YVR, R (on the application of) v Birmingham City Council

The Court of Appeal dismissed the appeal challenging Birmingham City Council's 2023 charging policy for adult social care on the basis that the public sector equality duty (PSED) in section 149 of the Equality Act 2010 had been breached. The court held that the PSED applied but was properly discharged by the officers who made the decision not to change the policy, because under the council's constitution those officers were the lawful decision-makers for that course of action. The court emphasised that the PSED is non-delegable but must be discharged by the person who in fact exercises the public authority's function.

The court further held that the council's post-Norfolk review process had been an intense and focused consideration of equality issues and that no separate large-scale evidence-gathering exercise was required about every conceivable impact. Even if there had been procedural shortcomings, section 31(2A) of the Senior Courts Act 1981 meant it was highly likely the outcome would have been the same, given the council's established and severe financial crisis. The Norfolk decision (R (SH) v Norfolk County Council) was distinguished and treated with reserve.

This is an appeal from the Administrative Court (Mrs Justice Collins Rice [2024] EWHC 701 (Admin)). The appellant is a profoundly disabled young man whose assessed eligible needs are met by Birmingham City Council but who is charged for services under the Care Act 2014. The claimant sought judicial review of the council's decision to publish on 27 January 2023 a charging policy which continued to charge severely disabled people the maximum permitted by the statutory scheme without taking steps to remove or reduce an alleged discriminatory effect identified in R (SH) v Norfolk County Council.

The claimant advanced three principal grounds in the High Court (permission granted on all three): (1) unlawful discrimination contrary to Article 14 ECHR read with Article 1 of Protocol 1; (2) indirect discrimination contrary to the Equality Act 2010; and (3) breach of the public sector equality duty (section 149 Equality Act 2010). The judge below found discrimination but considered it justified because the policy was not manifestly without reasonable foundation in the council's exceptional financial circumstances, and briefly held there was no breach of the PSED.

On appeal the issues included whether the PSED applied to the January 2023 decision, who was the relevant decision-maker for the purposes of section 149, whether the decision-maker had gathered adequate evidence of the impact on severely disabled people, and whether any procedural defect would have made a difference under section 31(2A) Senior Courts Act 1981.

• Nature of relief sought: judicial review of the council's decision to introduce the 2023 charging policy without removing or revising aspects alleged to be discriminatory.
• Issues framed: applicability and discharge of the PSED (section 149 Equality Act 2010); whether the PSED required Cabinet-level consideration rather than officer-level decision-making; adequacy of evidence-gathering about impact on the severely disabled; and whether any breach would have altered the outcome under section 31(2A).

The Court of Appeal's reasoning was as follows. The PSED clearly applied. The statutory duty is a duty on the public authority when exercising its functions, but identification of the person who must have "due regard" is a question of fact determined by who lawfully made the decision under the authority's constitution. The officers who decided not to change the policy were authorised to make that decision and thus were the persons who had to discharge the PSED; there was no rule that every officer decision not to change policy must be referred to Cabinet merely because Cabinet alone could make a contrary commitment that would cost over £500,000 per year. The court accepted the judge's finding that the post-Norfolk review process was an intense and comprehensive inquiry into the equality issues and that it was unnecessary to undertake an extensive numerical evidence-gathering exercise about all conceivable impacts. Finally, the court concluded that even if there had been a procedural flaw, it was highly likely the outcome would have been the same given Birmingham's material and well-documented financial crisis, including the section 114 notice and central-government commissioners' intervention. The appeal was dismissed.

The court also noted its reservations about the Norfolk decision, which was distinguished and not followed in this appeal.

The appeal is dismissed. The court held that the PSED applied but that it was properly discharged by the council officers who lawfully decided not to change the charging policy; the post-Norfolk review had been an intense and focussed consideration of equality issues so no further evidence-gathering was required, and in any event it was highly likely the outcome would have been the same given the council's severe financial crisis. Norfolk was distinguished and treated with reserve.

Appeal from the Administrative Court (King's Bench Division, Birmingham District Registry) of Mrs Justice Collins Rice [2024] EWHC 701 (Admin) to the Court of Appeal, judgment in this court [2025] EWCA Civ 393.