Branwood, R (On the Application Of) v The Secretary of State for Communities And Local Government

For consultation to be lawful, a public authority must consult while proposals remain formative, provide sufficient information for an intelligent response, allow adequate time, and conscientiously consider the responses. Fairness does not generally require consultation on options which were not included in the published draft scheme.

The public sector equality duty requires substantive, conscious and open-minded attention to the relevant statutory needs. It does not require a formal equality impact assessment, express citation of the duty, exhaustive data collection, or forensic analysis of every possible impact. The court should not micro-manage the public authority’s evaluative judgment unless it is unreasonable or perverse.

The claimant, a disabled working-age resident, challenged Rochdale Metropolitan Borough Council’s decision to adopt a local council tax support scheme under the Local Government Finance Act 1992, as amended. The scheme capped support at the Band A level and required working-age claimants to pay at least 25 per cent of their council tax.

She alleged inadequate consultation and breach of the public sector equality duty under section 149 of the Equality Act 2010. The court also considered whether the claim had been brought too late. The central questions were whether Rochdale’s consultation was fair and whether its decision-makers had, in substance, paid due regard to the statutory equality needs.

1. Outcome. Permission to apply for judicial review was granted, but substantive relief was refused. The challenge to Rochdale’s scheme therefore failed.
2. Consultation. The statutory and common-law requirements were fact-sensitive. Rochdale consulted while the draft scheme remained open to change, explained the funding problem and the principal features and effects of the proposal, allowed a ten-week response period, and conscientiously considered 1,168 responses. The personal letters sent to claimants provided sufficient information for an intelligent response. The absence of a comments box did not prevent consultees from making further representations by letter.
3. Following the Court of Appeal’s decision concerning Haringey, fairness did not require Rochdale to consult on alternative schemes, the default scheme, or the reasons for rejecting those alternatives. Nor was further consultation required merely because a transitional grant became available.
4. Public sector equality duty. Section 149 required due regard to the statutory equality needs, not achievement of a particular result. The duty was non-delegable and required conscious, open-minded engagement before options were determined, but there was no formal requirement for an equality impact assessment or express reference to section 149. A public authority could focus on equality impacts that emerged with sufficient prominence. The weight given to countervailing factors was for the authority, subject to rationality review.
5. Rochdale’s equality assessment modelled the effects of different options, considered protected groups, retained relevant benefit disregards, and sought to protect vulnerable people. Its conclusion that the scheme was proportionate and rational was not unreasonable or perverse. The court would not substitute its assessment of the competing financial and equality considerations or require exhaustive analysis of every possible demographic permutation.
6. The delay objection failed. The claimant had acted reasonably promptly in the circumstances.