Equalities: due regard duly paid
Nicholas Dobson reports on a High Court ruling in a case where it was claimed that a council had breached the public sector equality duty when giving planning permission for the development of a school.
With the new year now well away from the service area and up to speed on the M2013, the minds of many local government lawyers will unlightly be turning to thoughts of financial austerity.
And in particular, whether the grim redundancy reaper is planning a personal call around budget time. For as recently reported in Local Government Lawyer, the squeeze is also grabbing some legal departments in its icy grip; Bristol and Newcastle being cases in point.
But the extent to which slicing away at legal budgets results in overall corporate savings remains to be seen. For assuming all lawyers are working efficiently and effectively and that the department is leanly but sufficiently geared to meet the authority’s core functional legal requirements (assumptions of course requiring testing), then cuts could well result either in rationing and consequent service ‘queues’ or more expensive external purchase - or both.
The reason of course for cuts now turning their Gorgon glare to legal is the multifarious number of demands on ever-diminishing council budgets. And not least amongst these are the time and expense involved in dealing with legal challenges. But whilst the Government is consulting "on a package of measures to stem the growth in applications for judicial reviews" and a minister has indicated that equality impact assessments are not in themselves a legal requirement (which of course is not the whole picture), in the meantime claims keep enthusiastically coming. And the public sector equality duty is fertile ground for claimants unhappy with all types of local authority decision. But the work involved in seeking to resist such claims is extensive and expensive and diverts essential authority energies from important core activities.
However, just before Christmas 2012, Lindblom J in the Administrative Court brought a little ‘comfort and joy’ to local government. For on 21 December 2012 in R (Coleman) v. Barnet London Borough Council [2012] EWHC 3725, he rejected claims that the Council had failed to discharge its public sector equality duty when it gave planning permission for the development of a school on land that was once a garden centre which had been of particular benefit to elderly people and those with disabilities.
Background to the Coleman case
The Claimant (who suffers from a chromosome abnormality) had with many other local people (including those who were elderly and had disabilities) gained benefit from attending a local facility called the Garden Centre. Unfortunately, however, the Centre sold the site to the trustees and governors or the Etz Chaim Primary School (the Trust - established under the Government’s ‘free schools’ programme) since the site was becoming unviable.
Planning permission initially granted by the Council for redevelopment of the site for school use was successfully challenged on the ground (amongst other things) that the Council had failed to discharge its public sector equality duties under section 149 of the Equality Act 2010 and was quashed by consent. A second application by the Trust for planning permission made in October 2011 was successful but once again challenged in the instant proceedings. However, this time the Council’s decision emerged intact from review.
The Public Sector Equality Duty
As indicated, this is a creature of section 149(1) of the Equality Act 2010 and provides that a public authority must, in the exercise of its functions, have due regard to the need: (a) to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Act; (b) to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it and (c) to foster good relations between persons who share a relevant protected characteristic and persons who do not share it. Under section 149(7) the relevant protected characteristics include age and disability.
By section 149(3), having due regard to the need to advance equality of opportunity between persons sharing a relevant protected characteristic and those who do not, involves having due regard, in particular, to the need to:
(a) remove or minimise disadvantages suffered by persons sharing a relevant protected characteristic connected to that characteristic;
(b) take steps to meet the needs of persons sharing a relevant protected characteristic different from the needs of persons who do not share it;
(c) encourage persons sharing a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
Under section 149(4) authorities need to take account of the disabilities of disabled persons while section 149(5) provides that having due regard to the need to foster good relations between those sharing a relevant protected characteristic and those not doing, involves having due regard in particular to tackling prejudice and promoting understanding.
Council decision
The decision was made in the light of a lengthy report on which Nathalie Lieven QC had advised. Ms Lieven was present at the relevant committee meeting of 31 January 2012. There had also been two consultation exercises. As Lindblom J went on to indicate, the report specifically acknowledged that the implication of the proposals for the Equality Act duties represented one of the main planning issues on which members had to focus. And the relevant statutory provisions were, as the judge pointed out "not only brought to the committee’s attention, they were set out in full" within the report. Consequently, "the members were made conscious of the task they faced, and this was done in the precise terms in which that task was set for them by statute".
The Council’s decision granting permission for the Trust’s development included the statement that: ". . . having paid due regard to the need to eliminate discrimination and promote equality with regard to those with protected characteristics, officers conclude that. . . the benefits to the wider community of the provision of new educational facilities outweighs [sic] the adverse impact on those with protected characteristics."
Court decision
Detailed submissions had been made on behalf of the Claimant indicating the need for a minutely engineered consideration of different categories and sub-categories of the protected characteristics in question. For, as the Court summarised the Claimant’s submission, it was only "with a much deeper understanding than it had of the particular effects on people with particular disabilities could it have properly performed its equality duty when determining the Trusts application for planning permission."
However, the Court rejected this approach, indicating that Counsel for the Claimant had "exaggerated what was required". It was not, in the view of Lindblom J, necessary for the Council to go beyond the relevant categories of protected characteristics (i.e. age and disability) nor to disaggregate the several types of disability by, for instance, giving separate treatment to physical, mental and learning disabilities.
The Court noted the observation of Dyson LJ in R (Baker) v. Secretary of State for Communities and Local Government [2009] PTSR 809 that the duty in question is not to achieve a result but to have due regard to the need to achieve the statutory goals. This distinction, said Dyson LJ, is "vital". And ‘due’ regard is that which "is appropriate in all the circumstances". As Aikens LJ indicated in the leading case of R (Brown) v. Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), whilst the decision-maker should have regard to any countervailing factors which in the relevant context are proper and reasonable for the public authority to consider, the weight to be given to such countervailing factors is a matter for the authority rather than the court, unless the authority’s assessment is unreasonable or irrational.
Performance of the duty must be an integral part of the formation of the decision and not merely justification for it. There must consequently be sufficient information to enable the necessary balancing exercise to be carried out and that information must be before the decision-maker.
The Court noted that the instant decision was one of a local planning authority to approve a scheme of development rather than a decision to withdraw or reduce a particular service. That of course did not mean that the public sector equality duty is less onerous but the circumstances in which the authority’s performance of the duty are scrutinized will inevitably be different. And here the facility the loss of which is said to have harmed the interests which section 149 was designed to protect, had already gone by the time of the Council’s decision. So the grant of planning permission did not cause that loss.
In the circumstances, Lindblom J found that the officers’ report displayed a coherent approach to the requirements of the relevant ‘due regard’ duty. For when:
". . .the committee resolved to grant planning permission the officers, and in their turn the members themselves, were conscious of the equality duty under section 149, conscious of the particular effects the development was likely to have on those with protected characteristics, and conscious that due weight should be given to those effects in the decision that had to be made."
Furthermore:
"The officers marshalled all the material relevant to the equality duty. They collected the facts relating to the use of the Garden Centre and the representations made about the impact of its loss on those who had used it, including, specifically, the elderly and the disabled. In their advice to the members they placed these facts and these representations within their planning analysis, having taken care to distinguish the material relating to those with protected characteristics from that relating to the local populace as a whole. They expressed their conclusions, which were conclusions on balance."
So guided, therefore, "the committee accepted the officers' advice and recommendation." In the circumstances, not merely in form but also in substance the Court found the equality duty to have been properly discharged. For the Council had:
". . . due regard to the need to achieve the statutory goals, not as an abstract exercise but with realism and common sense. It did what was appropriate in all the circumstances. It had regard not only to 'the importance of the areas of life of the members of the disadvantaged group. . .affected by the inequality of opportunity and the extent of the inequality' but also to the 'countervailing factors' to which due weight should be given."
So due regard was found to have been duly paid.
Comment
The public sector equality duty, entirely worthy as it no doubt is, has nevertheless proved to be a millstone around the necks of authorities seeking to make difficult decisions in testing financial circumstances.
But whilst the obligation is merely to have ‘due regard’ rather than to achieve any particular outcome, zealous claimants and their advisers have understandably sought to complicate the scope of what authorities are required to do. However, the Coleman decision (if it endures) has sought to rein in the more over-engineered species of approach. And whilst the authority’s decision was of course a planning matter concerning a site where the late-lamented facility had already closed, the Court’s summary of the law and his observations will no doubt be helpful to authorities grappling with decisions in this complex and contentious area.
But as January edges gradually towards spring, awaiting cue on the not too distant horizon, a very happy new year to all!
Dr Nicholas Dobson is a Senior Consultant with Pannone LLP specialising in local and public law is also Communications Officer for the Association of Council Secretaries and Solicitors.
January 2013