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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> South West Care Homes Ltd & Ors, R (on the application of) v Devon County Council & Anor  EWHC 2967 (Admin) (07 November 2012)
Cite as:  EWHC 2967 (Admin)
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QUEEN'S BENCH DIVISION
2 Park Street Cardiff, CF10 1ET
B e f o r e :
| THE QUEEN On the application of SOUTH WEST CARE HOMES LIMITED AND OTHERS
|- and -
|DEVON COUNTY COUNCIL
|THE EQUALITY AND HUMAN RIGHTS COMMISSION
Timothy Straker QC and Charles Bourne (instructed by Devon County Council) for the defendant
Helen Mountfield QC (instructed by the Equality and Human Rights Commission) for the intervener
Hearing dates: 8-10 October 2012
Crown Copyright ©
His Honour Judge Jarman QC:
a) Where a local authority has assessed a person under section 47 of the 1990 Act and has decided that residential accommodation should be provided, the local authority shall, subject to paragraph 3 of the Directions, make arrangements for accommodation for that person at the place of his choice within the UK (ie at his preferred accommodation); see paragraph 2;
b) The local authority shall only be required to make arrangements for the person to be accommodated at his preferred accommodation if…. the cost of making arrangements for him at his preferred accommodation would not require the authority to pay more than they would usually expect to pay having regard to his assessed needs: see paragraph 3(b).
"One of the conditions associated with the provision of preferred accommodation is that such accommodation should not require the council to pay more that they would usually expect to pay, having regard to assessed needs (the usual cost). This cost should be set by the councils at the start of a financial or other planning period, to be sufficient to meet the assessed care needs of supported residents in residential accommodation. A council should set more than one usual cost where the cost of providing residential accommodation to specific groups is different. In setting and reviewing their usual costs, councils should have due regard to the actual costs of providing care and other local factors. Councils should also have due regard to Best Value requirements under the Local Government Act 1999."
i) The council failed to comply with its duty under section 149 of the Equality Act 2010 to have due regard to (i) the need to eliminate discrimination and/or (ii) the need to advance equality of opportunity among elderly and disabled persons. An equality impact assessment (EIA) carried out by the council in January 2012 to inform the decision is, say the claimants, flawed;
ii) In coming to its decision the council failed to consult lawfully and failed to provide consultees with sufficient information to enable a proper understanding of the proposal and to make meaningful representations in relation to it;
iii) The decision is irrational because of specific logical flaws in the calculation and/or the unreasonableness of its conclusion.
Ground 1-the Equality Duty
"(1) A public authority must, in the exercise of its functions, have due regard to the need to-
a) eliminate discrimination….,
b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
"It is the clear purpose of section 71 to require public bodies to whom that provision applies to give advance consideration to issues of race discrimination before making any policy decision which might be affected by them. This is a salutary requirement, and this provision must be seen as an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation. It is not possible to take the view that the Secretary of State's non-compliance with that provision was not a very important matter."
"… promotion of equality of opportunity … will be assisted by, but is not the same thing as the elimination of racial discrimination … the promotion of equality of opportunity is concerned with issues of substantive equality and requires a more penetrating consideration than merely asking whether there has been a breach of the principle of non-discrimination…"
"(1) This section applies if a person (P) reasonably thinks that -a) persons who share a protected characteristic suffer a disadvantage connected with that characteristic,b) persons who share a protected characteristic have needs that are different from the needs of persons who do not share it, orc) participation in an activity by persons who share a protected characteristic is disproportionately low.
(2) This Act does not prohibit P from taking any action which is a proportionate means of achieving the aim of -d) enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage,e) meeting those needs, orf) enabling or encouraging persons who share the protected characteristic to participate in that activity.
i) Regard must be had to the purpose of the policy in question, the context in which it will operate and what results are intended.
ii) Understanding the impact on different groups is a key step in identifying whether a policy might unlawfully discriminate and modern public services should be shaped by evidence-based policy-making.
iii) Analysing equality information will involve asking what steps can be taken to mitigate any negative impacts on people with particular characteristics.
iv) Choosing a course of action may involve making changes.
i) Decision makers in public authorities whose decisions might affect persons with a disability must be aware of the duty to have due regard to the goals specified in the 2010 Act;
ii) The duty must be consciously fulfilled before and at the time that a particular policy which might affect such persons is being considered;
iii) The duty must be exercised in substance, with rigour and with an open mind;
iv) The duty cannot be delegated;
v) The duty is continuing;
vi) It is good practice for such decision makers to keep an adequate record showing the consideration given to such a duty.
"Clearly the duty applies not only to the formulation of policies, but also to the application of those policies in individual cases: Pieretti v Enfield LBC  EWCA Civ 1104;  HLR 3".
"The relevant legal principles are now well established ... I would emphasise the need for the court to ask whether as a matter of substance there has been compliance, it is not a tick box exercise. At the same time the courts must ensure that they do not micro-manage the exercise.. It is only if a characteristic or combination of characteristics is likely to arise in the exercise of the public function that they need to be taken into consideration. I would only add the qualification that there may be cases where that possibility exists in which case there may be a need for further investigation before that characteristic can be ignored ..."
"States Parties to this Convention recognise the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that
a. Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;
b. Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;
c. Community services and facilities are available on an equal basis to persons with disabilities and are responsive to their needs."
"Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status".
a) The circumstances in which the relevant decision was made and the precise nature of the decision must be carefully examined;
b) The fixing of fees (as in the present case) involves the determination of the usual cost of care in accordance with the 1992 Directions and Guidance.
c) The usual cost must be sufficient to meet the assessed care needs of supported residents in residential accommodation and the local authority should be able to demonstrate that this is the case.
d) Each of the supported residents has an individual care plan under section 47 of the 1990 and a local authority in assessing the care needs of the individual is required to have regard to its equality duty;
e) Such a decision does not involve the restriction or termination of services or changes in eligibility criteria.
f) Rather the decision (if there is compliance with the Guidance) is that the fees are sufficient to enable the assessed care needs of supported residents to be met.
"Instead of looking at how NICE as a public body could itself promote equal opportunity, having accepted that the Guidance could have a discriminatory effect if applied slavishly, the approach taken was to leave it to others to sort out in the hope and expectation that they would. That, in my judgment, is not good enough".
Ground 2- consultation
"To be proper, consultation must ….. include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response…"