this will enable them to continue to meet their statutory duties and the needs of the most vulnerable.”

The proposals were considered by the appropriate overview and scrutiny committees of the Council on 21 and 28 February 2011 (which considered representations by members of the public and Members in response to the consultation) and by the full Council on 9 March 2011 where the budget was approved subject to the amendment to which I have previously referred which arose out of those representations.

It is submitted by the defendant that it was recognised that the outcome of further consultations which were necessary might require further resources to be used than those budgeted for. This was one reason among others why the City Treasurer recommended that the Council should hold a General Reserve Fund of £21m in 2011/12 as a minimum which could be used to make good savings which did not proceed and the uncertainties associated with a budget strategy. In addition, the Council also had available to it £59m in ‘earmarked’ reserves for the same purposes, albeit that future savings would be needed to replace any of this sum drawn down in 2011/12. The Council had before it a report on the council tax resolution for 2011/12 which drew attention to the risks in setting a balanced budget in the circumstance that consultation, legal processes and EIAs were required before final decisions could be taken on many of the proposals for savings. The report also drew attention to the City Treasurer’s opinion that the risks could be managed in light of the reserves envisaged.

For the reasons I set out in due course I accept that this was a proper and lawful budget strategy which took into account a pre-budget consultation whose legality is not challenged and which overtly identified principles and a framework which was informed by the needs of disabled and elderly service users. Neither the framework nor the principles are challenged and they were ‘stress tested’ in over 60 meetings between officers and Members including those outside the Executive. To the extent that the budget decision relied upon contingency planning and the identification of reserves to meet statutory obligations it was a strategy based on good budgeting practice and local authority governance.

On 14 September 2011 the Council’s Executive was asked to approve the ‘redefined social care offer’ which arises out of the budget approved by full Council on 9 March 2011 as identified in the report to the Executive on 16 February 2011. The proposals and savings which are effective from 1 November 2011 on a pro-rata basis can be summarised as follows:

By the time the Executive made its decision on 16 September 2011 a post budget public consultation had been completed. The Executive had the benefit of an EIA published on 7 September 2011.

The claimants submit that if any of their challenges succeed then the subsequent decision of the Executive of the Council on 14 September 2011 must also be set aside. With respect, that begs the question which decision it is that they seek to impugn: no grounds have been pleaded or established to interfere with the September decision. The import and substance of the challenge this court has heard is as to the budget decision.

The post budget consultation took place from 9 May to 8 August 2011 during the course of which it was extended and its terms revised. It was originally intended to run until 9 July 2011 but it is conceded that a number of respondents did not fully understand the proposals and a revised questionnaire was issued on 29 June 2011. A number of meetings took place, a powerpoint presentation with printed slides was provided and there was a questionnaire with an accompanying explanatory document ‘guidance and information to help you complete the questionnaire’. Whereas the original questionnaire had a question in these terms: “we will continue to support vulnerable customers but we will make some changes to the way we allocate money to meet certain needs and allow more flexibility in managing risks. Do you think this is fair?” which quite aside from any legal duties upon the Council in respect of the same was a question almost impossible for a respondent to answer in any meaningful way, the revised questions were more specific, for example in the circumstance that the Council proposed to change the way that money is allocated, whether respondents would consider using alternative means of shopping and collection of pensions.

The powerpoint slides set out three ways in which the Council proposed to change its social care offer:

“1.

Increasing our Reablement Service. This is support for about 6 weeks for people who need help to get back up to speed and live as independently as possible after a crisis, for example, being in hospital, an accident or a fall.

2.

When we carry out a review of customer’s needs, we will look at other ways to better meet support needs…

3.

Continue to support the most vulnerable customers in the City. We will change the way we allocate money to meet certain needs and introduce greater levels of flexibility to manage risk.”

The guidance says that the Council’s recent experience has shown that half of people who use reablement do not need support afterwards and that it is estimated that savings of £3.2m will be made over two years by providing this service to 85% of social care customers. It should be noted that preventative services of this kind are in line with the central Government guidance to local authorities. With regards to proposed changes to the RAS the Council confirmed that it would continue to meet substantial and critical needs and then explained that “needs will be met in different ways and there would be some changes to the services (customers) currently receive”.

The EIA is said to have relied upon the information gleaned from the consultation to the extent that what are described as ‘modified’ proposals were put to the Health and Wellbeing Overview and Scrutiny Committee, which were approved by the Executive on 14 September 2011. The proposals put to the Executive followed through the full Council’s decision relating to eligibility by confirming that substantial needs would still be met but that those ‘universal needs not directly related to personal care’ would be met by commissioning changes e.g. by the Council assisting the families of service users, the community, charities and voluntary or commercial organisations to provide the same. The impact was described in the EIA as follows:

“Impact on Type of Provision to Customers

These proposals including the adjustment of the RAS will redefine the offer and reduce the types and choices of provision in certain areas whilst maintaining the commitment to meeting all ‘substantial’ needs; it is proposed that those universal needs which are not directly related to personal care such as cleaning, shopping, pension collection and laundry will no longer be directly provided and funded by the Council. Instead, the council will assist individuals to have those needs met from within the family or wider community, from voluntary organizations or charities, or from commercial organisations. These commissioning changes will be in place before any changes are made to individual care packages. This will reduce risks associated with the proposed changes.”

Critically in correspondence between solicitors in October 2011, the EIA commitment was explained by the Council’s officers as follows:

“As stated in the report, the proposal is that consideration will be given to providing these services in other ways when needs are assessed (see eg paras 7.5 and 8.7). However, as the report makes clear no changes will be made unless an individual’s needs will continue to be met and pending any appeal.”

The references are to the report to the Executive which at the cited paragraphs confirms that the Council will meet assessed eligible needs, that there will be a new appeals process and that although some people will receive less money, no person’s individual budget allocation will be changed until an alternative method of meeting the needs in question has been identified or the appeals process has been determined. In so far as existing services will not be funded in the future there is a further commitment in the mitigation section of the EIA in respect of the resources that may be needed to provide for an individual’s eligible needs until an alternative is identified or developed as follows:

“…Assessment staff must ensure alternative sources are available to provide the services no longer regarded as eligible. If they cannot, and the need still exists then Assessment staff may apply to Funding Panels for additional resources to meet needs until some other forms of support are developed.”

Although it can be submitted that the integrity of the service depends on the detail and propriety of the assessment of the individual’s eligible needs and a rigorous and transparent allocation of funds and services to meet those needs so that a person with an identified characteristic is not overlooked or unfairly discriminated against, that is the overt purpose of the law and guidance in this field. If in making an individual decision the Council avoids the safeguards it has set itself in order to ensure that the process is lawful, for example by failing to meet an assessed and eligible need by alternative means than a direct payment, then it would no doubt be the subject of an appropriate claim. That is not the factual circumstance upon which the claimants rely.

In summary, therefore, an adverse impact of the budget proposal was identified which was confirmed as to its particulars in the subsequent EIA. Safeguards were identified to meet needs both on a strategic and individual client basis. These included a specific budget contingency to provide flexibility both to abide the event of the consultation process and EIA and to ensure that assessed eligible needs were met, a commitment to continue to meet assessed eligible needs, new appeals and funding panels processes and an interim commitment to continue to fund assessed eligible needs that it is decided are to be met by alternative means until the alternative is identified and developed and the appeals process complete. The claimants complain in submissions that this is a wholly novel mechanism which is by implication untried and untested. That does not make it unlawful in principle and understandably having regard to the inception of this claim, there is as yet no claim as to its operation in practice.

The claim in respect of the City Council’s budget is based solely on an alleged failure to comply with the ‘disability equality duty’ contained in section 49A of the DDA 1995 which was still in force at the time the Council took its budget decision on 9 March 2011. Section 49A(1) DDA 1995 provided that:

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

(a)

the need to eliminate unlawful discrimination and victimisation;

(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.”

The disability equality duty was repealed on 5 April 2011 but its effect was then subsumed in the general public sector equality duty imposed by section 149 EA 2010 which consolidated a number of such duties with amendments. The Council was invited to consider the budget for 2011/12 by reference to this duty as it was the duty that would be applicable in the year for which calculations were made and in which Executive decisions would be required to give effect to them. Section 149 EA 2010 provides, inter alia, that:

“(1)

A public authority must, in the exercise of its functions, have due regard to the need to –

(a)

Eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b)

Advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it:

(c)

Foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

….

(3)

Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to-

(a)

remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

(b)

take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;

(c)

encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

(4)

The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities.

(5)

Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to-

(a)

tackle prejudice; and

(b)

promote understanding.

(6)

Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.

(7)

The relevant protected characteristics are-

age;

disability;

gender reassignment;

pregnancy and maternity;

race;

religion or belief;

sex;

sexual orientation.”

The relevant protected characteristics which relate to the claimants in this case are age and disability.

No issue is taken with the proposition that the setting of a budget and the provision of adult social care are functions of the Council to which the duties apply. A function is an activity carried out by a local authority: this may be the discharge of a statutory duty, the exercise of a discretion vested in it or the carrying out of a common law obligation. In Pieretti v Enfield [2010] EWCA Civ 1104; [2011] HLR 3 at [25] – [26] Wilson LJ rejected the argument that the section 49A DDA 1995 duty applied only to the culmination of a housing authority’s duties under the part VII of the Housing Act 1996. He found that the duty applied to the “discharge of its prior duties” such as the duty to make enquiries and review any decision. This analysis is consistent with the DRC Code of Practice at 1.13. Consultation would on this basis also be an activity in which the defendant was engaged and accordingly a function for the purpose of the duties.

Both section 49A(1) DDA 1995 and section 149(1) EA 2010 require a public authority to “have due regard to … the need” to achieve certain goals. Due regard was said by Dyson LJ in Baker v Local Government Secretary [2009] PTSR 809 at 821 to be “the regard that is appropriate in all the circumstances”. In R (Domb) v Hammersmith and Fulham LBC [2009] EWCA Civ 941 at [52] it was said per Rix LJ:

“Our attention has been drawn to a number of authorities on the need to have due regard... I find the greatest help in the judgments of Dyson LJ in Baker (dealing with the RRA) at paragraphs 30ff and of Scott Baker LJ in Brown (dealing with the DDA) at paragraphs 89/96, where each of them summarises what is involved in the duty to have “due regard”. For present purposes I take from those summaries in particular the observations that there is no statutory duty to carry out a formal impact assessment; that the duty is to have due regard, not to achieve results or to refer in terms to the duty; that due regard does not exclude paying regard to countervailing factors, but is “the regard that is appropriate in all the circumstances”; that the test of whether a decision maker has had due regard is a test of the substance of the matter, not of mere form or box-ticking,..”

To which one can add what Pill LJ said in R (Harris) v Haringey LBC [2010] EWCA Civ 703, [2011] PTSR 931 at [40]:

“Due regard” need not require the promotion of equality of opportunity, but on the material available to the council in this case it did require an analysis of that material with the specific statutory considerations in mind … ”

The substantive obligation is thus to have such regard to the relevant needs as “is appropriate in all the circumstances”. This was recently confirmed by Lord Brown, giving the leading judgment in the Supreme Court, in R (McDonald) v Kensington and Chelsea LBC [2011] UKSC 33, [2011] PTSR 1266, at [23]. There are two, inter-related aspects to that obligation: (a) how far to investigate what impact (if any) the decision to be made may have on the needs to which regard must be had and (b) what weight to give to any anticipated impact on those needs relative to other material considerations. What may be “appropriate” in each respect is a matter of judgment for the authority.

What is the task of the court? It is to review whether in these respects what an authority did was something no reasonable authority could have thought appropriate in all the circumstances. It is not the court’s function to decide for itself what was appropriate in all the circumstances in these respects. When statute requires consideration to be given by an authority to a material consideration, it is for the authority to determine what investigation into it may be required to obtain the necessary information to have regard to it and what relative weight to give to it. The Court will review what the authority did to ascertain whether what it did or did not do was something no reasonable authority could have done in the circumstances: see eg R v Westminster City Council ex p Monahan [1990] 1 QB 77 per Nicholls LJ at p117-8; R (Khatun) v Newham LBC [2004] EWCA Civ 55, [2005] QB 37, per Laws LJ at [23], [33]-[36] (with whom Wilson and Auld LJJ agreed at [94] and [95] respectively); R (National Association of Health Stores) v the Department of Health [2005] EWCA Civ 154 per Sedley LJ at [1]-[2], [51]-[65], per Keene LJ at [75]; Greenpeace Ltd v the Secretary of State [2005] EWCA Civ 1656 per Laws LJ at [25] and [26] (with whom Wall and Mummery LJJ agreed at [41] and [42] and Tesco Stores Ltd v the Secretary of State [1995] 1 WLR 759 per Lord Hoffmann at p784.

The claimants contend in their Amended Grounds and submitted during the course of oral argument that “the court must review whether ‘due regard’ has been paid, not merely consider whether the absence of due regard was Wednesbury unreasonable”. This is a false contrast which could lead to a mistaken conclusion. That the court must review whether due regard to the relevant needs has been had says nothing about the basis on which such a review may be carried out. If no due regard has been had to such needs, then the duty has not been complied with regardless of whether a reasonable authority would have failed to have regard to it but that does not mean that in determining whether the regard which was had to such needs was appropriate in all the circumstances the court does not consider whether or not a reasonable authority could have thought it appropriate: it does.

In so far as the claimants pursue their interpretation of the test, I have come to the conclusion that I agree with the defendants that the claimants’ submissions are based on a misreading of paragraph [72] of the judgment of Davis J in R (Meany & Ors) v Harlow DC [2009] EWHC 559 (Admin) where all that the learned judge was doing was to reject a false choice being presented to him by counsel in that case. Regrettably, in my respectful opinion, the misreading also appears to have been adopted by the court in R (Boyejo) v Barnet LBC [2009] EWHC 3261 (Admin) at [56] – [57] without citation of the relevant authorities. Even if the 5 authorities cited by the defendants in support of their interpretation (see above at paragraph 48) are limited by their facts or the different statutory schemes with which they were concerned, they are relied upon simply for the description of a principle which is well known and which needs no further elaboration by this court.

In R (W, M & Ors) v Birmingham CC [2011] EWHC 1147 Walker J accepted 22 propositions about the content of the disability equality duty agreed between counsel for the parties to that claim. That they were agreed rather than determined by the court is apparent from the report at [151]. It was initially suggested by Mr Wise QC for the claimants that this court should adopt these propositions. In oral argument before this court it was agreed that there was no necessity for this court to do so and that as they are not an agreed basis for the interpretation or application of the duty, this court should happily leave their approval or otherwise to others who might have a purpose in undertaking that task.

It is clear that what is appropriate in all the circumstances includes on the one hand the importance of the context to the elderly and disabled (i.e. the impact of the proposals) and on the other hand any countervailing factors relevant to the performance of the public function by the Council. Ultimately, how much weight is to be given to each of the factors in play is a matter for the Council not the court although it can be submitted with some force that the disability equality duty is at its most important when questions arise which affect disabled people (see, for example: DRC Code of Practice, paragraph 2.36).

So far as the requirements of a fair consultation are concerned, the law was not in issue between the parties. In R v North and East Devon HA ex p Coughlan [2001] QB 213 the Court of Appeal set out the principles as follows:

“108.

It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is to be embarked upon it must be carried our properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response, adequate time must be given for this purpose, and the product of consultation must be conscientiously taken into account when the ultimate decision is taken: R v Brent London Borough Council, Ex p Gunning (1985) 84 LGR 168”

“112.

It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory regulation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this”.

The claimants contend as follows:

General: I have already commented that the budget strategy was as a matter of principle lawful and in accordance with good practice. Save as respects whether due regard was had to the public sector equality duty or rather the DDA 1995 duty, the claimants do not suggest otherwise. Good governance demands that a budget is not only an estimate of planned spending, it is also a projection based upon foreseeable risks which includes a contingency for uncertainties. Where risk assessments are incomplete or inchoate and/or financial circumstances are such that predictions are necessarily less certain, the contingency becomes all the more important. Here it was crucial. Were this not to be the case, budgets of many public bodies would be impugned by the erroneous elision of uncertainty with unfairness and/or illegality. That is not in any way to suggest that the public sector equality duty or its predecessor do not apply to budgetary decisions: they categorically do, but where flexibility is built into the budget so that subsequent corporate decisions and decisions relating to individuals can still lawfully be made by reference to the potential impact of the proposals on the persons affected then it is possible for the duty to be complied with i.e. there is nothing wrong in principle with such an approach and nothing inconsistent with the duties under the DDA 1995 or the EA 2010.

In this regard I find myself in agreement with Kenneth Parker J in JG and MB v Lancashire CC [2011] EWHC 2295 (Admin) at [48] to [51] in particular at [50] albeit in the different factual circumstances of that case:

“The economic reality was that to meet imperative needs of reducing expenditure it would be extraordinarily difficult to avoid an adverse effect on adult social care. But there remained flexibility as to how any such effect on disabled persons could be minimised and mitigated… ”

I respectfully agree that this view of principle is reinforced by the application of the perspective provided by Ouseley J in R (Fawcett Society) v Chancellor of the Exchequer [2010] EWHC 3522 (Admin) at [15] to local government budgets. This was helpfully summarised by Kenneth Parker J in the Lancashire case at [52]:

“in my view it was sensible, and lawful, for the Defendant first to formulate budget proposals and then, at the time of developing the policies that are now under challenge, to consider the specific impact of proposed policies that might be implemented within the budgetary framework. ”

In coming to this conclusion and although the point was not referred to by either party, I am cognisant that an ex post facto rationalisation which seeks to excuse an adverse effect subsequently identified is not the same as and will not pass as a substitute for due regard being had at the time when the budget was approved. It is not said that this is what happened in this case. With these general observations in mind, I now turn to each of the specific grounds in turn:

There is no evidence that the defendant paid any regard to the disability equality duty: The claimants’ case is that the Council paid no regard at all to the duty in setting the budget, that they did not have the specific statutory considerations in mind and that any general awareness they may have had was insufficient. What is needed and was absent, they submit, is evidence of an assessment of practical impact and steps to be taken so as to promote equal opportunity.

There is no requirement to refer in terms to the duty: R (Domb) v Hammersmith and Fulham LBC supra at [52] and the question is whether the decision maker has in substance had due regard to the relevant statutory need: R (Baker) v SoS supra at [37] and [40]. The duty to have due regard does not involve the taking of any prescribed step nor the achievement of a result. The regard is what is appropriate in the circumstances, namely at a point where the budget was set and a commitment to engage in an impact assessment was acknowledged.

Members attention was drawn to the Council’s duties under the EA 2010 into which the section 49A DDA 1995 duty was subsumed. This was done in the Report on the Revenue Budget 2011/12 and 2012/13 published on 8 February 2011 and considered by the Executive on 16 February 2011 which was before the Council on 9 March 2011. Although a submission was made by the claimants that the duties are different that was not developed and does not stand scrutiny when the statutory duties are compared. It is clear, therefore, that the Council had the statutory duties in mind.

The budget was constructed following a pre-budget consultation that led to a framework and principles whose overt aim was to safeguard those in greatest need and to provide sufficient resources to effectively safeguard and protect the most vulnerable residents of the City while increasing independence and reducing dependency where appropriate. This is at least evidence that the Council had the substance of the statutory duties in mind. The budget was drawn on the basis that the Council would be able to continue to meet its statutory obligations and the needs of the disabled and elderly as vulnerable people and monies were identified for that purpose. It was recognised that further consultation and equality impact assessments were required and that decisions by the Executive in consequence upon the same would be needed involving the use of additional resources from reserves if necessary. The defendant subsequently consulted and assessed the impact of the proposals before a decision to implement the same in modified form was made by the Executive in September.

There is a theme to the submissions made by the claimants which is that the evidence they seek and which they submit is absent is that of decisions made to promote equality of opportunity and steps taken in that regard i.e. practical measures. That is not the same as having due regard. The duty is to have due regard not to achieve results. The Council recognised the need for an analysis of the impact which it acknowledged would have to be taken into account. It put in place a strategic response i.e. a contingency fund and guarantees as to how an individual’s needs would still be met and consequent upon its consultation and EIA, interim i.e. procedural and substantive protections for those affected. In my judgment, that amounted to a consideration of impact which was consistent with the need to have due regard and was a consideration of substance not mere form: it involved a commitment, if necessary, of real money.

Having regard to the needs of the elderly and the disabled does not exclude other considerations and the weight which is to be attached to each consideration. The Council was faced with the difficult task of making large savings and in setting a budget in a very short timescale from the time the Government’s financial settlement was provisionally announced on 13 December 2010 and finally settled on 31 January 2011. The Council had to set its budget by no later than 11 March 2011. A great deal of work was done to inform elected Members and to explain and challenge proposals in the month and a half that was available to the Council.

The absence of any EINA provides evidence of a lack of due regard: There is no statutory duty to carry out a formal EIA or EINA: R (Domb) v Hammersmith and Fulham LBC supra. Accordingly, the absence of the same at what is alleged to be a material time is not evidence of what the Council failed to do.

That no regard was had to the impact of any proposed cuts on disabled people and whether the detriment to disabled persons could be avoided or mitigated by (for example) finding savings elsewhere in the budget: This ground was not pursued in oral argument and related to an earlier formulation of the claim within which it was proposed to adduce expert evidence concerning among other things whether the Council’s budget could have been alternatively constructed. That evidence was not adduced. In any event, the Council plainly had due regard to the needs of the disabled and other vulnerable groups when setting its budget.

The Consultation: The claimants have permission to impugn the consultation after the budget on the basis that the Council failed to provide sufficient information and opportunity to respondents to make an intelligent response. In addition, they seek permission to pursue a claim that the consultation was unlawful because it was launched without due regard to the needs set out in sections 149(1)b) and 149(3)b) EA 2010, namely the need to advance equality of opportunity and the need to take steps to meet the needs of (here) disabled and elderly people.

The only examples of a failure to provide sufficient information relate to a) the failure to identify which individuals are expected to be “within the 85% who are diverted to reablement services” and b) the failure to explain “how precisely RAS allocations are to be reduced”. In addition it is alleged that the consultation was unfair because of the way the questions were framed.

That the consultation was extensive does not appear to be in doubt. Its thoroughness was not impugned in the claimants’ Grounds. Aside from the published documentation it included 40 events, open meetings and a support service to help complete the questionnaire and provide clarification 24 hours a day and 7 days a week. The terminology of the questions complained of was appropriately amended and extended time was provided for the revised consultation exercise. There was nothing unintelligible or unfair about the consultation process. In addition, the claimants seek to impugn the lack of intelligible information in respect of two aspects of the consultation.

The complaint about the reablement proposal is misguided. That is a forecast of an enhanced service which aims to support 85% of those referred to it with a provision which will arguably improve the service delivered to vulnerable adults while recognising that hitherto that service has been limited in not being able to respond to all those suitable. No-one argues that the extension of reablement is anything other than desirable in principle. The estimate of savings which might result was no more than an estimate which has been explained by the Council but is not a necessary component to an understanding of how an enhanced reablement service might benefit the claimants and others.

The second complaint relates to the amount of money to be given to people with care needs in lieu of the direct provision of services to them. Theoretical savings in these RAS allocations were identified by reference to alternative ways in which needs might be met. As this is a matter for individual assessment in each individual’s case underpinned by the commitment that needs would continue to be met by funding unless and until an alternative service provision is identified to meet the need, it would not be possible to explain whether or how an individual’s direct payments would be reduced. Furthermore, the claimants labour under a misapprehension caused in part by the defendants. They submit that the Council will no longer provide for non-personal care needs. That proposition is derived from an unfortunate and inelegant use of words by the Council in its EIA whereas the Council has made clear and continues to stress that the RAS will continue to ensure that all identified eligible needs are met.

In respect of neither specific complaint, therefore, can it be said that insufficient information was provided nor that the information actually provided was unintelligible.

Consultation on the revised social care offer is a function to which the public sector equality duty attached and although the claimants do not formally concede it, they acknowledge that in adopting the adult social care policy and implementing the budget relating to it by the decision taken on 14 September 2011 the defendant says that it paid due regard. The claimants submit that if the defendant did, then it did so in relation to a separate though related function i.e. the ultimate decision rather than the decision to consult.

In order to understand this element of the proposed claim one has to refer to what the claimants say the defendant needed to do. In oral submission this was summarised as follows:

“a.

identif(y) any detriment to disabled and/or elderly people from the proposals on which it intended to consult;

b.

consider whether to proceed with the consultation was consistent with due regard to the specified needs;

c.

provide its assessment to consultees to enable them to comment on any detrimental impact in the course of the consultation”

This is no more than a re-working of that which is required by the well known authorities on a fair consultation process cited above. In other words, and without prejudice to the full narrative of the authorities: was the proposal set out with clarity, were sufficient reasons given to enable an intelligent response to be made and was adequate time allowed? For the reasons given above, the answer to each of these questions is, yes.

In any event, the Council submits that the claimants are factually incorrect. The budget decision was taken on the basis that if it was subsequently decided not to implement any particular proposal having regard to the needs of the elderly and disabled (among others) then reserves might have to be used to support expenditure i.e. that expenditure incurred in adult social care might be more than that allocated to it. Accordingly, in making a decision to embark upon the consultation with the overt purpose of further considering the budget proposal in light of the impact on the disabled and elderly by providing respondents to the consultation with all the information available to the Council, the defendants undoubtedly had due regard to the public sector equality duty.

For all of these reasons, I have come to the conclusion that the claim should be dismissed.

Whether relief should in any event be granted? If I am wrong about the merits of the claims being advanced, the defendants say that the claim was made with undue delay. As I have already set out, if any relief is to be granted in respect of the Council’s budget calculation, as a matter of law, it must be quashed. This would invalidate the council tax that has been set and incur additional cost in the re-calculation and re-setting of the tax and the re-issue of tax demands. In excess of 220,000 demand notices were issued on 15 March 2011. The claimants acknowledge that the issues raised by this claim are important and urgent but, despite this, the claim was not filed until 3 June 2011 and the papers were not served on the Council until 8 June 2011, almost exactly 3 months after the date of the budget decision.

It is clear from the sequence of events after D contacted his solicitors on 31 March 2011 that at least once if not more than once his solicitors “held off issuing proceedings” while asking the Council to re-consider its position. There was no good reason for the delay, which in giving permission Kenneth Parker J described as unacceptable. With respect, I agree. The cost of re-setting the amount of council tax would have to be met from the resources which the Council has available in a sum in excess of £650,000 excluding the cost of staff time. There would also be the associated cost of the effect of the delayed receipt of revenues.

In order for the claimants and adult social care customers to benefit from the grant of any relief, the resources available to the adult directorate have to increase. The Council has demonstrated that if it departed from its policy of freezing council tax (in order to effect an increase in revenue from the tax) it would then lose its grant of £3.489m not just in this financial year but in each subsequent year until 2014/15. It should be noted that this loss is more than the estimated savings proposed in the redefined social care offer. In any event, any increase within the Government’s capping criteria is so marginal as not to justify taking that step. There is accordingly clear evidence that there is no realistic prospect that the Council would set a higher council tax with the obvious implication that any relief which quashed the same would only have the effect of reducing resources available.

Accordingly, even if the claim were to have merit, I have come to the clear conclusion that invalidating the council tax for the year would be disproportionate, contrary to the public interest and serve no intelligible purpose. There also remains a quite separate argument that the claimants have not addressed: if the subsequent decision of the Executive of the Council made after full consultation and in the light of an EINA on 14 September 2011 is valid then any complaint in respect of the budget calculation is academic.