W, R (on the application of) v Birmingham City Council

A public authority deciding a policy likely to affect disabled people must give conscious and properly informed regard to the statutory equality considerations. General awareness of the duty, or reliance on broad aspirations, is insufficient. The authority must assess the likely practical impact, consider mitigation and alternative courses, and ensure that the primary decision-makers address the right questions before deciding.

The duty applies throughout the decision-making process. Consultation must provide sufficient information and reasons to permit an intelligent response, and responses must be conscientiously considered. A failure to comply with the disability equality duty, or a materially inadequate consultation, renders the decision unlawful.

Two rolled-up judicial review claims challenged Birmingham City Council’s decisions to approve its Business Plan on 1 March 2011 and its Adult Social Care policy on 14 March 2011. The claimants were severely disabled Birmingham residents receiving, or needing, adult social care.

The Council proposed to move from funding assessed substantial and critical needs to funding critical needs only, alongside a Universal Resource Allocation System and wider preventative measures. The claimants alleged breach of the disability equality duty under section 49A of the Disability Discrimination Act 1995, failure to ask the right questions, inadequate consultation and breach of article 8 of the European Convention on Human Rights.

1. Claim succeeded. The decisions of 1 and 14 March 2011 concerning the New Offer for Adult Social Care were unlawful and could not stand.
2. Section 49A of the Disability Discrimination Act 1995 required more than general awareness of disability equality. The Council had to consider the practical impact of moving from substantial and critical eligibility to critical eligibility only, including the effect on disabled people whose needs fell just below the critical band.
3. The Council’s material did not refine the high-level concerns identified in November 2010. It did not adequately assess the likely severity of the impact, the availability of alternative community resources, or the effectiveness of proposed mitigation. Nor did it expressly require Cabinet to consider whether the severity of the impact made it necessary to identify and fund a less draconian alternative.
4. The duty was owed by the primary decision-makers and had to be addressed before and at the time of the decisions. Officers’ preparatory work and the Council’s general commitment to disabled people did not by themselves establish compliance. The court’s function was to review whether due regard had been paid, rather than to substitute its view on resource allocation.
5. The consultation was also unlawful. The initial wording suggested that only critical personal care needs would be funded, creating confusion about the treatment of social and emotional needs. The consultation also failed, until late in the process, to make clear that a substantial part of the proposed saving was attributable to reductions in third-party care fees. Consultees therefore lacked sufficient information to respond intelligently.
6. The separate failure to ask the right questions added nothing to the section 49A ground. The challenges concerning the Universal Resource Allocation System and Quickheart were subsidiary and were not determined separately. The human-rights arguments added nothing in substance.

The parties were asked to agree an appropriate consequential order.