What now for deprivations of liberty?
What will the effect of the postponement of the Liberty Protections Safeguards be on local authorities? Local Government Lawyer asked 50 adult social care lawyers for their views on the potential consequences.
SPOTLIGHT |
The Court of Appeal has rejected a judicial review challenge brought by a law centre after a local authority decided to withdraw its funding.
Greenwich Community Law Centre (CLC) had appealed against a ruling by Mr Justice Cranston in the High Court in January this year in favour of Greenwich Council. The authority's decision-making process saw the allocation of funds to Plumstead Community Law Centre and Greenwich Housing Rights.
The CLC made a number of submissions to the judge in its challenge to the tender process, all of which were unsuccessful.
It then sought to appeal nearly all of Mr Justice Cranston’s conclusions, but the only ground on which it was given permission to appeal was over the question as to whether Greenwich Council complied properly with its public sector equality duty.
In Greenwich Community Law Centre, R (on the application of) v Greenwich London Borough Council [2012] EWCA Civ 496 the law centre submitted that the local authority’s Cabinet had made the final decisions on awarding contracts without complying with the s. 149 Equality Act duty.
The claimant argued that the contract awards should therefore be unscrambled and the exercise begun again.
Giving the unanimous decision of the court, Lord Justice Elias said the court needed to ask whether as a matter of substance there had been compliance. At the same time it must ensure that it did not micro-manage the exercise, he said.
The Court of Appeal judge added that it was only if a characteristic or combination of characteristics were likely to arise in the exercise of the public function that they needed to be taken into consideration.
“I would only add the qualification that there may be cases where that possibility exists in which case there may be a need for further investigation before that characteristic can be ignored,” he said.
“Perhaps more accurately it may be said that whilst the council has to have due regard to all aspects of the duty, some of them may immediately be rejected as plainly irrelevant to the exercise of the function under consideration – no doubt often subliminally and without being consciously addressed….,” the judge added. “It is then a matter of semantics whether one says that the duty is not engaged or that it is engaged but the matter is ruled out as irrelevant or insignificant.”
Lord Justice Elias said he had no doubt that Greenwich Council’s own priority groups in practice dealt with all those groups with the protected characteristics identified in s. 149 which realistically might have been affected by the decision.
“Not only did the council have due regard to the implications of the decision on those groups, it actually structured its policy so as to ensure that they were principal beneficiaries of such funds as remained available,” the judge said. “As Cranston J aptly remarked, the logic of the tendering exercise meant that the performance of the duty was integral to the outcome.”
Lord Justice Elias also found that:
Lord Justice Elias described as “misconceived” a contention that the fact that by October 2011 the final locations for the various services had still not been determined – with the final detail left in the hands of officers – demonstrated that the duty could not have been complied with.
The purpose of the duty was to require consideration of equality implications at the time policy was drafted, the judge said.
“The fact that it is a continuing duty does not mean that there has to be further detailed consideration when the general framework is made concrete, or whenever there are minor changes of detail,” he added. “It would make administration intolerable and grossly inefficient if every aspect of policy left to officers' discretion had automatically to be returned for further consideration of the equality implications.”
Lord Justice Elias therefore dismissed the appeal.
Philip Hoult