R (Bracking) v Secretary of State for Work and Pensions

The Court of Appeal allowed the appeal and quashed the Secretary of State’s decision to close the Independent Living Fund from 31 March 2015 on the ground that the public sector equality duty (PSED) imposed by section 149 of the Equality Act 2010 had not been properly discharged. The court summarised the applicable principles of lawful consultation (Coughlan/Gunning) and the PSED: the duty is non‑delegable, must be exercised with rigour and an open mind, and requires the decision‑maker personally to have due regard to advancing equality of opportunity for persons with protected characteristics. The court held that, although the consultation itself was adequate for the most part, the material placed before the Minister did not give a sufficiently clear and focused appreciation of the likely severe adverse impact on many ILF users’ ability to live independently. That absence of evidence that the Minister personally had given due regard to the specific statutory considerations rendered the decision unlawful.

Background and parties. The Independent Living Fund (ILF) provided support to enable disabled persons to live independently. The Secretary of State for Work and Pensions decided to close the ILF from 31 March 2015 and to devolve funding to local authorities; the appellants were current ILF users seeking judicial review of that decision. The Equality and Human Rights Commission intervened in support of the appellants.

Nature of the claim and relief sought. The claim sought quashing of the Minister’s decision on grounds that the respondent failed to comply with (i) the public sector equality duty under section 149 of the Equality Act 2010, (ii) duties in the consultation process, and (iii) proceeded on an unlawful assumption that White Paper proposals and a draft Social Care Bill would become law.

Procedural posture. The appeal was from the Administrative Court (Blake J) where the claim was dismissed ([2013] EWHC 897 (Admin)); permission to appeal was granted and the Court of Appeal heard the matter.

Issues framed. The court identified the principal issues as: adequacy of the consultation (timing, information and reasons), whether the Minister lawfully discharged the PSED (including the adequacy of Equality Impact Assessment material and whether the Minister had due regard personally), and whether reliance on prospective White Paper measures rendered the decision unlawful.

Court’s reasoning and findings.

• Consultation: applying the principles in R v North and East Devon Health Authority, ex p. Coughlan and Gunning, the court held that the consultation document and process were, in substance, adequate. The omission of an internal estimate of closure costs and the fact that officials considered postponement did not make the consultation unlawful. The reasons for the proposal (integration into mainstream care, avoidance of duplication) were sufficiently explained.
• PSED: the court reviewed the relevant authorities on the PSED and emphasised that the decision‑maker must personally have due regard, and that consideration must be rigorous and recorded. The final Equality Impact Assessment and material before the Minister did not, in the court’s view, give a sufficiently clear, focussed and candid picture of the likely severe and, in some cases, inevitable adverse effects on many ILF users’ ability to live independently. The court found that the Minister could not be shown to have had a structured, focussed appreciation of the particular equality implications required by section 149 (including the need to advance equality of opportunity and to take steps to meet disabled persons’ different needs).
• Reliance on White Paper: the court rejected the contention that it was unlawful for the Minister to act in the context of government policy expressed in the contemporaneous White Paper; working on that basis was legitimate.

Conclusion and remedy. The court concluded that the PSED had not been complied with. It allowed the appeal and quashed the decision. The court accepted that the consultation was largely adequate but held that the failure to demonstrate that the Minister had given due regard to the specific statutory equality considerations necessitated quashing the decision.

The appeal was allowed and the Minister’s decision to close the Independent Living Fund was quashed. The Court of Appeal held that although the consultation was, broadly, adequate, the decision‑making materials (including the Equality Impact Assessment) did not demonstrate that the Minister personally had given the focused, rigorous consideration required by section 149 of the Equality Act 2010 to the likely severe effects on many ILF users’ ability to live independently. That failure to have due regard rendered the decision unlawful and the appropriate relief was to quash the decision.

Appeal from the High Court (Administrative Court), Mr Justice Blake, [2013] EWHC 897 (Admin); permission to appeal granted and appeal heard in the Court of Appeal, ([2013] EWCA Civ 1345).