R (Hajrula) v London Councils

The claimant sought judicial review of London Councils' decision to terminate funding to the Roma Support Group from 30 June 2011 following a review and consultation about the future role and scope of the Boroughs Grants Scheme. The court applied the established principles on lawful consultation (the Gunning criteria) and the public sector equality duties under the Race Relations Act 1976 (section 71), the Disability Discrimination Act 1995 (section 49A) and the Sex Discrimination Act 1975 (section 76A).

The judge found the consultation process to be broadly lawful and compliant with the Gunning requirements, but identified a material flaw: London Councils treated decisions by reference to broad service "heads" rather than by reference to individual providers or the particular equality streams they served, and did not sufficiently give substantive "due regard" to equality duties in that respect. As a result the Leader's Committee decisions of 14 December 2010 were vitiated insofar as they recategorised services and terminated funding without proper regard to the public service equality duties.

Relief granted included a declaration that the defendant breached its equality duties, quashing of the decisions terminating funding (subject to providers who consent to the decision), an order to carry out a proper equality impact assessment considering providers by protected characteristic or individually, and a direction that funding should not be cut off earlier than three months after any lawful decision reinstating or terminating funding.

This is a first instance judicial review of London Councils' decision to recategorise and withdraw grant funding from organisations funded under its Boroughs Grants Scheme, specifically affecting the Roma Support Group (RSG). The dispute arose after London Councils carried out a review and consultation in 2009-2010 driven by government devolution and anticipated public-sector spending cuts. Respondents were asked to comment on whether 69 existing service "heads" should be regarded as London-wide (A), sub-regional (B) or local (C) and whether funding should be repatriated to boroughs.

Nature of application: the claimants sought judicial review challenging (i) the lawfulness of the consultation and (ii) failure to give adequate regard to public service equality duties, arguing the process and the outcome improperly disadvantaged protected groups (notably Roma children).

Procedural posture: permission for judicial review was granted in January 2011 and the substantive hearing took place on 28 January 2011.

Issues framed by the court:

• Whether the consultation complied with the Gunning principles (timing, adequate reasons and information, sufficient time for response, and conscientious consideration of responses).
• Whether London Councils complied with the public service equality duties (Race Relations Act 1976 section 71, Disability Discrimination Act 1995 section 49A, Sex Discrimination Act 1975 section 76A) in having "due regard" to the need to eliminate unlawful discrimination and to promote equality of opportunity.

Court’s reasoning: the judge accepted that the consultation generally set out purpose, options and invited equality-related input and that summaries and analyses were available to decision-makers; consequently much of the consultation complied with Gunning. However, a legal and practical defect existed: decision-making proceeded by reference to high-level service heads rather than assessing the impact of recategorisation on particular providers or on specific protected groups. That approach risked concealing or diluting significant equality impacts and meant the defendant did not give the substantive "due regard" required by the equality duties. The court therefore concluded that the impugned decisions were unlawful in that respect. The court recognised the financial context and that boroughs might have to decide on commissioning, but nonetheless required London Councils to undertake a proper equality impact assessment and refrain from cutting funding for at least three months after a lawful decision. The court left some consequential questions (notably precise budgetary consequences and scope of quashing) open for further submissions.

First instance: the claim succeeded in part. The court held that while the consultation process generally complied with the Gunning principles, London Councils breached its public service equality duties by treating decisions at the level of broad service heads rather than assessing impacts on individual providers or by protected characteristic. The Leaders Committee decisions insofar as they terminated funding were quashed (except where providers consent) and London Councils was ordered to carry out a proper equality impact assessment and not to end funding earlier than three months after any lawful decision.