D, R (On the Application Of) v Worcestershire County Council

The claimant challenged the Council's adoption of a policy setting a "usual maximum expenditure" for non-residential care packages for adults under 65 on two procedural grounds: (1) that the consultation was materially defective because consultees were not given sufficient information about the consequences of the proposal; and (2) that the Council failed to comply with its public sector equality duty under section 149 of the Equality Act 2010. Key legal principles applied included the requirements for lawful consultation (Coughlan: consultation must be at a formative stage, provide sufficient reasons and information to permit an intelligent response, allow adequate time and conscientiously take responses into account) and the nature and scope of the PSED (section 149: a public authority must have due regard to eliminating discrimination and advancing equality of opportunity, which is a matter of substance not form).

The court rejected the claim. The judge found that the consultation documents, accompanying materials and further information published during the consultation were adequate to enable consultees to respond intelligently; the consultation was not "radically wrong" or otherwise unlawful. On the PSED claim, the court held that the Cabinet had been aware of, and had given due regard to, equality issues: an Equality Impact Assessment had been prepared, an EIA working group had met, and the Cabinet had before it material from the consultation and the EIA. Overall the court concluded Cabinet had given proper consideration to the PSED and the decision was lawful.

Background and parties: The claimant, a young disabled person (through his mother as litigation friend), challenged Worcestershire County Council's policy "Policy for Determining the Usual Maximum Expenditure for Non-Residential Care Packages" (adopted 8 November 2012). The policy set, subject to exceptions, a maximum weekly expenditure for community care for adults under 65 by reference to the net weekly cost of a care home placement capable of meeting the same eligible needs. The claimant reserved substantive challenges but pursued two procedural grounds: unlawful consultation and breach of the public sector equality duty (PSED, s.149 Equality Act 2010).

Procedural history: Permission to proceed was initially refused by Males J (14 February 2013) but subsequently granted and the substantive hearing expedited by Kenneth Parker J (16 May 2013). The claim was heard before Hickinbottom J on 18–19 July 2013 with further written submissions thereafter.

Nature of the claim / relief sought: Judicial review challenging the lawfulness of the Council's policy adoption process. The remedies sought were declaratory relief and quashing of the decision to adopt the policy if unlawful.

Issues framed:

• Whether the consultation was materially defective because consultees were not provided with sufficient information about the likely consequences of the policy (notably the alleged realistic choice between inadequate home support and residential care).
• Whether the Council breached its PSED under s.149 Equality Act 2010 when adopting the policy.
• Subsidiary issues of locus and whether the claimant had standing to bring the claim (addressed but not determinative).

Court's reasoning (concise): The judge applied established consultation law (Coughlan and later authorities) and the settled approach to the PSED. On consultation, after reviewing the draft policy, the consultation documents (including an Easy Read version), targeted representative events, documents placed on the consultation portal, the Council's replies to the critical "Past Caring" report, and an extension of the consultation period, the court concluded consultees had been given sufficient, fairly presented information to respond and that later material added during consultation was part of a permissible "natural evolution" of the consultation. The contention that the policy necessarily forced a significant proportion of service users to choose between inadequate home care and residential care was rejected: the judge found the claim's premise (that the authority always previously met needs at the cheapest possible cost) to be false and accepted that the Council retained scope to develop lawful, adequate community packages and to exercise discretion in exceptional cases. On the PSED, the judge held the Cabinet had an EIA before it, an EIA working group considered effects, and Cabinet minutes and reports demonstrated conscious and adequate attention to equality considerations; formal requirements of "due regard" were satisfied and the exercise was not shown to be irrational.

Outcome: The claim failed in respect of both grounds and the Council's decision to adopt the policy was held lawful.

The claim is dismissed. Hickinbottom J held that (i) the consultation process was not materially defective: consultees had sufficient information and the subsequent publication of further material and extension to the consultation did not render the consultation unlawful, and (ii) the Council complied with its public sector equality duty under section 149 of the Equality Act 2010: the EIA, EIA working group and material before Cabinet showed Cabinet gave proper, substantive regard to equality considerations. The claimant therefore did not establish procedural illegality warranting quashing of the decision.

Permission was initially refused by Males J on 14 February 2013; permission to proceed and expedition of the substantive hearing were granted by Kenneth Parker J on 16 May 2013. The substantive hearing was before Hickinbottom J in the Administrative Court (this judgment).