Kaur & Shah, R (on the application of) v London Borough of Ealing & Anor

A public authority must assess the likely racial impact of a proposed policy at a formative stage, before adopting its criteria. An assessment cannot be treated as a later condition or used merely to justify a decision already made. The assessment must be substantive, rigorous and informed by consultation, with identified adverse effects addressed before the policy is fixed. Monitoring after adoption does not cure the failure to assess and address those effects in advance. The duty to promote equality and cohesion may require specialist services for a racial or ethnic group. Section 35 of the Race Relations Act 1976 is not an exception to the Act. It recognises that treating unlike cases differently may be necessary to eliminate indirect discrimination and promote equality.

The claimants challenged Ealing’s decision to replace its sponsorship of Southall Black Sisters with a borough-wide commissioning arrangement for domestic-violence services. The proposed criteria required a single provider, or a consortium with a lead provider, to offer services to all residents irrespective of race. The claimants alleged breaches of the Race Relations Act 1976, Ealing’s own equality-impact-assessment policy, and the principles governing cohesion and specialist provision.

Ealing conceded during the hearing that its decision should be quashed and agreed to continue funding Southall Black Sisters pending a fresh decision. The court nevertheless gave judgment on the statutory and procedural principles governing the new decision.

1. Disposition. Ealing’s decision was quashed by agreement. The order of Mr Justice Forbes dated 24 April 2008 was set aside. Ealing was ordered to pay the claimants’ costs and £5,000 towards the Equality and Human Rights Commission’s costs.
2. Advance equality assessment. The duty under section 71 of the Race Relations Act 1976, the statutory code and the Race Relations Act 1976 (Statutory Duties Order) 2001 required Ealing to assess the likely impact of its proposed funding policy before adopting the criteria. The assessment had to form part of policy formulation. A policy could not lawfully be adopted subject to a later assessment. The assessment had to be recorded, undertaken as a matter of substance and with rigour, and supported by consultation with affected groups (paras [20]–[27], [36]–[44]).
3. Failure to address adverse impact. Ealing had identified a possible adverse impact on black and minority ethnic women but fixed its single-provider criteria while postponing assessment of the impact until future monitoring. That was unlawful. Once a risk of adverse impact had been identified, Ealing had to consider measures to avoid or reduce it before settling on the policy (paras [39]–[44]).
4. Statistics and indirect discrimination. Ealing’s comparison of the numbers of domestic-violence victims by ethnic group was irrational because it failed to compare those figures with the relevant population proportions and did not sufficiently account for likely under-reporting. The material available could not rationally support the conclusion that domestic violence had no correlation with ethnicity (paras [45]–[47]).
5. Specialist services and cohesion. Specialist provision for an ethnic minority may promote, rather than undermine, equality and community cohesion. Section 35 of the Race Relations Act 1976 is not a derogation from the Act. It reflects the principle that unlike cases may require different treatment to meet special needs. There was no legal rule preventing a specialist organisation from providing services to a particular community or from having a name indicating its specialist purpose (paras [48]–[58]).

The judgment records an earlier order of Mr Justice Forbes dated 24 April 2008, which was set aside. No further appellate history is stated.