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

Public authorities must give due regard to statutory equality duties before and when making a decision that may adversely affect disadvantaged groups. The duty requires a conscious, rigorous and open-minded assessment based on adequate information. An equality impact assessment is a tool, not a substitute for the statutory duty, and no formal assessment is invariably required. The authority must consider mitigation and alternative means of achieving its objectives. Once the duty has been properly performed, the weight given to countervailing economic and practical factors is for the authority, subject to review for irrationality. Financial pressures do not excuse non-compliance. A policy guidance manual may create a legitimate expectation of consultation, particularly where consultation is necessary to obtain information about likely equality impacts.

The claimants, users of three legal entitlement advice services funded by Birmingham City Council, challenged the Cabinet’s decision to terminate funding before new commissioning arrangements became operative. They alleged failure to consult, breach of the public sector equality duties concerning race and disability, and irrationality.

The Council made a fresh decision during the proceedings after recognising that its equality impact needs assessment should have been considered. The central issues were whether either decision complied with the statutory equality duties and whether relief should be granted despite the Council’s financial pressures and the fresh decision.

1. The claim succeeded. Both the November 2010 decision and the March 2011 reaffirmation were unlawful because the Council had failed to comply with the public sector equality duties.
2. The November decision was defective because there was no evidence that all decision-makers knew of the duties or understood how they were engaged. The March decision was also defective. Although the Cabinet had been directed to the equality impact needs assessment, that assessment was materially inadequate and the Cabinet treated it as an end in itself rather than as one source of information relevant to the statutory duties.
3. The duties required due regard to be given in substance, with rigour and an open mind. The Council needed better evidence about the impact of the funding gap on vulnerable users, including evidence from service providers and users. It also needed to consider mitigation, including continuation of existing services where no reasonable equivalent was available pending recommissioning.
4. The user survey relied upon by the Council was information gathering of limited relevance to the impact of terminating funding. It was not adequate consultation. The Council’s own guidance stated that consultation was a key part of an impact assessment. That guidance, together with other communications, created a legitimate expectation of consultation.
5. Economic and practical factors could properly be considered, but only after the equality duties had been discharged. The weight of those factors was for the Council, subject to irrationality review. Financial constraints did not excuse the breach.
6. The court granted declarations that the decisions were unlawful. It declined to quash the decision as regards all 13 providers, but ordered that funding for the three relevant organisations continue at current levels until the phase-one recommissioning decision for the relevant services became fully operative or a fresh lawful termination decision was made. The Council was ordered to pay the claimants’ costs. Permission to appeal was refused.