Tiptoe through the Minefields. . .

May 3, 2011

Nicholas_Dobson_v2 Time travel back to May 1929 (some six months before the devastating financial crash) and you’d find Tiptoe through the Tulips topping the pop charts. But fast forward to Spring 2011, and Tiptoe through the Minefields is more likely to be on the lips of local authority lawyers and their finance colleagues. For recent caselaw has once again starkly highlighted the extensive and pervasive reach of public sector equality duties (PSED), and particularly for those seeking to make budget cuts.

Birmingham City Council has for instance been hit with two successful equalities challenges in recent weeks. Amongst these was the decision by Blake J on 31 March 2011 to rule unlawful the Council’s decision to terminate funding for three voluntary body providers of ‘Legal Entitlement Advice Services’ (LEAS), pending new commissioning arrangements (see R (Rahman) v. Birmingham City Council [2011] EWHC 944 (Admin)). Whilst the judgment usefully rehearsed the relevant principles it also demonstrated resonantly the onerousness for local authorities of ensuring compliance with these duties as they struggle to make financial ends meet.

The Council was challenged (amongst other things) for breach of the PSEDs, in particular those concerning race and disability. Whilst the Equalities Act 2010 (brought in to reform and harmonise equality law and restate substantive statutory provisions on discrimination and harassment in relation to protected characteristics) will now be the primary port of call in this area, in framing his decision, Blake J had referred to the earlier statutes.

However, the concepts he canvassed remain live. So the PSEDs require public authorities to have due regard to the need to eliminate unlawful discrimination and harassment, to promote equality of opportunity and good race relations and actively to take account of the disabilities of disabled people even where that involves treating them more favourably than others. The PSEDs also require authorities to promote positive attitudes towards disabled people and to encourage participation by them in public life.

All extremely worthwhile aims. However, trouble for authorities can arise when their actions are subjected to the testing forensic scrutiny of a legal challenge. For what might look to the authority like a fairly clear if painful decision to make alternative deployment of tight and diminishing public resources, will clearly be seen and interpreted in a very different light by those who will bear the brunt of that proposed decision. And the rich seams of equality law available to be mined by diligent claimant lawyers were apparent in the Rahman case.

Blake J carefully reviewed the law, noting that ‘due regard’ meant that which is appropriate in all the particular circumstances in which the authority concerned is discharging its public function in question. So, those taking the decision must clearly be aware of this duty, which must be fulfilled at the material time and which involves ‘a conscious approach and state of mind’. The duty must also be ‘exercised in substance, with rigour and with an open mind’ and is non-delegable and continuing.

In the circumstances of Rahman, Blake J accepted that the Council’s material decisions failed to have due regard to the PSED. The Equalities Impact Needs Assessment (EINA) seemed to have been ‘driven by the hopes of the advantages to be derived from a new policy rather than focussing upon the assessment of the degree of disadvantage to existing users of terminating funding arrangements until new arrangements can be put in place’. This looked like ‘policy based evidence rather than evidence based policy’.

In the circumstances, the Court expressed its intention of ensuring that current funding for the bodies concerned continues until either operative service recommissioning or a lawful decision to terminate funding before recommission is taken having regard to the PSEDs. Blake J observed that ‘even in straitened times the need for clear, well-informed decision making when assessing the impacts on less advantaged members of society is as great, if not greater’.

Whilst clearly the aims of equalities legislation are to be commended, these can, as mentioned, considerably inhibit the freedom of authorities to deploy public resources in the way they consider most effective and efficient having regard to their particular circumstances. For ultimately authorities will do what they properly wish and need to do and the most that can usually be achieved by a legal challenge is delay. And whilst such delay can no doubt be of considerable benefit to the providers and users of relevant services, it can equally be seen as a heavy financial burden on authorities who will have to redraw budgetary arrangements accordingly. But whilst Blake J did acknowledge that the continuing funding of the services in question ‘has significant budgetary implications’, he equally pointed out that the sums of money ‘result from an important error of law in decision making. . .’.

All judges can do of course is to interpret and determine the law before them and it is for Parliament to make any adjustments considered necessary by the legislature. But whilst all public authorities clearly need to act reasonably and responsibly, conscientiously serving the breadth of those they are set up to serve in line with democratically determined policy decisions, if the range and depth of equality obligations continues as currently interpreted, many more authorities seeking to balance their budgets will inevitably at some stage be treading on one landmine or another.

Bob Dylan once sang that he had spoken of equality ‘As if a wedding vow’. But he did go on Delphically to add: ’Ah, but I was so much older then/I’m younger than that now’.

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.