R (Stuart Bracking and others) v Secretary of State for Work and Pensions (Bracking No.1) (High Court)

The claimants, existing users of the Independent Living Fund (ILF), challenged (1) the lawfulness of the Government's 2012 consultation on proposed closure and devolution of ILF funding and (2) the legality of the December 2012 decision to close the ILF in 2015, principally under the consultation principles established in Coughlan/Gunning and the public sector equality duty (PSED) in section 149 of the Equality Act 2010. The court held that the consultation complied with the recognised requirements for consultation: it was conducted at a formative stage, provided sufficient reasons for consultees to respond, and was candid enough for consultees to explain impact on them. On the PSED challenge, the court found that the Minister and decision-makers had been made aware of the duty, had considered equality matters with rigour (including draft and final equality impact assessments, consultation analysis and ministerial engagement), and had given due regard to the impact on disabled ILF users. The challenges to both the consultation and the decision were dismissed.

This is a first instance judicial review of the Department for Work and Pensions' consultation (July–October 2012) and the December 2012 ministerial decision to close the Independent Living Fund (ILF) from 31 March 2015 and devolve funding to local authorities and devolved administrations.

Background and parties: The claimants are severely disabled ILF beneficiaries. The defendant is the Secretary of State for Work and Pensions. The Equality and Human Rights Commission intervened to assist on the public sector equality duty. The claim attacked both the adequacy of the consultation and whether the PSED (Equality Act 2010, s.149) had been complied with when the closure decision was taken.

Relief sought: Judicial review relief quashing the consultation and/or the decision to close the ILF, and declarations that the PSED had not been complied with.

Issues framed:

• Whether the consultation was legally adequate under principles derived from Coughlan and Gunning (timing, sufficient reasons, adequate time and conscientious consideration of responses).
• Whether the Secretary of State gave "due regard" to the PSED in s.149 Equality Act 2010 when deciding to close the ILF and devolve funding.

Court’s reasoning and findings: The court found the consultation lawful. It was acceptable for the Government to consult on a single policy option (closure with devolution) given the long public discussion of ILF reform and the contemporaneous White Paper. The consultation provided sufficient information to enable consultees to respond and to inform a later equality impact assessment; absence of some data (for example costings) did not render the consultation unfair or non-candid for its stated purpose. On the PSED, the court applied established principles (including the Brown factors) and concluded the decision-maker had been personally aware of the duty, had considered equality matters with substance and rigour (draft and final EIA, analyses, ministerial briefings, engagement with Department of Health and codes of practice), and had given due regard to the likely disadvantage to ILF users. The court emphasised that the PSED is continuing and that future implementation and transition arrangements may require revisiting if they fail to secure the Convention and equality objectives.

Outcome: The challenges to both the consultation and the ministerial decision were dismissed.

The claim is dismissed. The court held that the consultation met the applicable requirements for lawful consultation (formative stage, adequate information to enable intelligent responses, and consideration of responses) and that the decision-maker had given due regard to the public sector equality duty under section 149 of the Equality Act 2010, having considered draft and final equality impact assessments, detailed analyses and ministerial engagement before deciding to close the ILF and devolve funding.