R (Greenwich Community Law Centre) v London Borough of Greenwich

The Court of Appeal dismissed the challenge to Greenwich London Borough Council's decision-making on the ground that the Council had complied, in substance, with its public sector equality duty under section 149 of the Equality Act 2010. The court emphasised that the duty requires decision-makers to have "due regard" to the need to eliminate discrimination, advance equality of opportunity and foster good relations, but that this is a substantive and context-sensitive obligation rather than a purely formal or "tick-box" requirement. The March 2011 equality impact assessment (EIA) taken together with the design of the tendering process and contractual outreach requirements sufficed to show that the Council had paid due regard to relevant protected characteristics when it re‑commissioned legal advice services on a modular basis. The change to a modular delivery model was held not to be a significant policy change requiring a fresh EIA and the appellant failed to identify a particular protected characteristic that had been ignored.

The appellant, Greenwich Community Law Centre (Greenwich CLC), sought judicial review of Greenwich London Borough Council's re‑commissioning and tendering decisions for legal advice services following budget reductions. Greenwich CLC, previously a member of the GLAS consortium and a major recipient of Council funding, challenged the award of the employment and immigration module (awarded to Plumstead CLC) and contended that the Council had breached its public sector equality duty under section 149 of the Equality Act 2010 by not properly assessing the equality implications of changing from multiple providers each offering all services to a modular approach with a single provider per module.

The case came to the Court of Appeal on appeal from Cranston J in the Administrative Court (CO/10969/2011), who had dismissed the judicial review. The central issue was whether the Council had given "due regard" to the needs of persons with protected characteristics when taking its final decisions, and whether the shift to a modular commissioning model required a fresh equality impact assessment or other further consideration by the Cabinet.

The court framed the issues as: (i) whether the March 2011 EIA and the subsequent commissioning process gave the Council sufficient grounding to have due regard to equality obligations; (ii) whether the change to a modular provider model was a material change requiring further formal assessment; and (iii) whether the Cabinet itself had the material before it to enable compliance with section 149.

The Court of Appeal analysed established authorities on the nature of "due regard" and stressed that the duty is substantive and integrated into decision-making but does not necessarily require a formal EIA at every stage. It held that the Council's priority groups effectively addressed those protected characteristics likely to be affected, that the tendering specification and scoring expressly addressed equalities, location and outreach, and that specific accessibility concerns were dealt with as part of the commissioning and contractual requirements. The appellant's failure to identify a specific equality consideration that had been overlooked was treated as significant. For these reasons the appeal was dismissed.

Appeal dismissed. The Court of Appeal held that the Council had complied in substance with its public sector equality duty under section 149 of the Equality Act 2010. The March 2011 EIA, the specification and scoring criteria in the tendering process, and the outreach and accessibility requirements meant that the performance of the duty was integral to the outcome; the change to a modular delivery model was not a significant policy change requiring a fresh EIA and the appellant failed to identify any particular protected characteristic that had been ignored.

Appeal from the Administrative Court (Mr Justice Cranston), CO/10969/2011, in which the claimant's application for judicial review was dismissed; appeal heard in the Court of Appeal and dismissed ([2012] EWCA Civ 496).