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

The public sector equality duty requires the decision-maker personally to have a rigorous, conscientious and informed regard to the statutory equality objectives. The duty is non-delegable, but it does not require an evidentially perfect or quantitative assessment of every possible impact. The court decides whether the information was adequate; it does not require further inquiries merely because additional material might have been obtained. A decision-maker may rely on qualitative evidence where it gives a sufficiently clear understanding of the gravity and practical nature of the likely impact. The duty concerns the decision-making process and does not require a particular result. International obligations may be relevant considerations, but an unincorporated treaty cannot create a general domestic duty of non-regression or alter the nature of the statutory duty.

The claimants, severely disabled users of the Independent Living Fund, sought judicial review of the Minister’s decision of 6 March 2014 to close the Fund on 30 June 2015 and transfer funding to local authorities and the devolved administrations.

The earlier closure decision had been quashed for breach of the public sector equality duty in R (Bracking and others) v Secretary of State for Work and Pensions. In the present claim, the claimants accepted that the Minister knew the nature and seriousness of the likely effects. They contended that he required further quantitative or predictive evidence about the number of users who would suffer adverse consequences and the extent of those consequences. The central issue was whether the Minister had sufficient information to discharge the statutory duty.

1. The claim was dismissed. The Minister had sufficient information to discharge the public sector equality duty under section 149 of the Equality Act 2010.

2. The duty was personal to the Minister, non-delegable, and had to be exercised in substance, with rigour and with an open mind. The Minister had to be properly informed before making the decision, including by obtaining further information where the material available was insufficient. Whether the information was adequate was for the court to decide.

3. The duty did not require a precise or quantitative prediction of the number of affected people, the amount by which funding might be reduced, or the number who might lose independent living. The Minister had been given clear evidence of the likely gravity and practical nature of the impact, including risks to residence, employment, education and social participation. Further proposed consultations, sampling exercises and a pilot would not have produced sufficiently reliable additional information.

4. The duty was a duty to have due regard, not a duty to achieve a particular result. Once the statutory criteria had been conscientiously considered, the court could not substitute its view of the appropriate weight or merits of the policy. It should resist micro-managing the information-gathering process.

5. The United Nations Convention on the Rights of Persons with Disabilities was a relevant consideration. However, it was an unincorporated treaty. There was no general principle of non-regression in international law which could qualify section 149, and the Minister was not required to decide whether closure would place the United Kingdom in breach of the Convention. He was required to take the relevant obligations into account, which he had done.

6. The evidence showed that the Minister personally considered the equality implications, the possibility of ring-fencing, the need for further evidence and the feasibility of a pilot. The decision therefore involved substantive compliance with the statutory duty.

The judgment describes the earlier first-instance decision in [2013] EWHC 897 (Admin) and the Court of Appeal decision in [2013] EWCA Civ 1345, by which the earlier ILF closure decision was quashed. The present claim concerned a later Ministerial decision.