Rajput & Anor, R (On the Application Of) v East Sussex County Council

A public authority’s statutory due regard duty requires a conscious, substantive and informed evaluation of relevant disability-equality needs before and when a decision is made. It is a duty to have regard, not a duty to achieve specified results. The degree of regard depends on all the circumstances and may include proper and reasonable economic or practical countervailing factors. The actual decision-maker must receive the relevant information; the duty is non-delegable. Express reference to the statutory provision is good practice but is not conclusive. Where the adverse impact on disabled service users is obvious and the decision-maker understands the relevant concerns, alternatives and costs, a concise report may suffice. Judicial review remains discretionary, and unexplained delay causing prejudice to good administration may justify refusal of permission even where the claim is arguable.

Two appeals were heard together because they raised similar issues under section 49 A(1) of the Disability Discrimination Act 1995. In Tiller, the appellant challenged East Sussex County Council’s decision to replace a 24-hour warden service at sheltered accommodation with a reduced on-site service, telecare and individual care packages. Thirlwall J dismissed the judicial review claim.

In Rajput and Shamji, disabled users challenged Waltham Forest’s decision to close the Crownfield Road day centre and provide an alternative facility. Calvert-Smith J refused permission to apply for judicial review in [2011] EWHC 640 (Admin). The central questions were whether the public authorities had discharged their due-regard duties and, in the second appeal, whether delay and subsequent changes to the site made permission inappropriate.

Both appeals were dismissed. Rimer LJ gave the leading judgment, with Jackson LJ and Carnwath LJ agreeing. The Tiller appeal failed on its merits. In the Rajput and Shamji appeal, the court accepted that the alleged failure to comply with section 49 A(1) raised an arguable point, but refused permission because the proceedings had become practically prejudicial through delay.

1. The court accepted the guidance in Brown v Secretary of State for Work and Pensions [2009] PTSR 1506. The duty under section 49 A(1) of the Disability Discrimination Act 1995 is mandatory, but requires due regard rather than achievement of a particular result. The degree of regard is appropriate to all the circumstances and may include economic and practical countervailing considerations.
2. The duty must be discharged before and when the decision is made, through a conscious, substantive, rigorous and open-minded approach. It is non-delegable. Information known to officers is insufficient unless the actual decision-maker has the material necessary to consider the statutory needs. Express reference to section 49 A is good practice, but the question is one of substance rather than form. The court applied the observations in McDonald v Kensington and Chelsea Royal London Borough Council [2011] PTSR 1266.
3. In Tiller, the decision-maker knew that the affected residents were elderly and disabled, understood the statutory duties, was aware of the concerns expressed, and had before him the proposed alternative support and the cost-saving rationale. The adverse effects of replacing an on-site service were obvious. Although the report and reasons could have been fuller, the court held that the section 49 A(1)(d) duty had been discharged. Harris v Haringey London Borough Council [2011] PTSR 931 was materially different on its facts and did not require a different result.
4. Judicial review is discretionary. Under section 31(6) of the Senior Courts Act 1981, the court could consider lack of urgency, unexplained delay and detriment to good administration. The Crownfield site had been converted into a resource hub and substantial expenditure had been incurred. The appellants’ failure to explain the purpose of continuing the proceedings prevented the Borough from addressing any remaining unmet needs. That justified refusal of permission.

• Court of Appeal (Civil Division): appeals dismissed. The Tiller judicial review dismissal was upheld. The appeal by Rajput and Shamji was dismissed and permission to apply for judicial review was refused.
• Administrative Court: Thirlwall J dismissed Tiller’s judicial review claim concerning the reduction of support at St David’s. Calvert-Smith J refused Rajput and Shamji permission to apply for judicial review in [2011] EWHC 640 (Admin).