Siwak, R (on the application of) v London Borough of Newham

The public sector equality duty requires substantive consideration of equality impacts before and during the formulation of a policy that may affect protected groups. It does not require a court to micro-manage an authority’s policy development. An authority need not undertake consultation before proposals are sufficiently defined to permit meaningful engagement. Where the challenged decision merely authorises officers to develop options and expressly leaves the final service model for later approval, it is premature to challenge the policy’s ultimate content or the absence of consultation on that content. The duty to consider relevant factors applies to the decision actually made, not to decisions that remain under development.

The claimant, a Roma woman who had previously received advice from a voluntary-sector organisation, challenged the London Borough of Newham’s decision of 17 November 2011 concerning the development of a three-tier information, advice and guidance model. She argued that the decision determined that future intensive advice would be provided in-house, created a hiatus in face-to-face advice, breached the public sector equality duty under section 149 of the Equality Act 2010, required consultation, and failed to take account of relevant considerations.

The Council maintained that the decision merely authorised further development of the model. The final scope, providers, eligibility criteria and implementation arrangements remained open and subject to further decision and consultation.

1. Claim dismissed. The decision of 17 November 2011 did not adopt a final service model. It authorised officers to develop a problem-solving, tier 3 advice service, brought housing advice within its potential scope, and required the proposal to return to the mayor in consultation with cabinet for approval. Other services could also be added later.
2. The duty under section 149 of the Equality Act 2010 required due regard to equality impacts as a matter of substance. The duty was continuing and had to be addressed before and during policy formulation. The court accepted the summary in R (on the application of Greenwich Community Law Centre) v Greenwich London Borough Council [2012] EWCA 496, including that the duty was not a tick-box exercise and that courts should not micro-manage public authorities.
3. The evidence showed that equality impacts were being considered through successive drafts of an equality impact assessment. The assessment considered both in-house and voluntary-sector provision and their possible effects on protected groups. Since no final model had been selected, the challenge based on the equality duty was premature.
4. There was no duty to consult before the 17 November decision. The proposals remained undefined and uncosted, so consultation would have been conjectural, wasteful and potentially misleading. The consultation principles referred to in R (on the application of Hurley and Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) did not require consultation at that stage.
5. The authorities relied on by the claimant were distinguishable. R (Kaur) v London Borough of Ealing [2008] EWHC 2062 (Admin), R (Hajrula) v London Councils [2011] EWHC 448 (Admin) and R (on the application of Rahman) v Birmingham City Council [2011] EWHC 944 (Admin) concerned materially different decisions, including settled provider or funding decisions. No relevant-factor challenge arose because Newham had not chosen between in-house and external provision.
6. The subsequent decision of 15 March 2012 made clear that independent organisations remained possible providers and that the scope, providers and eligibility criteria would be subject to formal consultation. In any event, it cured any defect and rendered the proceedings pointless.