An open mind

Recent court rulings go to the heart of how decision-makers must approach the discharge of their duties under, say, equalities legislation. Tom Collins assesses the implications.

The Court of Appeal decision in R (on the application of Harris) v Haringey LBC [2010] EWCA Civ 703 has given further guidance as to how a local authority should ensure that it discharges its duties under the Race Relations Act (‘RRA’) 1976 s.71(1)(b) when taking decisions. Whilst local authorities will have to consider a number of factors when taking any decision, the Court of Appeal finding brings to the fore the considerations of equality legislation, to which local authorities should have reference.

The London Borough of Haringey granted planning permission for the redevelopment of an indoor market in which there were a number of business and residential units. The development involved the demolition of existing buildings and the erection of mixed use developments. A large proportion of the traders were from ethnic minorities, being either Latin American or Spanish speaking, and occupation of the business units and homes was predominantly by the black and ethnic minority community.

The appellants contended that, as a result of the decision, business rents would increase and there would be a significant change to the commercial and residential make up of the area. As such it was alleged that the council had failed to discharge the relevant duty under the RRA to have due regard to promote the equality of opportunity and good relations between persons of different racial groups.

At first instance the court had found that the local authority had done at least as much as it had in substance to do to comply with its duties and had done so in a pragmatic fashion. Although the council had not explicitly articulated its reasoning, it did have reference to the need to discharge the relevant obligations. The court therefore refused permission for judicial review. On appeal the decision was overturned.

The council argued that its decision sought to regenerate the area and accordingly was of overall benefit to the community, including the specific ethnic minorities concerned. Therefore it argued that if the overall effect of the decision was considered, it could be concluded that it had discharged its duties. It referenced the case of Baker v Secretary of State for Communities and Local Government [2008] LGR 239 to say that the court could take a general view of a generally beneficial policy and not have to consider each component of the duty item by item to see if there had been compliance.

Baker provides that the relevant duty was not to achieve a result, but to have due regard to the need to achieve the goals. It also found that there was no requirement to have explicit reference to s.71 in the decision-making process as this would otherwise be to sacrifice substance to form. It is interesting to note that the appellant acknowledged that if a decision maker applied some other policy, including planning policy, the application of which meant that s71 obligations were met, then that could indirectly discharge the obligation placed upon the council. Therefore the question was whether in substance due regard had been given?

Whilst the court noted that the policy was admirable (there had been a consultation exercise, a full report to the committee and a three-hour hearing with a full record) it held that the council had failed to discharge its duty in not specifically addressing the requirements of s71(1)(b). It therefore disapplied the findings in Baker.

The Court of Appeal had reference to other case law which meant that to have ‘due regard’ meant to have a conscious approach and state of mind. On the facts the court was satisfied that the material before the council showed sufficient potential impact on equality of opportunity to require that the impact of the decision be considered. It was not so remote as to be ignored. Whilst the concerns raised about equality were put in representations they were not put in the context of the specific statutory criteria. There had been no reference to s71 in the report to the committee or in the deliberations of the committee. Noting that there was no need for the actual promotion of equality, and that the considerations raised by s71 would not always be decisive, the court found there should have been an analysis of the material before the committee with the specific statutory considerations in mind and that there should be evidence that the considerations formed in substance an integral part of the decision making process. Therefore with some regret the court allowed the appeal.

This decision therefore highlights the fine line between showing compliance in substance and having to have specific reference to s71. The decision should also be seen in the light of Boyejo and others v Barnet London Borough Council [2010] EWHC 3261 (Admin) heard jointly with Smith v Portsmouth City Council. The question there was whether due regard had been given to the Disability Discrimination Act Section 49 (a) to take account of the disabilities of disabled groups when making a decision to replace resident wardens or staff for sheltered housing schemes with non-residential support. The court held that the bodies had not.

In making its decision the court referred to R(Chavda) v London Borough of Harrow [2007] EWHC 3064 (Admin) in which it was found that the legal duty to be complied with, and the implications of this, had to be drawn to the attention of the decision maker. That is to say that one should not simply draw to the decision maker’s attention that there were equality issues but should also draw to their attention that there is a legal obligation to discharge the relevant duty under the legislation. Otherwise a busy councillor may not have any idea of the serious duties imposed on the council.

The court found that the officers who had prepared the consultation and impact assessments had had due regard themselves to the duties. However, whilst acknowledging that there being no specific mention of the duties would not be determinative of the matter, on the facts, it was found that there had been a failure to bring the duty adequately to the attention of decision makers. Simple reference to rights of equality, or a general awareness of the duties, is not enough. In order to comply with the substantial, rigorous and open-minded approach which the court requires, the decision makers had to consciously apply themselves.

Whilst the relevant bodies had questioned and consulted the residents concerned, including those with disabilities, that was part of an approach to residents as a whole. Whilst there was a reference to disabilities in the documentation it was not possible to discern from this that due regard was had, for example, to the need to take account of those persons’ disabilities. There were differing approaches between Barnet and Portsmouth but the ultimate finding was that the failings in each case were sufficiently serious for the decisions to be quashed and for the matter to be reconsidered.

The above decisions demonstrate that decision makers need to be able to demonstrate that they have adopted a vigorous and open-minded approach to the discharge of their duties. To be compared with these decisions is the case of Domb and others v Hammersmith and Fulham London Borough [2009] EWCA 941 (Civ). Here, the Court of Appeal held that the council had not failed to have due regard to its duties under the RRA (and the Disability Discrimination Act 1995 and Sex Discrimination Act 1975) in its decision to introduce charges for its non-residential home care services.

That decision had to be seen against a backdrop where the council had already taken a decision to decrease council tax rates. Faced with this decision it therefore had to consider how best to deal with the provision of charges for non-residential home care services. The options before it were that they re-introduce charges or change the eligibility limit. It chose the former. The appellants argued that the council should not have considered these stark choices alone, which would clearly have had a negative impact, and that a report premised on the inevitability of a specific outcome could not mean that due regard to the duties had been given.

At first instance the court found that whilst some aspects of the decision were to be criticised, on the whole it could not be said that no due regard had been given to the general equality duties referred to above. On appeal Lord Justice Rix, summarising various authorities found that, as well as the points referred to above, discharging the duty did not exclude paying regard to countervailing factors, but is “the regard that is appropriate in all the circumstances”.

Accordingly the budgetary constraints could be taken into account and the council did not have to take the view that all theoretical options had to be regarded as being open to it. To do so would be impossible. The budgetary decision had been made. It was not open to challenge and was water under the bridge. In the circumstances it was held that the council had had due regard to the need to eliminate discrimination and promote equality. It added however that whilst in this case the council was not expected to do more, in other situations a decision maker may have to consider other options to discharge the duty (and avoid a decision which here would plainly have a negative impact on existing users).

In summary it can be seen that whether a local authority has discharged its duty or not can be a difficult matter to determine. The factors set out in Baker are important and need to be taken into consideration. Whilst it is clear that there does not have to be specific reference to the discharge of the duty, and there should not be a sacrifice of substance to form, the decision maker should ensure that they have appropriately addressed the issues and can demonstrate this.

If a consultation has been undertaken which addresses the issues, care should be taken not only to bring those issues to the attention of decision makers, but to do so making them aware of the legal duties they have to discharge. Such an approach will assist in avoiding challenges to the decisions taken. It will help to demonstrate that a rigorous and open-minded approach has been taken. In Harris and Boyejo the court considered that there was sufficient reference to equality issues to show that greater consideration had to be given to the issues. In Domb the court held that certain countervailing factors may mean that the decision maker is entitled to limit itself to certain choices but of course that decision is fact specific. It remains to be seen how the Equality Act 2010 which is now partially in force, and which will bring together 40 years of legislation, will impact on these decisions.

Tom Collins is an associate at Weightmans LLP. He can be contacted on 0151 242 6939 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..