Logan, R (on the application of) v London Borough of Havering

A council tax reduction scheme may distinguish between working-age claimants and pensioners where that distinction is required by primary legislation. A scheme applying a single percentage reduction to working-age claimants is not necessarily indirectly discriminatory against disabled people, particularly where disability-related income is disregarded, disability premiums are included and discretionary support is available for exceptional hardship.

The public sector equality duty requires conscientious consideration of the statutory equality criteria by each decision-maker at the time of policy formation and decision-making. It is not enough that relevant material was available, or that officers and some councillors considered it. Where the evidence does not establish that all decision-makers had due regard, the adoption procedure is defective.

The claimant challenged the London Borough of Havering’s 2015/16 council tax reduction scheme. The scheme reduced the maximum support available to working-age claimants from 100% to 85%, while statutory arrangements continued to provide 100% support for qualifying pensioners.

The claimant was severely disabled, unable to work and dependent on state benefits. He alleged discrimination on grounds of disability and age under Article 14 of the European Convention on Human Rights, read with Article 1 of Protocol No 1, and under the Equality Act 2010. He also alleged that the full Council had failed to comply with the public sector equality duty because not all councillors had been provided with, or had read, the officers’ report and equality impact assessment.

The court therefore considered both the legality of the scheme itself and whether the procedure for adopting it complied with the public sector equality duty.

1. Discrimination. The discrimination claims failed. The scheme applied to working-age claimants below the applicable amount irrespective of age or disability. The distinction between working-age claimants and pensioners arose from primary legislation, not from Havering’s scheme. Disability could not be equated with unemployability, and the scheme already recognised disability through income disregards and premiums.
2. The court distinguished Burnip v Birmingham City Council [2012] EWCA Civ 629; [2012] LGR 954. That decision did not establish that it is always discriminatory to require disabled people to meet ordinary living expenses from benefits paid partly because of disability. Council tax was a general living expense. The availability of discretionary support was also relevant when the scheme was considered as a whole.
3. The discretion to award additional support was an important mitigating stage of the scheme. In an individual case involving severe disability, inability to enter the labour market, basic needs consuming available benefits and no realistic means of increasing resources, there could be a strong case for 100% support. A refusal might be irrational or discriminatory, but the legality of any refusal would depend on the circumstances then prevailing.
4. Public sector equality duty. Section 149 of the Equality Act 2010 imposed a personal duty on each decision-maker. Following Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 and R (on the application of Hunt) v Somerset Council [2013] EWCA Civ 1320, due regard required conscientious consideration of the statutory criteria at the time of decision-making. It was not a tick-box exercise and could not be inferred merely because material was available or could have been accessed.
5. The equality impact assessment was adequate. However, the evidence did not show that all members of the full Council, or all participants in the decision, had accessed it or understood its importance for discharging the statutory duty. The procedure for adopting the scheme was therefore defective, although the scheme itself was not unlawful on discrimination grounds.
6. The court declined to grant a declaration. The claimant had delayed, had suffered no financial prejudice because he received discretionary 100% support, and the 2015 scheme was rapidly becoming historical. A useful public purpose had nevertheless been served by the court’s conclusions. The claim consequently succeeded only to the extent of the court’s findings, without formal relief.