R (W, M and others) v Birmingham City Council

This is a judicial review of Birmingham City Council decisions in March 2011 to adopt a Business Plan and an Adult Social Care policy that would restrict council-funded individual budgets to needs assessed as "critical" under the national Fair Access to Care Services framework. The principal legal issues were whether the Council had had "due regard" to the Disability Equality Duty in s 49A of the Disability Discrimination Act 1995 and whether consultation and impact assessment processes were adequate.

The court concluded that, although the Council had engaged in extensive high‑level planning and consultation about a transformation programme (including a universal Resource Allocation System and use of Quickheart software), the material placed before decision‑makers did not address the key equality questions required by s 49A in sufficient and focused detail. In particular the Council failed to analyse and present the practical effects of removing funding for needs assessed as "substantial" (as opposed to "critical") or to show how proposed mitigation measures would operate in practice. The consultation papers were also misleading or insufficiently clear in places. For these reasons the decisions impugned were unlawful.

This case concerns urgent judicial review challenges to Birmingham City Council decisions taken in March 2011 to adopt a Business Plan and an Adult Social Care policy which would prospectively limit council‑funded individual budgets to needs assessed as "critical" under the national eligibility framework.

• Background and parties: Four severely disabled adult residents of Birmingham (W; and M, G and H) brought two separate but substantively identical claims. Beatson J directed a rolled‑up hearing (permission and substantive hearing together). The claimants alleged unlawful decision‑making, breach of the Disability Equality Duty (Disability Discrimination Act 1995 s 49A), failures of consultation and procedural unfairness, and ECHR Article 8 concerns.
• Relief sought: urgent permission to apply for judicial review and a declaration that the Council's decisions adopting the Business Plan (1 March 2011) and the Adult Social Care policy (14 March 2011) were unlawful; consequential relief.
• Issues framed by the court: (1) whether the Council had had due regard to the disability equality duty in deciding to limit funded individual budgets to "critical" needs; (2) adequacy of equality impact assessment(s) and whether decision‑makers had been given proper material; (3) whether the consultation process met common law requirements; (4) alleged failure to ask the right questions in the Wednesbury/Tameside sense; (5) Article 8/ECHR (shortly addressed).

Court’s reasoning (concise): the court accepted that the Council faced acute financial pressure and that the transformation programme and proposals for a universal RAS and personalisation were legitimate matters of macro policy. Nonetheless, the Disability Equality Duty requires specific, conscious analysis of the likely discriminatory or disparate impact of a proposed policy and consideration of reasonable alternatives or mitigation before a final policy choice is made. Although the Council produced EINAs, consultation documents and background material, the court found that the material put before members did not contain sufficiently focused analysis of the practical consequences for those with "substantial" needs, nor any convincing assessment of the effectiveness of proposed mitigation such as prevention, enablement, signposting and third sector provision. The consultation documents also gave room for confusion (for example about whether only "personal care" needs or broader social needs were to be funded). Given those deficiencies, decision‑makers had not been supplied with the information necessary to pay "due regard" under s 49A. The court therefore quashed the challenged decisions as unlawful and inadequate consultation supported that conclusion.

The court invited the parties to agree consequential relief.

The claim for judicial review succeeds in relation to the Council decisions of 1 and 14 March 2011. The court held that the Council had failed to pay the "due regard" required by s 49A of the Disability Discrimination Act 1995 because decision‑makers were not provided with sufficiently focussed analysis of the impact of restricting funded individual budgets to "critical" needs (and of the efficacy of proposed mitigation). The consultation was also held to be inadequate in important respects. The claim is therefore allowed in respect of those decisions; the court invited the parties to agree appropriate consequential orders.