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

The Secretary of State placed a cap on individual awards under the Access to Work Scheme. The claimant, a deaf person who relies on British Sign Language interpretation, challenged the cap on two grounds: (i) breach of the public sector equality duty under section 149 of the Equality Act 2010 and (ii) indirect discrimination under section 19 of the Equality Act 2010.

The court found that the decision-maker had given adequate "due regard" to the Equality Act duties when considering and updating the equality analysis in 2015 and 2018. The public sector equality duty challenge was therefore not arguable. The indirect discrimination challenge was arguable and permission to amend was granted, but on the substantive hearing the Secretary of State succeeded in justifying the cap as a proportionate means of achieving legitimate social and employment policy aims (broadening scheme access, encouraging employer adjustments, and fairer distribution of finite funds). The claimant's substantive claim was dismissed.

Background and parties: The claimant, Mr Buxton, is deaf (a British Sign Language user) and a long-standing recipient of payments under the Access to Work Scheme, established under section 2 of the Employment and Training Act 1973. The defendant is the Secretary of State for Work and Pensions. The department introduced an individual cap on awards (initially 1.5 times average annual salary in 2015, raised to twice average annual salary in 2018) and transitional protection for existing high award recipients. The claimant argued the cap unlawfully discriminated and breached the public sector equality duty.

Nature of the claim and relief sought: Judicial review challenging the lawfulness of the cap and seeking declaratory relief and damages. The pleaded grounds were (i) failure to comply with the public sector equality duty (section 149 Equality Act 2010) and (ii) indirect discrimination contrary to section 19 of the Equality Act 2010.

Procedural posture: The claim was issued 26 October 2017. Permission to proceed on two grounds was granted by Cockerill J in January 2018. The claimant applied to amend to challenge the March 2018 decision to raise the cap; the Secretary of State accepted the court should decide whether the amended case was arguable. Hearing took place on 26–27 June 2018.

Issues framed by the court: (i) whether the Secretary of State had had "due regard" to the statutory equality aims in section 149(1)(a)–(c) when deciding to revise the cap; and (ii) whether the cap was a provision, criterion or practice that put deaf users at a particular disadvantage and, if so, whether the measure was justified as a proportionate means of achieving a legitimate aim under section 19(2)(d).

Reasoning and findings: On the public sector equality duty, the court held the equality analyses (EA 2015 and EA 2018), the consultation history and the ministerial decision-making demonstrated sufficient consideration of equality matters in the context of finite funds and competing policy aims; the challenge amounted to forensic disagreement with judgments the minister was entitled to make and was not arguable. On indirect discrimination, the court accepted the cap was a PCP that disproportionately affected deaf users and that justification was for the Secretary of State to establish. The court held that the aims relied on (broadening access to the Scheme, encouraging employer reasonable adjustments, and fair allocation of finite funding) were legitimate social and employment policy objectives, that there was a rational connection between the revised cap and those aims, and that raising the cap to twice average earnings was a proportionate measure within the minister's margin of appreciation. Mitigation measures and transitional protections were relevant to proportionality. The indirect discrimination ground was therefore rejected on justification.

Wider context: The judgment notes the challenges of operating a demand-led discretionary scheme within a finite statutory budget, the extensive consultation and review history (including the Sayce review and the Work and Pensions Select Committee), and the deference courts afford to decision-makers in social and employment policy where evidential and budgetary judgments are required.

The claim is dismissed. The court refused permission to amend to pursue the public sector equality duty ground because the equality analyses and decision-making demonstrated sufficient 'due regard' under section 149 of the Equality Act 2010. Permission was granted to amend to pursue the indirect discrimination ground, but on the merits the Secretary of State established that the cap was a proportionate means of achieving legitimate aims and so the indirect discrimination challenge failed.

Permission to proceed was granted by Cockerill J in January 2018; the claim was issued on 26 October 2017. No further appellate history is stated in the judgment.