Tappin v The Government of the United States of America

A public authority’s equality duty requires due regard to specified equality needs, but does not require a particular substantive result. The authority may decide the weight to give those needs and relevant countervailing factors, subject to rationality. A budget framework may lawfully be approved before the detailed equality impact of individual policies is assessed, provided the authority retains flexibility and conducts the necessary assessment before adopting those policies. Formal equality impact assessments are not mandatory, although they may demonstrate compliance. Consideration of mitigation measures is relevant to whether due regard has been shown.

The judgment concerned a judicial review challenge to decisions attributed to a local authority concerning adult social care. The claimants alleged failures to comply with the disability equality duty in approving a multi-year budget, raising the eligibility threshold for social care, and changing charges for non-residential services.

The court considered whether the budget decision was premature because the detailed impact on disabled service users had not then been assessed, and whether the later equality impact assessments and mitigation measures were inadequate.

1. Outcome. The application for judicial review was dismissed. The Council had complied with its duty under section 49A of the Disability Discrimination Act 1995.
2. The duty was procedural and required due regard to the statutory needs. It did not require the authority to achieve a particular substantive result. Due regard meant regard appropriate in all the circumstances. The authority could consider proper countervailing factors, including financial pressures, and the weight given to those matters was for the authority unless its assessment was irrational or unreasonable.
3. The approval of the overall budget was a preliminary decision. It did not finally determine the detailed policies or the precise savings attributable to them. The Council remained open to different ways of implementing the budget and to mitigating effects on disabled people. It was therefore lawful to formulate the budget framework before completing detailed assessments of individual policies.
4. The Council had undertaken detailed consultations, equality impact assessments and internal briefing concerning both the raised eligibility threshold and the charging policy. It had identified affected groups and probable adverse effects. It had also considered reassessment, signposting, telecare, reablement, financial assessments and transitional protection. Whether those measures were ultimately adequate was a matter for the Council, provided that it had directed its mind to mitigation.
5. The challenge was not a general Wednesbury challenge to the merits of the budget or policies. The issue was whether the statutory factors had received due regard. They had.
6. The court criticised the late filing of substantial additional evidence, including an expert report filed without permission under CPR 35.4. It indicated that costs relating to that material should be disallowed or borne by the claimants.