Chavda & Ors, R (on the application of) v London Borough of Harrow

A local authority may set adult social-care eligibility criteria by reference to available resources, provided it acts consistently with national guidance and does not unlawfully fetter later individual assessment. Consultation must occur while proposals remain formative and the responses must be conscientiously considered. Convention-rights issues generally arise when an actual interference is alleged, rather than merely because a policy has been adopted. However, a public authority subject to the disability equality duty must ensure that decision-makers understand the specific statutory duties owed to disabled people. An oblique reference to a possible conflict with disability discrimination law, or a general equality impact assessment, is insufficient where the decision directly affects disabled service users.

Three residents receiving community-care services challenged Harrow’s decision of 25 July 2007 to restrict adult-care services to people assessed as having critical needs, excluding those whose needs were substantial or lower. The challenge alleged unlawful consultation, failure to take Convention rights into account, breach of the disability equality duty under section 49A of the Disability Discrimination Act 1995, unlawful fettering of discretion, and irrationality or disproportionality.

The Council relied on financial pressures, national Fair Access to Care Services guidance and its consultation and equality-impact processes. The central questions were whether the consultation was lawful, whether the policy decision was premature or unlawful on human-rights grounds, and whether the statutory disability equality duty had been properly addressed.

1. Consultation. The consultation principles in R v North and East Devon HA ex parte Coughlan [2001 QB 213] were satisfied. The proposal remained open until the Cabinet decision, the consultation was extensive, and the evidence showed that the decision-makers had considered the responses. The omission of a Primary Care Trust letter was a valid criticism, but did not render the overall process unlawful.
2. Convention rights. The claim based on Articles 3 and 8 of the European Convention on Human Rights was premature. Following R (SB) v Governors of Denbigh High School [2006] UKHL 15 and Belfast City Council v Miss Behavin’ Limited [2007] UKHL 10, the relevant question is whether there has been an actual violation, not merely whether the authority properly considered the possibility of one. No individual implementation decision or resulting interference had yet occurred.
3. Disability equality duty. Section 49A of the Disability Discrimination Act 1995 required due regard to the statutory considerations, including equality of opportunity and taking account of disability even where that involved more favourable treatment. The Council had undertaken an equality impact assessment and consulted relevant groups, but the specific legal duties and their implications were not drawn sufficiently to the Cabinet’s attention. A general reference to a potential conflict with disability discrimination law was inadequate. The decision was therefore unlawful on this ground.
4. Fettering and resources. Restricting eligibility within the FACS framework did not unlawfully fetter discretion. Individual assessment and statutory complaints mechanisms remained available. The allocation of scarce public resources was principally for elected councillors, and the evidence did not establish irrationality or disproportionality.
5. The claim succeeded on the disability equality ground. The other grounds failed. Questions of remedy were reserved for further consideration.

First-instance judicial review proceedings. No appellate history was stated in the judgment.