Stuart Bracking & Ors v Secretary of State for Work and Pensions

The public sector equality duty requires a decision-maker personally to confront, before and during policy formation, the foreseeable equality consequences of a proposal. The exercise must be substantive, rigorous, open-minded and directed to the specific statutory criteria. General awareness of equality concerns, official knowledge, or an equality impact assessment that fails to expose the practical gravity of the effects will not suffice.

Where a measure may gravely affect a particular cohort within a protected group, the decision-maker must understand that cohort’s particular needs while considering equality across the protected group as a whole. The duty governs process, not outcome. After proper consideration, the decision-maker retains responsibility for the weight given to equality considerations. A decision made without due regard under section 149 of the Equality Act 2010 is unlawful and will ordinarily be quashed, subject to discretionary considerations.

The appellants were disabled recipients of support from the Independent Living Fund. They sought judicial review of the Minister for Disabled People’s decision to close the fund in March 2015 and transfer responsibility and funding to local authorities and the devolved administrations.

Blake J dismissed the claim in the Administrative Court: [2013] EWHC 897 (Admin). The appellants sought permission to appeal, with the substantive appeal directed to follow if permission were granted. They alleged failure to discharge the public sector equality duty under section 149 of the Equality Act 2010, inadequate consultation, unlawful reliance on anticipated social-care reforms and inadequate judicial reasons.

The central issue was whether the Minister had been adequately informed about the consequences for existing fund users and had consciously addressed the statutory equality criteria before deciding to close the fund.

1. Appeal allowed unanimously; decision quashed. The court held that the Minister had not lawfully discharged the public sector equality duty before deciding to close the Independent Living Fund.

2. The duty under section 149 of the Equality Act 2010 places a heavy procedural burden on public authorities. Equality considerations must be placed at the centre of policy formulation. The decision-maker must address them personally, in substance, with rigour, an open mind and conscious attention to the particular statutory criteria. Compliance is required before and when the policy is adopted, and must be capable of demonstration by evidence.

   The duty does not dictate the substantive outcome or prevent government from making decisions that bear harshly on disadvantaged people. Once the decision-maker has properly appreciated the equality implications and the desirability of the statutory objectives, the weight assigned to them remains a matter for the decision-maker.

3. McCombe and Kitchin LJJ held that the materials presented to the Minister did not adequately convey the potentially grave practical consequences for existing fund users, including the risk that many might lose the ability to live independently. General references to possible reductions or alterations in care packages did not provide an adequate foundation for assessing the particular needs of those affected.

   Elias LJ would have inferred that the Minister sufficiently understood the factual consequences. All three judges nevertheless agreed that there was no proper basis for inferring that she had consciously addressed the scope of her legal obligations. In particular, there was no evidence of focused consideration of the need to advance equality of opportunity, minimise disability-related disadvantages or encourage independent living and participation in public life.

4. Existing fund users did not constitute an additional protected characteristic. The Minister nevertheless had to understand the particular impact on the cohort most directly affected while considering the interests of disabled people generally. How competing interests within that protected group should be balanced remained for the Minister after lawful consideration. Elias LJ added that article 19 of the United Nations Convention on the Rights of Persons with Disabilities, concerning community living and independent living, ought to inform the scope of the domestic duty.

5. McCombe LJ separately rejected the consultation and related policy grounds. The costs of closing the fund did not affect consultees’ ability to explain the proposal’s impact. There was no duty to consult on postponement when postponement was not then a proposal. The reasons for closure were sufficiently stated, and the Minister could proceed on the basis of the Government’s wider social-care policy.

6. A decision reached without due regard to the public sector equality duty is unlawful. Subject to any overriding discretionary consideration, the appropriate remedy is ordinarily to quash it rather than grant only a declaration.

1. Court of Appeal (Civil Division): Permission to appeal was granted, the appeal was allowed unanimously and the decision to close the Independent Living Fund was quashed: [2013] EWCA Civ 1345.
2. High Court, Administrative Court: Blake J dismissed the application for judicial review: [2013] EWHC 897 (Admin).