JG & Anor v Lancashire County Council

The statutory duty to have due regard to disability equality requires a public authority to consider the relevant needs in a manner appropriate to the circumstances. It does not require a particular substantive outcome or a formal equality impact assessment. A public authority may lawfully set a preliminary budget framework before finalising specific policies, provided it retains flexibility and gives due regard when those policies are developed. The authority may consider financial pressures and mitigation measures, and the weight given to competing factors is principally for it. The court’s role is not to review the merits or adequacy of the policy under a general reasonableness challenge where the issue is compliance with the statutory duty.

Two disabled women sought judicial review of Lancashire County Council’s adult social care decisions. They challenged the Council’s approval of its three-year revenue budget and the later adoption of policies raising the Fair Access to Care Services eligibility threshold from moderate to substantial needs and changing charges for non-residential care.

The claim alleged breaches of section 49 A of the Disability Discrimination Act 1995. The central issues were whether the Council had to complete a detailed impact assessment when setting the overall budget, and whether its consultation, equality assessments, consideration of adverse effects and proposed mitigation demonstrated due regard when the specific policies were adopted.

1. The application for judicial review was dismissed. The Council complied with its duty under section 49 A of the Disability Discrimination Act 1995.
2. The duty was a duty to have due regard to the need to promote equality of opportunity for disabled people and to take account of disability-related needs. It was not a duty to achieve a particular substantive result. Due regard meant regard appropriate in all the circumstances. The Council could take account of countervailing factors, including the need to make substantial financial savings, and the weight given to those factors was for the Council unless its assessment was irrational: R (Baker) v Secretary of State for Communities and Local Government [2008] EWCA Civ 141; R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin).
3. There was no general statutory requirement to prepare a formal equality impact assessment, although such an assessment could assist in demonstrating compliance. It was lawful to approve a preliminary budget framework while leaving the precise policies and savings open for further consultation and assessment. The Council had not predetermined the challenged policies and retained flexibility as to how adverse effects would be minimised. The reasoning in R (Fawcett Society) v Chancellor of the Exchequer [2010] EWHC 3522 (Admin) supported that approach.
4. When the specific policies were adopted, the Council had undertaken detailed consultations and equality impact assessments. It had identified affected groups, including disabled people, assessed probable adverse effects, and considered mitigation such as reassessment, signposting, telecare, reablement, financial assessments and transitional protection.
5. The question was whether the Council had directed its mind to the relevant statutory matters, not whether the mitigation was objectively adequate or whether the policies were wise. The claim was not a general Wednesbury challenge. The Council’s consideration of possible mitigation demonstrated that it had had due regard.