R. (Brown) v Secretary of State for Work and Pensions

The Divisional Court considered the scope and effect of the statutory duty in section 49A(1) of the Disability Discrimination Act 1995 (as amended) that public authorities in carrying out their functions must have "due regard" to specified needs relating to disabled people, and the relationship of that duty to the 2005 Regulations imposing specific duties (including publication of a Disability Equality Scheme), the DRC/EHRC Code of Practice and departmental guidance. The court held that the statutory duty requires decision‑makers to have proper regard to the needs identified but does not create an automatic, freestanding obligation to carry out a formal disability equality impact assessment (DEIA) in every case; whether a DEIA is required depends on the circumstances and the information available.

The court held that the Secretary of State for Work and Pensions had power under section 49D (with the Interpretation Act 1978 implication) to amend the 2005 Regulations and validly removed "Royal Mail Group" from the Schedule; that removal was not for an improper purpose, nor irrational, and was not in breach of section 49A(1) or the Code. The court further held that the Secretary of State for Business, Enterprise and Regulatory Reform did not breach his section 49A(1) duties in the formulation of the May 2007 Post Office Network decision or in supervising implementation: he had regard to relevant evidence, concluded reasonably that a national DEIA would not have been meaningful and put in place a framework (including local consultations and Postwatch involvement) to address local impacts on vulnerable and disabled users.

Background and relief sought. Mrs Judy Brown challenged aspects of the government’s 2007 Post Office reform programme. The amended claim sought declarations that: (1) Regulation 3(b) of the 2007 amendment regulations removing "Royal Mail Group" from the list in the 2005 Regulations was ultra vires or unlawful; (2) the May 2007 decision "The Post Office Network: government response to public consultation" was unlawful for failure to have due regard under section 49A(1) of the Disability Discrimination Act 1995; and (3) the Secretary of State for Business, Enterprise and Regulatory Reform continued to be in breach of section 49A(1) in the implementation of the Network Change Programme because no DEIA or equivalent had been carried out.

Issues framed by the court. The court structured the claim in four topics: (A) validity of Regulation 3(b) of the 2007 Regulations (power, purpose, rationality and compliance with section 49A(1)); (B) lawfulness of the May 2007 decision (whether the SSBERR had due regard, whether a DEIA was required, and whether the DES, the departmental "toolkit" or the Code had been disregarded); (C) the SSBERR’s responsibilities and conduct in relation to implementation of the Network Change Programme (including delegation to Post Office Limited and supervision of that implementation); and (D) relief and discretion (including delay and the public interest in refusing relief).

Court’s reasoning and findings.

• The court analysed the statutory duty in section 49A(1): it is a duty to have "due regard" to listed needs, not an absolute duty to achieve results. Paragraph (d) requires regard to the need to take steps to take account of disabled persons’ disabilities, including where more favourable treatment may be appropriate.
• The court concluded that section 49D, read with the Interpretation Act 1978, gave the Secretary of State power to amend or revoke the 2005 Regulations and thus to make Regulation 3(b). The term "Royal Mail Group" in the Regulations was properly read as referring to the company (Royal Mail Group plc / RMGL) rather than an amorphous group of corporate entities.
• On the evidence the department had considered the potential impact on disabled people, the regulatory/licence context and the role of the regulator Postcomm and Postwatch; ministers’ decision to de‑list was not for an improper purpose, was not irrational and did not breach section 49A(1) or the Code.
• The court rejected the submission that section 49A(1) or the 2005 Regulations imposed an automatic obligation to undertake a national DEIA before the May 2007 policy decision. The department had considered whether a national DEIA would be meaningful and reasonably concluded it would not; instead it adopted a national framework and local processes (funding agreement, local consultations, Postwatch involvement, access criteria and monitoring) to protect vulnerable users. That approach satisfied the "due regard" duty in the circumstances.
• Where implementation was delegated to Post Office Limited, the Secretary of State retained a non‑delegable duty to ensure POL was capable of and willing to have due regard and to supervise implementation; the court found POL had in substance acted compatibly with due‑regard duties and that the department supervised implementation.
• The court also noted significant delay in bringing the claim and the practical reality that implementation was well advanced; even if some error were found, discretionary relief would have been inappropriate given detriment to good administration and lack of practical benefit.

Conclusion. The court dismissed the claimant’s challenges in all respects.

The claim is dismissed. The court held that (a) the Secretary of State for Work and Pensions had power under section 49D (read with the Interpretation Act 1978) to make Regulation 3(b) of the 2007 Regulations, that the revocation was not for an improper purpose, not irrational and did not breach section 49A(1) or related duties; and (b) the Secretary of State for Business, Enterprise and Regulatory Reform did not breach his section 49A(1) duties in formulating the May 2007 decision nor in supervising implementation of the Network Change Programme, the department having taken reasonable steps and put in place local processes and supervision to protect vulnerable and disabled users.