Tiller, R (On the Application Of) v East Sussex County Council

The duty of due regard under section 49A of the Disability Discrimination Act 1995 is substantive and context-sensitive. A public authority must consider the statutory equality goals alongside proper countervailing factors, including economic and practical considerations. The weight given to those factors is for the authority, subject to review for irrationality or unreasonableness. The duty does not require a particular outcome, nor does it require a formal equality assessment or express reference to the Act. The court examines the substance of the decision-making process, including assessment of disabled persons’ needs, consultation, mitigation of adverse effects and the information available to the decision-maker.

The claimant, an elderly disabled resident of St David’s Court, challenged East Sussex County Council’s decision to replace a 24-hour on-site warden service with weekday managerial cover and remote emergency telecare. He alleged that the Council had failed to comply with its due regard duty under section 49A of the Disability Discrimination Act 1995. The Council relied on extensive consultation, individual assessments, alternative accommodation for residents with greater needs, financial considerations and mitigation measures. It was common ground that no formal disability equality impact assessment was legally required, and the later assessment did not form part of the decision-making process.

1. Claim dismissed. The Council’s decision was lawful.
2. Following Brown v Secretary of State for Work & Pensions [2008] EWHC 3158 (Admin), due regard required proper regard to each of the goals in section 49A(1), assessed in the context of the function being exercised, together with relevant countervailing factors. Economic and practical factors could be important. Their weight was for the public authority unless its assessment was unreasonable or irrational.
3. The duty concerning taking account of disabled persons’ disabilities, including potentially treating them more favourably, required due regard to the need to take those steps. It did not impose a duty to take the steps themselves or to achieve a particular result.
4. Specific reference to the Disability Discrimination Act 1995 was neither essential nor sufficient. The question was whether the substance of the process demonstrated compliance. The Council had comprehensively assessed needs, acted on those assessments, considered residents’ concerns, transferred more vulnerable residents where requested, and provided mitigation through telecare, training and possible additional care packages.
5. The decision-maker had sufficient information. The report did not ignore the adverse impact of removing overnight provision; it described that impact sufficiently for the decision-maker to weigh it against the case for reallocating resources. The court was not entitled to substitute its view that the former service was better for the Council’s lawful judgment that it was no longer needed.

No appellate decision is stated. The judgment records that permission to proceed was initially refused by Blake J, renewed permission was granted by Collins J on 15 March 2011, and the judicial review claim was then heard in the Administrative Court.