R (on the application of (1) Lisa Williams (2) Nicholas Dorrington v Surrey County Council
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE WILKIE,Mr Justice Wilkie |
| Judgment Date | 03 April 2012 |
| Neutral Citation | [2012] EWHC 867 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: CO/511/2012 |
| Date | 03 April 2012 |
[2012] EWHC 867 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Wilkie
Case No: CO/511/2012
Helen Mountfield QC, Rachel Logan (instructed by Public Interest Lawyers) for the Claimants
Elisabeth Laing QC, Patrick Halliday (instructed by Surrey County Council Legal Services) for the Defendant
Hearing dates: 19 & 20 March 2012
Introduction/Brief Chronology
The Claimants challenge a decision of the Defendant initially taken on the 27 September 2011 that libraries provision, in 10 identified areas, be delivered via the Community Partnership model ("CPLs").
The challenge is exclusively on the basis that it is said that the Defendant, in making that decision, failed to comply with Section 149 of the Equality Act 2010, to give "due regard" to three identified statutory equality needs (the Public Sector Equality Duty or PSED). The brief history of the events giving rise to this decision and challenge is as follows.
The Defendant is a local authority, one of whose functions is the provision of public libraries. Section 7(1) of the Public Libraries and Museums Act 1964 imposes a duty upon the Defendant to provide a comprehensive and efficient library service for all persons desiring to make use thereof.
The Defendant currently operates its library services through 52 branch libraries. The library branches are staffed by professional library managers and library assistants, none of whom are qualified professional librarians. Since 2005 the Defendant has been introducing self-service computer terminals used by the public to borrow books in all of its libraries.
In common with all local authorities the Defendant is under intense pressure to reduce spending. In the financial year 2011–2012 it was required to find £59.3m savings despite an increasing demand for its services. The Defendant's medium term financial plan for 2010 – 2014, adopted in February 2010, required its library service to save £195,000 a year. Since then further budgetary pressures have required additional savings.
In response to the need continually to improve its services and to respond to these financial pressures, in 2009 the Defendant adopted a programme of Capital Public Value Reviews (PVRs), looking at all of its services over a three year period.
Between May 2010 and January 2011 it conducted a PVR of its library service. That culminated in a report provided to the Defendant's cabinet on 1 st February 2011 (The February Report).
That report included a consideration of a cost effective branch network. The PVR recommended that the Defendant concentrate its resources on maintaining a core branch network, reflecting patterns of usage, and consult about designing a CPL approach at selected libraries. The cabinet resolved on 1 st February 2011:
"to work with parish councils, local charities, community groups and organisations with the aim of inviting interest to establish community partnerships at selected libraries, and co-designing and developing a Surrey model for locally managed and partnered libraries, and that a progress report be submitted to cabinet following the consultation period"
and
"that local communities lead in driving the community partnering approach for libraries forward".
The PVR had, through a process of scoring all 52 branch libraries in accordance with thirteen objective criteria, identified 11 of the lowest scoring libraries to be considered for the proposed CPL approach.
The cabinet decision was "called in" for reconsideration by the relevant council "select committee" because, amongst other things, it was felt that local councillors had not been properly consulted. However, after the decision had been passed back to the cabinet for reconsideration, the cabinet, on 1 March 2011, retook the decision in the same terms.
The officers then embarked upon a process of consultation with two focuses:
i) exploring community interest in providing CPLs and communicating with community groups in order to develop plans for CPLs, and
ii) holding meetings on the subject of the PVR report with Disability Empowerment Boards (DEBs), which are representative bodies for disabled persons, as well as with the Defendant's Equalities External Advisory Group (EEAG).
That consultation period ran from March until September 2011, at the end of which the Defendant's cabinet, on 27 September, considered a report described as "a progress update" and which provided the cabinet with;
"a position statement on the implementation of the key library Public Value Review recommendations. It outlines the current position with the establishment of community partnered libraries…"
That report recommended that the cabinet "agree library provision in 10 identified areas be delivered via the community partnership model." The cabinet decided in accordance with that recommendation. Consideration was given by the "select committee", to "call in" that decision but, on the 18 October 2011, it decided not to do so. Accordingly, on that date, the decision came into effect.
The statutory scheme and relevant law
The Equality Act 2010 includes, amongst its stated purposes in its long title, the following:
(1) to reform and harmonise equality law and restate the greater part of the enactments relating to discrimination … related to certain characteristics,
(2) to require the exercise of certain functions to be with regard to the need to eliminate discrimination and other prohibited conduct,
(3) to increase equality of opportunity.
Section 149 provides for the Public Sector Equality Duty (PSED) in the following terms:
(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination … 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 … involves having due regard, in particular, to the need to—
(a) remove or minimise disadvantages suffered …
(b) take steps to meet the needs of persons …
(c) encourage persons … 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 … involves having due regard, in particular, to the need to—
(a) tackle prejudice
(b) promote understanding
(6) Compliance with the duties in this section may involve treating some persons more favourably than others …
(7) The relevant protected characteristics are—
(There are then set out 8 specific protected characteristics)
These provisions and their predecessors have been the subject of considerable judicial consideration both at first instance and, in a small number of cases, at appellate level. Save for one particular issue, to which I return below, there appears to be little dispute between the parties as to the approach the Court should take in considering the question of "due regard". They have been brought together conveniently in paragraph 31 of the decision of Mr Justice Blake in the case of R(Rahman) v Birmingham City Council [2011] EWHC 944 (Admin). I summarise them briefly below:
i) Due regard requires more than simply giving consideration to the issue and councillors should be aware of the special duties a council owes to the disabled before they take a decision R(Chavda) v LB Harrow [2007] EWHC 3064 (Admin).
ii) "Due regard" is 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 public authority must also pay regard to any countervailing factors. 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. (Dyson LJ (as he then was) in R(Baker) v SS Communities and Local Government [2008] LGR 239 and R (Brown) v SS Work and Pensions [2008] EWHC 3158 (Admin)).
iii) No duty is imposed to take certain steps or to achieve certain results. The duty is only to have due regard to the need to take the relevant steps. The Court will only interfere if the local authority has acted out with the scope of any reasonable public authority in the circumstances. The public authority will need to take steps to gather all the relevant information ( Brown).
iv) The law does not impose a statutory duty on public authorities requiring them to carry out a formal disability equality impact assessment (EIA) when carrying out their functions. At the most it imposes a duty on a public authority to consider undertaking an EIA along with other means of gathering information ( Brown).
v) The due regard duty must be fulfilled before and at the time that a particular policy, which will or might affect disabled people, is being considered by the public authority. It involves a conscious approach and state of mind. It must be...
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