Barwick & Anor v Bridgend County Borough Council

Consultation is lawful where proposals remain genuinely provisional and consultees receive sufficient reasons, adequate time and a real opportunity to respond. The decision-maker must conscientiously consider the consultation responses.

A provisional decision in principle does not necessarily end the formative stage. Even if an earlier decision has gone too far, a public body may be able to restore fairness through a fresh, open-minded consultation and reconsideration.

The disability equality duty under the Disability Discrimination Act 1995 is substantive. Express reference to the statutory duty or completion of an equality impact assessment is not indispensable. The court examines whether, in substance, the decision-maker consciously and rigorously had due regard to the statutory factors.

The claimants, elderly and disabled residents of a council care home, sought judicial review of the Council’s decision to close the home and use its site for an Extra Care housing development.

They alleged inadequate consultation and failure to comply with section 49 A of the Disability Discrimination Act 1995. The Council contended that its October 2008 decision was provisional, that consultation continued until the final decision on 31 March 2009, and that the equality duty had been substantively performed.

The central issues were whether consultation occurred at a formative stage and whether the Council had due regard to the statutory equality duties.

1. Outcome. The applications for judicial review were dismissed.
2. Consultation. The court applied the principles stated in R. v. North and East Devon HA, Ex p Coughlan [2001] QB 213, namely that consultation must occur while proposals remain formative, provide sufficient reasons for intelligent consideration and response, allow adequate time, and be conscientiously considered.
3. The Cabinet’s resolutions in October 2008 were properly understood as provisional or preferred-option decisions. The continuing involvement of the Scrutiny Committee, further consultation with residents, relatives, representative groups and the wider community, and the stated intention to make a final decision supported the conclusion that the formative stage continued until 31 March 2009.
4. The court treated R. (Sardar) v Watford BC [2006] EWHC 1590 (Admin) as important but fact-specific. Even if the Council had moved beyond the formative stage, that decision did not prevent it from correcting the position by undertaking a full and fair consultation followed by genuine reconsideration. The process was rigorous, fair and conducted with an open mind.
5. Disability equality duty. Section 49 A required due regard to the listed statutory needs. Following R (on the application of Meany, Glynn and Sanders) [2009] EWHC 559 (Admin), R (Baker) v Secretary of State for Communities and Local Government [2008] EWCA (Civ) 141 and R(Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), the issue was substance rather than formula. There was no absolute duty to produce an equality impact assessment, although one had been prepared here.
6. The Council had substantively considered the effects on elderly and disabled residents. It obtained individual impact assessments, used social workers and an independent advocate, consulted relatives and representative groups, considered dementia-related needs, and placed the consultation material and equality impact assessment before the decision-makers. The absence of express references to section 49 A in some reports and minutes did not establish unlawfulness.
7. The Council therefore conducted fair consultation and had due and practical regard to the statutory equality factors. Its alternative arguments on withholding relief did not need to be determined.

not stated in the judgment.