Williams & Anor, R (on the application of) v Surrey County Council

The Public Sector Equality Duty requires a public authority to give due regard to the statutory equality needs before and when making a substantive policy decision. The court determines whether the threshold of due regard has been met. Once it has, the weight given to equality considerations and countervailing factors is for the authority, subject to ordinary public law review.

Due regard is fact-sensitive and requires a conscious, rigorous and open-minded consideration. It is not satisfied by repeating general assurances or by treating an earlier preliminary assessment as sufficient for a later substantive decision. Where consultation has developed the understanding of an equality issue, the decision-maker must receive a sufficiently informative account of that development.

The claimants sought judicial review of Surrey County Council’s decision on 27 September 2011 that library provision in ten areas should be delivered through community partnered libraries. The challenge was based exclusively on alleged non-compliance with section 149 of the Equality Act 2010.

The Council had previously decided to consult on the feasibility of the community partnership model. The consultation included community groups and equality advisory bodies. The central issue was whether, when making the later substantive decision to proceed, the cabinet had given due regard to the equality implications, particularly the training needs of volunteers who would staff the libraries.

1. Applicable approach. The claimants succeeded. The court held that the Council’s decision was unlawful because the cabinet had failed to comply with section 149 of the Equality Act 2010.
2. The court adopted a two-stage approach. First, it determined whether the authority had in fact crossed the statutory threshold of due regard. That was not a Wednesbury exercise. Secondly, once the threshold was crossed, the weight given to equality considerations and countervailing factors would be reviewed on Wednesbury principles.
3. Due regard is a continuing, fact-sensitive obligation. It must be discharged before and at the time of the relevant decision, with substance, rigour and an open mind. A formal equality impact assessment is not invariably required, but the authority must gather and present information sufficient to enable the decision-maker to confront the relevant equality implications.
4. The February decision was preliminary and concerned consultation about feasibility. The September decision was substantive and concerned proceeding with the community partnership model. The fact that consultation had produced no wholly new equality issue did not make the February consideration sufficient for September.
5. The obvious equality issue was the initial and continuing training required by volunteers, particularly in relation to equality matters. By September, discussions with community groups had developed the Council’s understanding of the nature and extent of the training needs and how they might be met. The cabinet report contained only general assertions that training would be provided and monitored. It did not explain the training needs identified or the officers’ proposed means of meeting them.
6. That omission meant the cabinet had failed to consider a relevant matter. At the least, it required a concise but rigorous account of the anticipated training needs and the arrangements for meeting and maintaining them. The court therefore declared the September decision unlawful. Relief was reserved for further argument.

This was a first-instance judicial review in the Administrative Court. The judgment does not state any prior appellate decision in the same litigation.