Boyejo & Ors, R (on the application of) v Barnet London Borough Council

A public authority subject to the disability equality duty must have due regard to the statutory needs with substance, rigour and an open mind. The duty is not satisfied by general awareness, consultation with residents as a whole, or references to disability which do not address disabled persons as a distinct group. There is no statutory obligation to conduct a formal equality impact assessment, but an authority must consider whether one is appropriate and must assess likely differential or adverse impacts rationally. A Disability Equality Scheme may create a legitimate expectation of effective involvement of disabled persons, although not necessarily through a particular panel or mechanism. Where an authority undertakes consultation, it must occur while proposals remain formative, provide sufficient information and allow adequate time for an intelligent response.

Residents of sheltered accommodation challenged decisions by Barnet London Borough Council and Portsmouth City Council to replace resident warden or sleep-in services with peripatetic or mobile support services. The challenges concerned compliance with the statutory disability equality duty under the Disability Discrimination Act 1995, the authorities’ Disability Equality Schemes, the statutory Code of Practice and consultation obligations.

Barnet had conducted an extensive consultation exercise and prepared an equality impact assessment before deciding to remodel its services. Portsmouth had consulted residents shortly before deciding to introduce a mobile night service, and had concluded that a full equality impact assessment was unnecessary. The central issues were whether the authorities had had due regard to disabled persons’ disabilities, whether consultation and involvement were adequate, and whether the impact assessments were lawful.

1. The decisions of both Barnet and Portsmouth were quashed. The matters had to be reconsidered. The court did not express a view on the outcome of the reconsidered decisions.

2. Section 49A(1) of the Disability Discrimination Act 1995 imposed a mandatory duty to have due regard to the specified needs. It did not impose a duty to achieve particular results. The duty had to be exercised in substance, with rigour and with an open mind. It was not enough that officers or decision-makers possessed general awareness of the duty, or that the papers contained references to disability or equality.

3. A failure to mention section 49A(1) was not determinative, although express reference was good practice. The relevant decision-makers had to be adequately informed of the statutory duties, including the need to take account of disabled persons’ disabilities even where that might involve more favourable treatment. Neither authority had sufficiently considered disabled residents as a distinct group. Each therefore failed to comply with the statutory duty, particularly section 49A(1)(d).

4. There was no statutory duty to carry out a formal disability equality impact assessment. The authority had to consider whether such an assessment was appropriate and had to assess possible differential or adverse impacts rationally. Portsmouth’s conclusion that the service change could have no adverse impact was unreasonable. Barnet’s answer failed to address whether the change could have a different impact and was also unreasonable.

5. The Disability Equality Schemes created a legitimate expectation that disabled residents would be involved effectively in decisions affecting them, but not necessarily through the particular panels or groups mentioned in the Schemes. Barnet’s consultation was substantial and amounted to effective involvement. Portsmouth’s process was inadequate: its letter presented a planned change rather than formative proposals, failed to address foreseeable concerns, and allowed insufficient time for residents, particularly those with disabilities, to obtain assistance and respond meaningfully.

6. Once an authority chose to consult, it had to consult at a formative stage, provide sufficient reasons for intelligent consideration and response, and allow adequate time, applying R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213. The statutory Code did not impose higher positive duties, but failure to follow relevant guidance without cogent reasons could support a finding of breach.

First-instance judicial review proceedings concerning decisions by Barnet London Borough Council and Portsmouth City Council. No prior appellate decision was stated in the judgment.