Domb & Ors, R (on the application of) v London Borough of Hammersmith and Fulham

A manifesto promise does not create a legally enforceable legitimate expectation merely because a newly elected administration records that the manifesto was noted and adopted. The legal effect of the resolution depends on its nature and context. Under executive arrangements, responsibility remains with the executive unless the constitution or statutory regulations clearly reserve the decision to the full council.

Compliance with statutory equality duties is assessed by considering the substance and totality of the exercise, including consultation, equality impact assessment and the report to the decision-maker. The claim was dismissed.

The claimants sought judicial review of the London Borough of Hammersmith and Fulham’s decision to introduce charges for non-residential home care services. They argued that the decision departed from a legitimate expectation arising from the Council’s election manifesto and was ultra vires because the manifesto formed part of the policy framework reserved to the full council.

They also alleged failures to comply with disability, race and gender equality duties. The issues were whether the manifesto resolution created a legally significant expectation, whether the Cabinet had power to introduce charging, and whether the Council had paid due regard to its statutory equality duties.

1. Legitimate expectation. The words “noted and adopted” in the minutes of the inaugural council meeting did not give the manifesto the legal character contended for. The resolution did not describe it as adopted policy or as the overall framework for council policy, no vote was taken, and the surrounding circumstances did not support treating it as a binding council decision. The Cabinet members were aware that the decision departed from the manifesto and took that matter into account.
2. Vires. Article 4 of the Council’s Constitution exhaustively defined the policy framework by reference to the specified plans and strategies required by law to be approved by the full council. The manifesto was not such a plan or strategy and therefore fell within the executive’s functions under Article 7. The statutory scheme produced the same result. There had been no determination reserving the decision to the full council under Regulation 5 and Schedule 4.
3. Equality duties. The relevant question was whether the Council had paid due regard to both the negative duty to eliminate unlawful discrimination and the positive duty to promote equality of opportunity. The court considered the consultation, predictive equality impact assessment and Cabinet report as a whole. The exercise was one of substance, not form, and the documents should not be construed as if they were statutes.
4. The Council should have completed the assessment before the Cabinet meeting and, although there was no absolute duty to place it before Cabinet, it then had to include its key aspects in the Cabinet report. Those defects were capable of criticism but did not invalidate the decision. The Council had complied in substance with its disability, race and gender equality duties.
5. The judicial review claim was dismissed. There was no order as to costs. Permission to appeal was refused, with the time for applying to the Court of Appeal extended to 28 days.

This was a first-instance judicial review. The judge refused permission to appeal, extended the time for applying to the Court of Appeal to 28 days, and ordered expedition of the transcript.