Bailey & Ors, R (on the application of) v London Borough of Brent Council & Ors

A public authority must have due regard to the public sector equality duty throughout its decision-making process. What due regard requires is fact-sensitive and turns on substance, not on the formal existence of an equality impact assessment.

Indirect discrimination may be established by comparative disadvantage. It does not require an inherent causal link between the protected characteristic and use of the service. The comparison must, however, use a logically suitable pool of persons interested in the relevant benefit or disadvantage.

A library authority must make a reasonable assessment of users’ needs under the Public Libraries & Museums Act 1964. It may meet those needs flexibly through mitigation and alternative service delivery.

Residents challenged Brent Council’s decision to close six of its twelve public libraries as part of a programme of savings and service transformation. They alleged breaches of the public sector equality duty, the statutory library duty, and procedural fairness in the assessment of community proposals to operate libraries.

Ouseley J refused their application to quash the decision: [2011] EWHC 2572 (Admin). The residents appealed. The central issues were whether the Council had adequately considered a risk of indirect discrimination against Asian residents, whether equality considerations had been addressed in time, and whether the needs assessment and consultation process were lawful.

1. Appeal dismissed unanimously. The Council’s decision to close the six libraries was not unlawful.

2. The closure decision was a provision, criterion or practice for section 19 of the Equality Act 2010. Indirect discrimination did not require proof of an inherent link between being Asian and using libraries. It could arise if the policy placed Asian persons at a particular comparative disadvantage. The proper comparator pool was library users, not the Borough’s whole population, because persons with no interest in the service could not logically be included. The available figures showed that Asian users were not proportionately more affected by the closures than non-Asian users.

3. The section 149 duty required a conscious analysis of relevant equality material and had to be kept in mind throughout the process. Its content was fact-sensitive. A formal equality impact assessment was neither invariably necessary nor invariably sufficient. Here, however, equality implications were identified from an early stage; the detailed assessment and April report informed the final decision; and the Council had not put the duty aside until the ultimate meeting. It was not required to conduct further racial analysis where no obvious risk of indirect discrimination emerged from the material.

4. Under section 7 of the Public Libraries & Museums Act 1964, the Council had made a reasonable assessment of users’ needs. The duty allowed flexibility in how needs were met. The reports, consultation, accessibility analysis and mitigation measures, including outreach and alternative services, were sufficient despite legitimate scope for debate about their effectiveness.

5. The consultation was not procedurally unfair. The requirements of a viable and robust community business proposal were sufficiently apparent. The Council gave detailed and cogent reasons for rejecting proposals, and no unlawful alteration of the assessment criteria was shown.

• Court of Appeal (Civil Division): dismissed the residents’ appeal in [2011] EWCA Civ 1586.
• Administrative Court: Ouseley J refused the application to quash Brent Council’s library-closure decision: [2011] EWHC 2572 (Admin).