Brown, R (on the application of) v Secretary of State for Work and Pensions

The duty to have due regard under Disability Discrimination Act 1995 section 49A(1) is a mandatory duty of proper consideration, not a duty to achieve the listed disability-equality outcomes. Its content depends on the public function and relevant countervailing factors.

A public authority must address the duty consciously, in substance and before making the relevant decision. It must obtain sufficient information, keep the duty under review, and act with rigour and an open mind. A formal disability equality impact assessment is not invariably required. It is one possible means of informing the assessment.

The duty remains with a public authority when implementation is entrusted to another body. It must ensure that the body is able and willing to discharge the relevant equality responsibilities, and must supervise its performance.

The claimant, a disabled resident of Hastings, sought judicial review arising from the Government's Post Office Network Change Programme and the proposed closure of her local Post Office. She challenged the removal of Royal Mail Group from the public authorities subject to specific disability-equality duties, the May 2007 national closure-policy decision, and the subsequent implementation of that programme.

The claim alleged breaches of the general disability-equality duty in section 49A(1) of the Disability Discrimination Act 1995, the Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 2005, departmental disability-equality schemes, guidance and the statutory Code of Practice. Claims against Royal Mail Group and Post Office Ltd were withdrawn after alternative provision was made in Old Town and after evidence of the local process was served.

The central issues were the scope of the due-regard duty, the validity of Regulation 3(b), and whether either Secretary of State had breached that duty.

1. Claim dismissed. The Secretary of State for Work and Pensions had power under section 49D(1) of the Disability Discrimination Act 1995, read with section 14 of the Interpretation Act 1978, to revoke a designation in the 2005 Regulations. Regulation 3(b) of the 2007 Regulations was lawfully made. “Royal Mail Group” in the Schedule meant the identifiable legal entity Royal Mail Group plc, later RMGL, not an indeterminate corporate group.

2. Section 49A(1) imposed a mandatory duty to have proper regard to the identified needs when carrying out public functions. It did not require achievement of the statutory objectives. The weight given to economic and practical considerations was for the authority unless its assessment was unreasonable or irrational. Section 49A(1)(d) required proper regard to the need to obtain and consider information about disabled persons’ disabilities. It did not itself require particular steps or results.

3. The duty had to be addressed before and when the relevant policy was made, in substance, with rigour and an open mind. It was continuing and non-delegable. Where implementation was entrusted to another body, the responsible authority had to ensure that body was capable and willing to discharge the equality responsibility, and had to supervise it adequately.

4. The 2005 Regulations, departmental disability-equality schemes, toolkit and Code did not create a free-standing legal duty to conduct a formal disability equality impact assessment. Such an assessment could be an appropriate way of gathering information. The Code had to be considered, and a departure from relevant guidance required cogent reasons, but it did not impose additional statutory duties.

5. The evidence showed that both Secretaries of State had in substance given due regard to disability equality. The national policy had been informed by substantial material concerning disabled and other vulnerable users. It included access criteria, local consideration of terrain, transport and demographics, involvement of Postwatch, and monitoring of implementation by Post Office Ltd. A formal assessment would not have added materially to the national decision, while local implementation properly addressed the individual effects of closures.

6. The court added that, had unlawful conduct been established, delay and the near-completion of the programme would have been highly material to discretionary relief. No issue of relief arose because the substantive claims failed.

not stated in the judgment.