R Mae Magness (by her mother and litigation friend Ruth Magness) v Powys County Council
| Jurisdiction | England & Wales |
| Judge | Sir Wyn Williams |
| Judgment Date | 18 July 2019 |
| Neutral Citation | [2019] EWHC 1901 (Admin) |
| Date | 18 July 2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1892/2019 |
[2019] EWHC 1901 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Wyn Williams
(Sitting as a Judge of the High Court)
Case No: CO/1892/2019
Margherita Cornaglia (instructed by Watkins & Gunn, Solicitors) appeared for the Claimant
Matthew Purchase (instructed by the Defendant's Legal Services Department) appeared for the Defendant
Hearing date: 9 July 2019
DRAFT JUDGMENT
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Introduction
Library and associated services in the town of Welshpool are currently provided from a building used solely for those purposes. On 13 February 2019, the Defendant, by its duly appointed decision makers, decided that such services would, in the future, be provided from the building which is known as Powysland Museum. As its name suggests, this building is currently used as a museum. The Defendant intends that the library and museum will be “co-located” in the same building.
In these proceedings the Claimant seeks judicial review of the decision of 13 February 2019. The Claimant asserts that the decision was unlawful upon two bases. First (Ground 1), it is said that the Defendant failed to comply with duties to which it was subject pursuant to section 149 Equality Act 2010 (the public sector equality duties). Second (Ground 2), the Claimant argues that a public consultation which proceeded the decision of 13 February 2019 was unlawful because, at the time of the consultation, the Defendant had, already, determined that its plan for co-location should take place.
At the conclusion of the hearing on 9 July 2019 I indicated that I wished to take time to consider my decision, in particular, so that I could read a number of authorities which had been handed to me shortly before the hearing commenced.
It is also worth noting at this point that Counsel for the Claimant presented a skeleton argument in support of the application for permission. That skeleton, in respects which I will indicate below, raised issues not strictly encompassed within the “Detailed Grounds of Challenge” which accompanied the judicial review claim form.
The decision of 13 February 2019 was not taken by the full council of the Defendant but, rather, delegated to “individual portfolio holders” in consultation with the Director of the Environment (hereinafter referred to as the “decision makers”). The decision-makers were the portfolio holder for Young People and Culture and the portfolio holder for Highways, Recycling and Assets. Both those persons were council members. It has not been suggested that such delegation was unlawful. However, I have thought it appropriate to identify the decision-makers since, inevitably, it is essential in a case of this type to analyse the decision-making processes which led to their decision and, so far as possible on the available evidence, to make a judgment about the factors which the decision-makers took into account when making their decision.
Background
The salient background facts are, in the main, uncontroversial. The building in which library services are currently provided within Welshpool was constructed in 1983. It has internal floor space of 406 square metres which includes a separate, upstairs, area for group activities.
In 2018, in response to budgetary requirements, the Defendant began an assessment of options for re-locating some of its employees in the north of the county in and around Welshpool. One of the options considered involved the closure of premises known as Neuadd Maldwyn and the consequent relocation of employees based at those premises to other buildings in the north of the county. It was against this background that the possibility of locating both library and museum at Powysland Museum came to be considered.
Between 24 October and 30 November 2018 the Defendant consulted its employees about its proposals for their location. In essentially the same period, namely 22 October to 25 November 2018, the Defendant consulted the public about locating the library and museum within Powysland Museum.
On 18 December 2018 the Cabinet of the Defendant approved, subject to formal consultation with staff, a proposal to close Neuadd Maldwyn and disburse the Defendant's employees working at those premises to other locations. In order to reach its decision the Cabinet was provided with a detailed report together with appendices.
As well as resolving to close Neuadd Maldwyn, the Defendant's Cabinet delegated authority to the decision-makers to determine the office locations for the employees vacating Neuadd Maldwyn.
As I have said, on 13 February 2019 the decision under challenge was made. To assist the decision-making process, a report was prepared by the Principal Librarian and Principal Lead, Museums, Archives and Information Management. The report had a number of appendices and it included an impact assessment of the proposal under consideration. The report described the proposal as “to co-locate Welshpool Library into Powysland Museum, creating one public resource”.
The Grounds of Challenge
Ground 1
Section 149 of the Equalities 2010 Act, so far as relevant to this case, provides as follows:-
“(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.
(2) …
(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.”
By virtue of section 149(7) of the Act age is a relevant protected characteristic.
Section 149 of the 2010 Act has been the subject of significant litigation since its enactment. In particular, there have been a number of challenges in the Administrative Court in which it has been argued that the public authority being sued has failed to have regard to its public sector equality duties under section 149. In a judgment of this type, no useful purpose would be served by citation from the numerous authorities. In my judgment, I can assess whether the decision-makers in this case had due regard to their duties under section 149 by applying the principles formulated at paragraph 30 of the detailed grounds of challenge which are derived from the judgment of McCombe LJ in Bracking v Secretary of Statement for Work and Pensions [2013] EWCA Civ 1345. I should record, too, that I have sought to follow, conscientiously, a short passage from the judgment of Elias LJ in R (Hurley) v Secretary of State for Business,...
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