Buxton, R (on the application of) v Secretary of State for Work and Pensions

A public authority allocating finite funds between groups sharing the same protected characteristic may balance support for existing recipients against widening access to a scheme. The public sector equality duty does not require every possible piece of research before such a decision is made. A decision-maker may consider the uncertain extent to which employers will provide reasonable adjustments without exhaustive investigation.

For indirect discrimination, a cap on support may be a provision, criterion or practice causing group and individual disadvantage. It is lawful if the authority proves that the cap itself is a proportionate means of achieving legitimate social and employment-policy aims.

The claimant, a deaf user of the Access to Work Scheme, challenged the Secretary of State’s decision to cap his funding for British Sign Language interpreter support. He alleged breach of the public sector equality duty and indirect disability discrimination under the Equality Act 2010. He also sought to amend the claim to challenge the later decision increasing the cap.

The court refused permission to pursue the equality-duty ground, but allowed the amendment and permission on the indirect-discrimination ground. The central questions were whether the equality assessments involved sufficient scrutiny and whether the cap was justified as a proportionate means of achieving legitimate aims.

1. The challenge based on section 149 of the Equality Act 2010 was not arguable. The Secretary of State had considered the needs of disabled people, the competing effects of reallocating finite funds, employer adjustments, and the impact on deaf users. The duty did not require all possible research to be completed before the decisions were made.
2. The equality duty did not prevent consideration of whether employers were providing, or might provide, reasonable adjustments. Exhaustive research was not required. Nor did the duty require priority for existing recipients seeking higher-level employment over people seeking access to the Scheme for the first time.
3. The court accepted that the cap was a provision, criterion or practice which disadvantaged deaf recipients as a group and the claimant individually. The claim was therefore arguable and permission to amend was granted.
4. The Secretary of State established that the cap pursued legitimate aims: widening access to the Scheme, encouraging employer compliance with reasonable-adjustment duties, securing value for money, and distributing finite funds fairly. The cap was rationally connected to those aims because it redistributed available funding without reducing the overall budget.
5. The 2018 cap, set at twice average annual earnings, was proportionate. The minister was entitled to strike the balance between existing high-cost recipients and potential new recipients. The level left funding sufficient for most or all of a BSL interpreter’s services at the rates considered, and mitigation measures further reduced the impact.
6. Permission was refused on the equality-duty ground, permission was granted on the indirect-discrimination ground, and the substantive claim was dismissed.