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

The disability equality duty requires public authorities to give informed and timely consideration to the statutory needs. It requires consideration rather than the achievement of particular results. A formal disability equality impact assessment is not invariably required. Authorities must consider the information available and whether further assessment is appropriate. Due regard must be conscious, rigorous and integrated into decision-making. The duty continues throughout implementation and remains with the authority when practical work is entrusted to another body. Appropriate appointment and supervision are then required. Relevant statutory guidance must be considered, with cogent reasons for departure, but cannot enlarge statutory duties. Economic and practical considerations remain relevant. A power to impose specific equality duties includes a power to revoke them, subject to the original statutory conditions and purpose.

Judy Brown, a disabled resident of Old Town, Hastings, regularly used her local Post Office, including for banking services for herself and her elderly mother. She sought judicial review of decisions connected with a national programme of Post Office closures. She challenged the Secretary of State for Work and Pensions’ regulation removing Royal Mail Group from the authorities subject to specific disability equality duties. She also challenged the Secretary of State for Business, Enterprise and Regulatory Reform’s national closure policy and subsequent oversight of its implementation.

Royal Mail Group Limited, a postal services operator, and Post Office Limited, the network operator implementing the closure programme, participated as interested parties. Brown withdrew her claims against both companies after evidence was served and a replacement outlet was announced locally. The Equality and Human Rights Commission intervened. The central issues were the validity of the removal regulation and whether the ministers had discharged their disability equality duties without formal disability equality impact assessments.

1. The claim for judicial review was dismissed. Both judges contributed to the court’s judgment. The removal regulation was lawfully made, and the ministers had discharged the duties relevant to the national policy and its implementation (paras 163, 193, 205–206).
2. The duty under section 49A(1) of the Disability Discrimination Act 1995 was mandatory, but required due regard to the statutory needs rather than their achievement. Due regard meant regard appropriate to the authority’s functions and circumstances. Relevant economic and practical considerations could be weighed alongside disability equality. Their weight was for the authority, subject to review for unreasonableness or irrationality (paras 80–85).
3. Neither the general duty nor the 2005 regulations invariably required a formal disability equality impact assessment. Authorities had to consider their information needs and whether such an assessment was appropriate. The departmental schemes and non-statutory toolkits did not enlarge the statutory duty. The regulations allowed three years for implementing specified scheme arrangements, subject to the qualification concerning unreasonable or impracticable performance (paras 89, 97–110).
4. Decision-makers had to understand the duty and address it consciously before and when considering policy. Compliance required substance, rigour and an open mind. The duty continued and could not be delegated. An authority entrusting implementation to another body had to ensure its capability and willingness, and maintain proper supervision. Express statutory references and adequate records were good practice; their absence created evidential difficulties but did not establish breach (paras 90–96, 175, 189, 199).
5. The statutory Code had to be considered, and departures required clear, convincing and cogent reasons. Unjustified disregard or misapplication could strongly indicate breach of the general duty. The Code created no additional duties, and failure to observe it did not itself establish liability. Whether these judicial review proceedings fell within section 53A(8A) was left open and assumed for the analysis (paras 111–121).
6. Section 49D(1), read with section 14 of the Interpretation Act 1978, authorised revocation subject to the original conditions, including the purpose of ensuring better performance of the general duty. Royal Mail Group identified Royal Mail Group plc, rather than its subsidiaries collectively. Removal was neither improperly motivated nor irrational. The assessment addressed disability impacts and existing regulatory protection. The companies’ precise public-authority status was not determined (paras 122–162).
7. The closure policy was supported by substantial information, consultation, access criteria and safeguards for local implementation. A separate national assessment would not have added useful information. Post Office Limited’s substantive compatibility with the due regard duty was accepted, and ministerial supervision disclosed no breach (paras 170–205).
8. Obiter: permission despite delay did not prevent delay being considered again at the relief stage. Declarations concerning a substantially implemented programme could be refused for detriment to good administration and lack of practical utility. A finding that a minister lacked power would ordinarily be declared (paras 207–213).

Davis J granted permission for the judicial review to proceed notwithstanding delay. Before the substantive hearing, the claimant withdrew all allegations against Royal Mail Group Limited and Post Office Limited. They remained interested parties. The Divisional Court rejected the surviving substantive claims against the two Secretaries of State.