R (D and another) v Manchester City Council

The claimants, two elderly disabled adults acting by litigation friends, challenged Manchester City Council's budget-setting decision and its consultation on adult social care savings. The core legal issues were whether the Council had had "due regard" to the disability equality duty in s49A DDA 1995 (applicable at the time of the budget decision) and later the public sector equality duty in s149 Equality Act 2010, and whether the consultation was fair and provided sufficient information to enable an intelligent response. The court held that the budget strategy, which included contingency reserves, a commitment to carry out equality impact assessment and procedural protections to ensure eligible needs would be met, was a lawful way to build flexibility into a budget and amounted to having due regard in the circumstances. The post-budget consultation and the revised information provided were found to be adequate and not unfair.

Background and parties: The claimants, two elderly disabled persons ("D" and "S"), challenged Manchester City Council's 9 March 2011 budget decision which contained proposals to reduce adult social care spending, and a subsequent consultation on a "Revised Social Care Offer". The claim was brought by way of judicial review. The budget sought substantial savings driven by the Government spending review; adult social care formed a significant part of the Council's expenditure.

Relief sought: Quashing of the Council's budget calculations and relief in respect of the consultation process. The claimants alleged unlawful failure to have due regard to the disability equality duty (s49A DDA 1995) in setting the budget and unfairness and insufficiency of information in the consultation; permission to rely on s149 Equality Act 2010 was refused by a judge prior to this hearing.

Issues framed:

• Whether the Council failed to have "due regard" to the disability equality duty when setting its budget (s49A DDA 1995 applicable at the time);
• Whether the subsequent consultation on the redefined social care offer was unfair because it lacked sufficient information for consultees to respond intelligently; and
• Whether any failure of process would justify quashing the budget given public interest, delay and practical consequences.

Facts and procedural posture: The Council set its budget on 9 March 2011; a public consultation on adult social care ran from 9 May to 8 August 2011 and was later revised. An equality impact assessment (EIA) was produced in September 2011 and the Executive adopted a redefined social care offer in September 2011. The claimants relied on contemporaneous evidence concerning the absence of pre-decision EIAs and the limited detail in early consultation materials.

Court's reasoning: The court reviewed the concept of "due regard" (drawing on authorities dealing with the disability equality duty and the public sector equality duty) and emphasised that the duty requires such regard as is "appropriate in all the circumstances", leaving judgment on the weight to be given to the authority. The court accepted that budget-setting may lawfully include contingency and reserve planning coupled with later individual decision-making and consultation. In the facts, Members had been informed of equality duties in the February reports, the budget was framed by pre-budget consultation and principles aimed at protecting the vulnerable, contingency reserves were available, and subsequent consultation and an EIA were carried out prior to implementation. The consultation materials were materially amended to be clearer, and arrangements for engagement were extensive. The court found that the Council had taken substantive steps amounting to having due regard and that the consultation was not so deficient as to be unfair.

Other considerations: The court also considered delay and public interest: quashing a budget calculation would, by statute, nullify the council tax and impose significant practical costs and disruption. The claim was filed nearly three months after the budget decision and the court concluded that, even if there had been a legal defect, quashing would be disproportionate and contrary to the public interest.

The claim is dismissed. The court held that the Council’s budget strategy and subsequent consultation amounted to having due regard to the disability equality duty in all the circumstances: Members were informed of equality duties, contingency and mitigation measures were in place, and the post-budget consultation and EIA addressed impacts. The consultation provided sufficient information to allow an intelligent response. Even if there had been a breach, quashing the budget would have been disproportionate and contrary to the public interest given delay and practical consequences.