Bracking & Ors, R (on the application of) v Secretary of State for Work and Pensions

A public authority which voluntarily consults before making a decision must consult fairly, while retaining latitude to consult on a single provisional option and to develop parallel policy work. A consultation need not contain every available piece of information if consultees understand the proposal and can respond intelligently.

The public sector equality duty requires timely, substantive and rigorous consideration of the statutory equality goals. An equality impact assessment is neither mandatory nor sufficient in itself. The decision-maker must personally engage with the duty, consider relevant evidence and maintain an adequate record. The duty is continuing and may require reconsideration as policy, legislation, guidance or funding develops.

The claimants were severely disabled users of the Independent Living Fund. They sought judicial review of the consultation on closing the Fund in 2015 and of the Secretary of State’s subsequent decision to close it and devolve responsibility for eligible care and support needs to local authorities and devolved administrations.

The claimants alleged that the consultation lacked sufficient information and candour, and that the Secretary of State had failed to comply with the public sector equality duty under the Equality Act 2010. The Equality and Human Rights Commission intervened on the equality-duty issue. The central questions were whether the consultation was lawful and whether the decision-maker had had due regard to the statutory equality considerations.

1. Consultation. The consultation was lawful. Under the principles stated in R v North and East Devon Health Authority, ex p Coughlan [1999] EWCA Civ 1871; [2001] QB 213, a voluntary consultation must take place while proposals remain formative, provide sufficient reasons for intelligent consideration and response, allow adequate time, and be conscientiously considered. The Secretary of State was entitled to consult on one option and to proceed on the basis of planned legislation and the White Paper. The consultation sufficiently explained the intended move to local-authority funding. It was not rendered unlawful by the absence of a completed equality impact assessment, closure-cost information or disclosure of all parallel governmental discussions.
2. Public sector equality duty. Section 149 of the Equality Act 2010 required due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations. The principles identified in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) were satisfied: the Minister knew of the duty, considered it personally and substantively, and had regard to the relevant evidence. The duty was non-delegable and continuing. The process was not a box-ticking exercise.
3. The court recognised a real possibility that closure could reduce existing users’ funding to statutory Category 2 needs, affecting independent living, employment, education and participation in community life. Those consequences, and the principles in Article 19 of the UN Convention on the Rights of Persons with Disabilities 2006, were relevant to the continuing application of the equality duty. The Minister’s consideration of the impact, transitional safeguards, competing evidence, administrative simplicity, fairness and economic sustainability was sufficient at the decision-making stage.
4. An equality impact assessment was a useful tool but neither a necessary precondition nor conclusive proof of compliance. If the intended legislative reform or transitional guidance failed to materialise, or funding became so austere that existing progress in independent living could not be maintained, the equality duty might require reconsideration.
5. The challenges to both the consultation and the closure decision failed. The court added that, even if the equality duty had not been discharged, relief would have been confined to a declaration rather than quashing the 2012 decision.