Barrett, R (on the application of) v London Borough of Lambeth

The claimant challenged Lambeth’s cessation of funding to People First Lambeth (PFL) and subsequent decisions about replacement services on the basis that the council failed to have due regard to the disability equality duty in s49A of the Disability Discrimination Act 1995 (as then in force) and later s149 of the Equality Act 2010, and that consultation was inadequate. The court analysed the sequence of decisions and equality impact assessment (EIA) processes and concluded that the budget decision which produced the £125,000 cut (effectively ending most PFL funding) was unlawful for lack of due regard to the disability equality duty because the council decision-makers themselves had not had regard to the EIA. However that unlawful budget decision had been effectively set aside by 21 April 2011 and a later decision of 31 August 2011 (to commission a sessional user involvement worker and take other measures) was supported by an adequate EIA and lawful consultation. The claim was therefore dismissed: the earlier error did not attract effective relief because it had been overtaken by lawful decisions.

Background and parties: The claimant, a person with mild to moderate learning disabilities and a PFL service-user and director, brought judicial review proceedings in her personal capacity challenging Lambeth’s decision-making about the cessation of funding to People First Lambeth (PFL), a small user-led organisation run by people with learning disabilities (PWLD). PFL received the majority of its income from Lambeth and provided user-involvement, self-advocacy and management support for PWLD.

Relief sought: The claimant sought restoration of funding (or effective redress) on grounds that Lambeth breached its equality duties and failed to consult properly when it decided not to renew PFL’s funding and when it later decided how to re-provide services.

Key factual and procedural posture: Lambeth announced non-renewal of PFL contracts by letter of 18 January 2011; the full Council approved a budget including the relevant savings on 23 February 2011; officers produced EIAs in February and thereafter; litigation permission was granted on 28 July 2011; Lambeth reconsidered and by 31 August 2011 proposed commissioning a sessional user involvement worker (UIW) and other measures to support PWLD, supported by a revised EIA which was finalised in September 2011.

Issues framed:

• Whether the January/February decision to cease funding PFL (and the budgetary decision) complied with the disability equality duty (s49A DDA / s149 Equality Act 2010) and proper consultation obligations;
• Whether the later 31 August 2011 decision (to commission a UIW and other measures) complied with the equality duty and consultation requirements;
• Whether the claim was an abuse of process because the claimant was a PFL director.

Court’s reasoning and conclusions: The court mapped the sequence of decisions and found that the full Council’s budget decision of 23 February 2011 had the effect of determining the level and type of services to be provided to PWLD and therefore engaged the equality duty. The court held that councillors could not be taken to have had due regard merely because officers had prepared an EIA: the decision-maker itself must have had due regard. Accordingly the budget decision was unlawful for lack of due regard. The court accepted, however, that Lambeth subsequently set that decision aside (by the letter of 21 April 2011) and undertook a further process of consultation and revision. The 31 August 2011 decision, supported by the August/September EIA and consultation, addressed the equality issues sufficiently and the court concluded there was adequate information, adequate consultation on the issues within the council’s chosen scope, and adequate consideration of responses. The claimant’s abuse of process argument failed. Because the unlawful budget decision had been overtaken and Lambeth’s later decision was lawful, the court declined to grant relief and dismissed the claim.

The claim is dismissed. The court held that the council’s budget decision that produced the £125,000 cut was unlawful for lack of due regard to the disability equality duty because the decision-makers themselves had not had the EIA before them; however that decision had been set aside by 21 April 2011 and the subsequent 31 August 2011 decision (supported by an adequate EIA and consultation) remedied the equality duty defects, so no relief was appropriate.