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

A public authority performs its equality duties by giving the statutory objectives the regard appropriate in all the circumstances. The inquiry concerns substance, not form or box-ticking. The duty must be exercised with vigour and an open mind, but it requires due regard rather than a particular result.

When deciding whether to charge for existing services, an authority need not reopen every earlier, unchallenged budget decision or consider every theoretical means of balancing its budget. It must nevertheless consider seriously the adverse impact on protected groups and any realistic alternatives or mitigating measures. Consultation, an equality impact assessment and a sufficiently informative report may together demonstrate compliance, although no formal impact assessment or express statutory formula is invariably required.

The Council decided to charge for non-residential home care services rather than reduce eligibility for those services. The appellants, who were disabled service users, sought judicial review. They alleged that the Council had failed to have due regard to its disability, race and gender equality duties, particularly because it had not considered alternatives across the whole municipal budget.

Sir Michael Harrison granted permission but refused to quash the decision. He found that, despite some criticisms, the Council had complied in substance with its equality duties. The appellants appealed on the remaining grounds after their legitimate-expectation ground was not pursued.

The central issue was whether the consultation, predictive equality impact assessment and report to the cabinet enabled the Council to give due regard to the relevant equality objectives when deciding to introduce charging.

1. Appeal dismissed. Rix LJ held that the Council had, in substance and not merely in form, given due regard to the need to eliminate discrimination and promote equality of opportunity. Sedley LJ and Lord Clarke MR agreed that the appeal failed, although both expressed misgivings about the prior council-tax decision.

2. The duty concerns the substance of the decision-making process. It requires the regard appropriate in all the circumstances, exercised with vigour and an open mind. It does not require a specified result, a formal impact assessment or express reference to the statutory formula. Countervailing considerations may be taken into account, and the duty remains non-delegable.

3. The Council was not required on 16 June 2008 to treat every theoretical budgetary option as open. Earlier budget decisions, including the unchallenged decision to reduce council tax, were not before the court and could not be impugned in these proceedings. Requiring every decision to reopen the entire budgetary canvas would make decision-making impracticable. In another case, however, an authority might have to demonstrate that it had considered with appropriate vigour whether a decision plainly harming existing service users could be avoided.

4. The charging proposal was inherently adverse to affected disabled service users. The Council nevertheless considered that impact seriously. It undertook substantial consultation, commissioned a careful predictive equality impact assessment, considered mitigation and warned cabinet members that the proposal was extremely relevant to disabled people and required full consideration. Treating charging as preferable to withdrawing services from people with moderate needs was neither irrational nor perverse.

5. The assessment did not find that the scheme would have a disproportionately adverse impact on racial groups or women. The evidence supported the conclusion that those groups were not more likely to pay charges. The omission of specific race and gender discussion from the cabinet report therefore did not establish a material failure of due regard. The late complaint about carers was at most a make-weight and could not alter the overall conclusion.

6. Sedley LJ observed that whether a local authority may create a budgetary deficit by an elective fiscal decision and then rely on that deficit when modifying performance of statutory duties raised an important public-law question. That question was not before the court.

1. Court of Appeal (Civil Division): The court granted permission on the adjourned grounds and unanimously dismissed the appeal: [2009] EWCA Civ 941.

2. Administrative Court: Sir Michael Harrison granted permission for judicial review but refused to quash the Council’s decision. He held that the Council had complied in substance with its general equality duties.