Hajrula, R (On the Application Of) v London Councils

Public authorities must assess equality impacts with due regard before deciding to withdraw or restructure services affecting protected groups. The duty concerns the substance of the decision-making process, not merely the existence of a formal equality impact assessment or the eventual outcome. It is non-delegable. Where large numbers of vulnerable people are affected, the degree of regard required is correspondingly high. Financial considerations may outweigh equality considerations, but only after the statutory criteria have been properly and sufficiently considered. A consultation may otherwise satisfy the usual requirements, yet be vitiated where the authority structures its assessment solely by service heads and fails to examine the impact on individual providers or protected groups.

The claimants were users of services provided by the Roma Support Group, which received funding under the London Boroughs Grant Scheme. London Councils reviewed the scheme because of proposed devolution to individual boroughs and financial pressures. It consulted on classifying services as London-wide, sub-regional or local, and decided that the Roma Support Group’s funding would end on 30 June 2011.

The claim challenged the consultation and alleged that London Councils had failed to comply with its public service equality duties under the Race Relations Act 1976, the Sex Discrimination Act 1975 and the Disability Discrimination Act 1995.

1. Consultation. Applying the principles in R v Brent London Borough Council ex parte Gunning [1985] 84 LGR 168, and related authorities, the consultation was sufficiently clear and timely in most respects. Consultees understood the proposed categorisation and its likely consequences.
2. Equality duties. The statutory duties required London Councils to have due regard to the relevant equality objectives before deciding how to restructure or terminate funding. Due regard is a substantive obligation. It is not satisfied by a formal document or by showing that some regard was paid. The decision-maker must act with an open mind, with sufficient vigour, and must itself perform the duty.
3. The authority’s fundamental error was to assess services by the 69 service heads, rather than considering individual providers or classes of provision by reference to protected characteristics. The service heads had not been designed around race, sex or disability, and included services directed at protected groups alongside services directed at the community generally. The defect began at the categorisation stage and was never cured.
4. Financial considerations could properly be taken into account and could ultimately outweigh equality considerations. The fact that boroughs might later decide whether to fund repatriated services did not relieve London Councils of its own duty to assess the likely effects of its decision.
5. The claim succeeded to that limited extent. The court declared that London Councils had breached its public service equality duties and quashed the decisions terminating funding from 30 June 2011, except where a provider had consented. London Councils was required to conduct a proper equality impact assessment, considering individual provision or protected-group categories, or another fair mechanism, and not to terminate funding before three months after the new decision. The defendant was provisionally ordered to pay 60 per cent of the claimants’ costs.

First-instance judicial review. Permission was granted by Lindblom J on 13 January 2011. The Administrative Court granted declaratory and quashing relief.