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

This was a judicial review challenge to the Minister's decision of 6 March 2014 to close the Independent Living Fund (ILF) from 30 June 2015 and to transfer funding to devolved administrations and local authorities. The primary legal issue was whether the Minister lawfully discharged the public sector equality duty (PSED) in s.149 of the Equality Act 2010 by having "due regard" to the need to advance equality of opportunity for disabled people. The court held that the Minister had sufficient information and had approached the matter conscientiously and with an open mind: he had been specifically advised on the PSED and on relevant UN Convention provisions (notably Articles 4 and 19), had considered consultation responses and case evidence, had explored ring-fencing and piloting options, and had taken reasonable steps to gather further material. The court rejected the contention that a quantitative exercise to identify precisely how many ILF users would be adversely affected was required. The claim for judicial review was dismissed.

The claimants, severely disabled current ILF users, sought judicial review of the Minister's decision to close the ILF and transfer funding. The claim focused on whether the Minister had complied with the PSED (s.149 Equality Act 2010) and had given adequate consideration to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).

Background and parties:

• The ILF provided high levels of flexible support (personal assistants etc.) to around 18,000 users. Changes in the care landscape (including the Care Act 2014) and earlier decisions to close the ILF to new applicants were described.
• The claimants challenged the 6 March 2014 decision on PSED grounds; the Equality and Human Rights Commission intervened; the defendants were the Secretary of State for Work and Pensions and the EHRC as intervener.

Procedural posture:

• This was a first-instance judicial review hearing. The judgment considered the earlier judicial review (Bracking (No.1) and the Court of Appeal’s treatment of the PSED) as background, but this decision concerned the lawfulness of the new Minister’s decision-making process.

Issues framed by the court:

• Did the Minister personally have "due regard" under s.149 Equality Act 2010 to the need to eliminate discrimination, advance equality of opportunity and foster good relations in deciding to close the ILF?
• Was further information-gathering required (including quantitative assessment of how many users would be adversely affected) before taking the decision?
• What weight, if any, should be given to the UNCRPD in discharging the PSED and did the Minister fail to take international obligations into account?

Reasoning and findings:

• The court reviewed relevant authorities on the PSED, including the requirement that the duty is personal, non-delegable and must be exercised "in substance, with rigour and with an open mind". The court rejected the defendant’s narrower submission that the decision-maker’s reasonable (but mistaken) belief that he had sufficient information would always suffice: adequacy of information is for the court to decide.
• The court found the Minister was specifically advised on s.149 and relevant UNCRPD provisions, had read the consultation responses and Equality Analysis (EA), had direct discussions with officials, and had explored options including ring-fencing, s.31 grants and piloting.
• The court rejected the contention that the Minister was required to undertake or commission a quantitative analysis to determine how many ILF users would be adversely affected or to determine precise financial impacts across the 18,000 users. The earlier Bracking (No.1) authorities required a focused appreciation of the gravity and nature of adverse impacts, not an evidentially perfect numerical quantification.
• The court rejected arguments that the UNCRPD imposed a judicially enforceable ‘‘non-regression’’ principle or required the Minister to determine whether the decision would breach international law; the Minister was, however, required to take the Convention into account, which he did.
• The court concluded that further inquiries suggested by claimants (re-running consultations, sampling local authorities, transfer-review based studies) would not have yielded materially better or reliable evidence and that the Minister had properly considered whether to pursue further evidence, reasonably rejected a pilot, and had sufficient material to discharge the PSED.

Relief sought and disposition:

• The claim sought to set aside the Minister’s decision. The High Court dismissed the claim, concluding the PSED had been lawfully discharged.

The claim is dismissed. The court held that the Minister had complied with the public sector equality duty in s.149 Equality Act 2010: he had given focused, conscientious consideration to the equality implications (including relevant UNCRPD provisions), had inspected consultation evidence and Equality Analyses, had explored ring-fencing and piloting options and had taken reasonable steps to obtain further material. The court found no legal obligation to undertake the detailed quantitative exercise the claimants sought and concluded additional enquiries would not have produced materially better evidence for discharge of the PSED.