The journey of Ulysses was classically eventful and hazardous. Local authorities seeking to effect necessary budget cuts can find their journey through the public sector equality duty and its predecessors equally challenging. Many local authorities, such as Birmingham, have fallen by the wayside, even though (as the old 1930s song advised) they subsequently picked themselves up, dusted themselves down and started all over again.

However, one authority has recently traced a safe path through this minefield. On 2 September, Lancashire County Council successfully resisted a High Court challenge to proposed adult social care budget reductions. This was the decision of Mr Justice Kenneth Parker in JG and MB v Lancashire County Council [2011] EWHC 2295.

In February, Lancashire approved revenue budget proposals for the financial years up to 2013/14, which included a finite cash sum within which all adult social care services would be provided. While this involved significant budgetary reductions, the decision did not amount to approval for any particular proposals.

These were to be the subject of further debate by the council’s Cabinet Member for Adult and Community Services following consideration of the responses to various consultations.

A report was prepared on the results of the consultation, and a ­separate report on a proposed increase in the threshold for adults accessing social care under the Fair Access to Services Scheme (FACS). Relevant guidance required authorities to prioritise their adult social care support in four ‘need’ bands: low, moderate, substantial and critical, according to local needs and resources. The council’s proposal was that services would be provided only if needs were categorised as ‘substantial’ or ‘critical’, rather than simply ‘moderate’.

The council also proposed a detailed plan involving a suite of measures to mitigate the effect of these proposals. These measures included case reviews, risk assessments, advocates, a range of advice services, welfare benefit checks, and the council’s ‘Help Direct’, which signposts ‘a huge range of help and support tailored to individuals’ needs’. These resources would be captured in an information pack and available on the council’s website.

The claimants were two disabled women who contended that the council had breached its duty under section 49A of the Disability Discrimination Act 1995 to have ‘due regard’ to the need to take steps to promote equality of opportunity for disabled people, and the need to take account of disabled persons’ disabilities, even where that involved treating such persons more favourably than others.

The current law can be found in the Equality Act 2010, section 149 of which contains the Public Sector Equality Duty. Section 149(1) requires a public authority in the exercise of its functions to have due regard to the need to: (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this act; (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.

Protected characteristics are: age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

As indicated above, the present claim was brought under the former section 49A of the Disability Discrimination Act 1995 (repealed by the Equalities Act as from 5 April 2011). This required public authorities in discharging their functions to have due regard to: (a) the need to eliminate unlawful discrimination and victimisation; (b) the need to eliminate harassment of disabled persons that is related to their disabilities; (c) the need to promote equality of opportunity between disabled persons and other persons; (d) the need to take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons; (e) the need to promote positive attitudes towards disabled persons; and (f) the need to encourage participation by disabled persons in public life.

Legal principles

The court noted a number of relevant principles from case law in this area (details of which are in the Lancashire judgment). These include:

1. The duty is not to achieve a particular substantive result but to have ‘due regard’ to the need to achieve the goals in question. Due regard is that which ‘is appropriate in all the circumstances’;

2. The authority must have regard to any relevant ‘countervailing factors’ which it is proper and reasonable to consider. In the absence of unreasonableness or irrationality this is a matter for the authority and not the court;

3. Although an Equalities Impact Assessment (EIA) is a helpful way of demonstrating compliance with the statutory duty there is no obligation to conduct one;

4. The ‘due regard’ must be before and at the time that the policy in question is being considered;

5. ‘Due regard’ must also be ‘an essential preliminary’ to any important policy decision and not a ‘rearguard action following a concluded decision’. This means that the duty must be ‘an integral part of the formulation of a proposed policy, not justification for its adoption’.

6. ‘Due Regard’ means specific regard by way of conscious approach to the specified needs in question.

7. If a risk of adverse impact is identified, consideration should be given to measures to avoid that impact before fixing on a particular solution.

Kenneth Park J noted from R (WM and others) v Birmingham City Council [2011] EWHC 1147 (relied on by the claimants) that although the council had been aware of the need to pay due regard, it had not in fact sought to carry out an assessment of the practical impact on those whose needs fell into the substantial but not into the critical band.

It was therefore found to have failed to have ‘due regard’. Also in R (Rahman) v Birmingham City Council [2011] EWHC 944 (where there had also been a failure to demonstrate ‘due regard’) the EIA’s assessment of service user prejudice was inadequate in its examination of the evidence and was in a number of respects driven by hopes of the advantages to be derived from the new policy, rather than focusing on the assessment of the degree of disadvantage to existing users.

Decision of the court

The judge noted that the approval of the council’s overall budget in February 2011 was not the final decision about what the council’s policies would be or about specific savings under individual proposals.

The proposals would be implemented only after due regard had been paid to the need to promote equality of opportunity and to take account of disabled persons’ disabilities.

While the economic reality was that to meet the imperative to reduce expenditure ‘it would be extraordinarily difficult to avoid an adverse effect on adult social care’, there did remain ­flexibility as to how any such effect on disabled persons could be minimised and mitigated.

Kenneth Parker J was therefore satisfied that the council had kept an open mind as to the precise policies that would be implemented. In the circumstances, it was sensible and lawful for the council first to formulate its budget proposals and then, at the time of developing the policies in question, to consider the specific impact of proposed policies that might be implemented within the budgetary framework.

As to the FACS policy, by the time the decision had been taken to change the FACS eligibility criteria, the council had carried out a detailed and comprehensive analysis of the probable impact on service users (particularly disabled persons) and there had been specific analysis of the probable effects on those groups resulting from the proposed changes. In addition, the council had considered how the probable adverse effects might be mitigated.

Whether or not the mitigating steps were adequate was a matter for the council to determine, but the fact that the council did direct its mind towards such mitigating steps demonstrates that the authority did in fact have ‘due regard’ to the relevant considerations. In the circumstances, the council had acted lawfully.

The Lancashire case indicates how it is possible for an authority to trace a lawful and reasonable path through the legislative minefield of equalities when contemplating budget reductions in as user-sensitive a manner as possible.

The judge rejected entirely ‘in the light of the detailed evidence relied upon by the council, the hypothesis that the procedure was a cosmetic exercise, in which the council was already committed to the implementation of specific policies at the time the budget framework was set, and was doing no more than going through the motions of setting out the consequences of a pre-determined course’.

Such an approach would of course be unlawful since the relevant duty does need to be discharged properly, substantively and conscientiously. It would also of course be inappropriate to regard Lancashire’s approach as a ready template for all such decisions where careful regard needs to be given to individual circumstances in the light of the statutory criteria. However, in difficult circumstances Lancashire appears to have managed to square a circle.

Dr Nicholas Dobson is a senior consultant with Pannone specialising in local and public law. He is also communications officer for the Association of Council Secretaries and Solicitors