R (Rajput and Shamji) v London Borough of Waltham Forest

The Court of Appeal considered challenges focused on the public authorities' duty under section 49A(1) of the Disability Discrimination Act 1995 to have "due regard" to specified needs when carrying out functions, in particular the provision in paragraph (d) to take account of disabled persons' disabilities even where that may require treating them more favourably. The court applied the guidance in Brown and related authorities on the meaning and practical operation of the "due regard" duty: it is a duty of substance, to be exercised with rigour and an open mind, but is not a duty to achieve particular results and must be judged in the context of relevant countervailing considerations, including resources.

On the facts the court held that, in the appeal by Mr Tiller, the county councillor decision-maker had sufficient awareness of the relevant factual background and of the authority's DDA obligations and that the report before him, together with evidence of the consultation and assessments, provided the material necessary for him to discharge the section 49A(1) duty in substance. Accordingly that appeal was dismissed. In the appeal by Rajput and Shamji the court accepted that an arguable point was raised about the sufficiency of material before the decision-maker, but dismissed the permission appeal on grounds of delay, lack of response to the respondent's enquiries and the consequent practical futility of any remedy given the subsequent change of use and refurbishment of the centre.

Background and parties

• This judgment resolves two consolidated appeals. The first appeal concerned a claim by a tenant of sheltered housing, Mr Tiller, challenging East Sussex County Council's decision of 12 October 2009 to replace a 24/7 on-site warden service at St David's Court with daytime on-site management plus telecare and individually purchased home care. The second appeal was a challenge by disabled users, Rajput and Shamji, to the London Borough of Waltham Forest's decision of 9 March 2010 to close the Crownfield Road day centre and transfer services to an alternative centre.

Nature of the claims and procedural posture

• Both claims were judicial review challenges alleging failure to discharge the public equality duty under section 49A(1) DDA, concentrating on paragraph (d) (the need to take account of disabilities and where appropriate treat disabled persons more favourably).
• The applications came to the Court of Appeal on appeals from the Administrative Court: the Rajput appeal sought permission to apply for judicial review after Calvert-Smith J refused permission; the Tiller appeal followed the dismissal of his claim by Thirlwall J. The Court of Appeal heard the two appeals together.

Issues framed

• Whether the decision-makers had "due regard" under section 49A(1) DDA to the relevant needs, in particular (d), including whether the decision-maker was provided with sufficient material to enable the required balancing of impacts on disabled people against countervailing factors (notably resource considerations).
• In Rajput whether any remedy would remain effective given subsequent events and whether delay and failure to respond to the respondent's enquiries made the appeal academic.

Court's reasoning and subsidiary findings

• The court endorsed and applied the analytical framework in Brown: the duty requires a conscious, substantive approach and the gathering of relevant information, but it is not a duty to achieve results; countervailing factors, including economics, are permissible considerations. It is non-delegable and should be recorded where practicable, but absence of a specific textual reference to section 49A does not in every case prove failure to have "due regard".
• In Tiller the Project Group had conducted extensive consultation, individual assessments were offered and many vulnerable tenants moved to an extra-care scheme. The report to the cabinet member recorded the likely effects and proposed mitigations. The decision-maker (the cabinet member) gave evidence of his awareness of the factual background and of the equality obligations. The court held that, on the particular facts where the proposed change and its adverse effects were obvious from the report and the decision-maker's role and knowledge, the section 49A(1) duty had been discharged in substance.
• In Rajput the court accepted that the appellants raised an arguable point about the adequacy of material before the decision-maker, but emphasised the discretionary nature of judicial review remedies. After the judge had discharged the respondent's undertaking, the borough proceeded to change the use of the centre and spent substantial sums on refurbishment and re-letting. The appellants delayed in pursuing the appeal, did not seek a stay and failed to respond to the borough's requests about remedy. The court concluded that, given that delay and the practical consequences, permission should be refused.

Wider context: the court noted that it is good practice for decision-makers to record explicit consideration of section 49A(1), but emphasised that substance, context and the obviousness of the impact in particular factual settings may make detailed formal references unnecessary.

Both appeals were dismissed. In Tiller the court held that East Sussex County Council had discharged its section 49A(1) DDA duties in substance: the Project Group's consultation, individual assessments, the report to the cabinet member and the cabinet member's awareness supplied the material and awareness necessary for the required "due regard", and the decision to substitute telecare and targeted services for a 24/7 on-site team was a balancing of legitimate countervailing considerations. In Rajput & Shamji the court accepted an arguable point on the merits but refused permission because the appellants had delayed, taken no steps to preserve remedies, failed to engage with the respondent about remedy after the centre's change of use and refurbishment, and any practical relief had become effectively futile.

Two appeals to the Court of Appeal from decisions in the Administrative Court: (i) Tiller appealed the Administrative Court order of Thirlwall J dismissing his claim for judicial review (the matter involved earlier interlocutory orders, including an interim injunction granted by Sir Thayne Forbes and later discharged by Blake J; Collins J granted renewed permission on the single ground before the Administrative Court). (ii) Rajput & Shamji appealed from Calvert-Smith J's order of 21 January 2011 refusing permission to apply for judicial review ([2011] EWHC 640 (Admin)). The Court of Appeal heard both appeals together and gave judgment on 20 December 2011 ([2011] EWCA Civ 1577).