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

The public sector equality duty applies when a local authority reissues or maintains a charging policy. It requires due regard to specified equality needs, but does not require any particular outcome. In a delegated decision-making structure, the person who actually takes the decision must discharge the duty personally. The fact that another body would have to approve a more costly alternative does not make that body the decision-maker. Decision-makers must consider obvious equality impacts, but need not investigate every conceivable impact. Relief may be refused under section 31(2A) of the Senior Courts Act 1981 where it is highly likely that the outcome would have been substantially the same. The appeal was dismissed.

The appellant, a severely disabled young man unable to work, challenged Birmingham City Council’s adult social care charging policy. He alleged discrimination under Article 14 of the European Convention on Human Rights, indirect discrimination under the Equality Act 2010, and breach of the public sector equality duty in section 149 of that Act.

The High Court, in [2024] EWHC 701 (Admin), rejected the challenge. It held that the charging policy was discriminatory but justified, and that the Council had complied with the public sector equality duty. The appeal concerned the proper decision-maker, the need to gather evidence of impact, the continuing application of the duty, the statutory test for withholding relief, and the justification issue.

1. Disposition. The appeal was dismissed. Ground 1 failed, so ground 5, concerning justification for discrimination, did not arise. Grounds 2 and 4 also failed.
2. Application of the PSED. Section 149 of the Equality Act 2010 applied to the decision to reissue the charging policy without seeking to remove the alleged discriminatory effect. That decision was an exercise of the Council’s functions. The duty required due regard to the specified equality needs, but did not require the Council to achieve a particular outcome. Had a breach been established, the appropriate consequence would have been remission for a fresh decision.
3. Identification of the decision-maker. The natural meaning of section 149 is that the person who actually takes the decision in accordance with the authority’s constitution must comply with the duty. The relevant decision was the decision not to change the existing policy. That decision required no new financial commitment and could be taken by the two authorised officers. The Cabinet’s power to approve a more expensive alternative did not make it the decision-maker for the purpose of the PSED.
4. Non-delegability. The duty is non-delegable, but this means that the actual decision-maker must discharge it personally. Identification of that person is a prior question of fact. There was no case that the officers had delegated the duty.
5. Evidence of impact. The Council understood that the existing policy would affect social care recipients, particularly those unable to work. The post-policy review was focused on the relevant equality issues. An investigation into the impact on every affected adult, or into every conceivable impact, was unnecessary. The Court applied the approach in R (Sheakh) v Lambeth London Borough Council [2022] EWCA Civ 457.
6. Section 31(2A). Although unnecessary to the result, the Court held that the judge was entitled to conclude that, even if there had been a procedural breach, it was highly likely that the outcome would have been the same. Given the Council’s financial crisis, the same decision was almost inevitable. The Court considered the caution referred to in R (Plan B Earth Ltd) v Secretary of State for Transport [2020] EWCA Civ 214 and Gathercole v Suffolk County Council [2020] EWCA Civ 1179.
7. The Court did not decide whether R (SH) v Norfolk County Council [2020] EWHC 3436 (Admin) was correctly decided and expressed reservations about endorsing it. The appeal therefore produced no ruling on that issue.

• Court of Appeal (Civil Division): In [2025] EWCA Civ 393, the appeal was dismissed.
• High Court of Justice, King’s Bench Division, Administrative Court: In [2024] EWHC 701 (Admin), the court held that the charging policy was discriminatory but justified and that the Council had complied with the public sector equality duty.