R (Domb) v Hammersmith and Fulham [2009] EWCA Civ 941

This is somewhat off our usual turf here at Nearly Legal, but should be of interest to anyone involved in public law challenges. This case involved a challenge to a decision by Hammersmith and Fulham to start charging (or more accurately, recommence charging) for home care services.

Three claimants, Deborah Domb, Dulce Sobral and Moses Bushiwa, challenged this decision claiming that it breached a legitimate expectation (in their manifesto before the 2006 local elections the local Conservative party stated that “A Conservative Council will not reintroduce Home Care Charging”) and it was a breach of the equality duties.

In the High Court Sir Michael Harrison disagreed ([2008] EWHC 3277 (Admin), but not on BAILII as far as I can tell). The claimants appealed, with the Equality and Human Rights Commission intervening in their support, but the Court of Appeal only considered the arguments on the equality duties, permission having been refused on the legitimate expectation issue.

Hammersmith and Fulham – home care services

The Council has roughly 1800 users of home care services. In 2006 the then Labour administration stopped charging. In May of that year power shifted to the Conservatives. The Council struggled with its budgeting, having pledged to cut council tax by 3%, and in 2007 cut the number of users of home care services by excluding those classified as having lower moderate needs. This still wasn’t enough, so they then considered two possibilities: either excluding everyone with moderate needs or charging for the service again, which would need to be paid by service users with income above a certain level. After consultation and carrying out a Predictive Equality Impact Assessment (PEIA) the Council decided to bring back charging. They estimated that some 600 of the 1,800 users would have to pay.

Equality Duties

In the Court of Appeal the argument was whether the Council had breached the three equality duties, covering race, gender and disability, contained in s 71 of the Race Relations Act 1976, s 49A of the Disability Discrimination Act 2005, and s 76A of the Sex Discrimination Act 1976. There are various components to these duties, but the key one in this case was the equality of opportunity duty. For disability this means that public authorities have to have due regard to “the need to promote equality of opportunity between disabled persons and other persons”: DDA, s49A(1)(c). The gender and race duties have similarly worded provisions.

The “big point” on behalf of the Claimants, advanced by David Wolfe, was that the Council could hardly be said to have taken the disability equality duty into account when the only two options being considered were imposing charges or raising the eligibility threshold. The whole budgetary canvas should be considered. If money needed to be saved then the council tax reduction could have been abandoned, or many other ways of saving or raising money could have been considered. Rix LJ did not agree. In his judgment it was not possible to go behind the decision to reduce council tax by 3%. At [61] he said that it was:

“mistaken to suggest that all possible theoretical options had to be regarded as being open… Decision making would simply become impossible on such a basis. One has to start somewhere, and the budget decisions which had already been taken, whether final or capable of being revisited, are not capable of being impugned in these proceedings.”

The Claimants also argued that the PEIA had found that the proposed policy would have a negative impact on female service users and those from an ethnic minority background. Rix LJ agreed with the submissions of Tim Kerr QC, on behalf of the Council, that this was not the case. Although ethnic minority residents were more likely to receive home care services, they were also less likely to have income to render them liable for the charge and so they were not disproportionately affected. Similar arguments were accepted with regard to the higher number of female service users.

Sedley LJ and Lord Clarke MR agreed with Rix LJ, but Sedley LJ expressed some dissatisfaction with this case. He felt that the premise that the decision to cut council tax by 3% had to be implemented was “highly debatable” ([78]) and that parts of the PEIA were “Panglossian”. He concluded at [80] that:

The object of this exercise was the sacrifice of free home care on the altar of a council tax reduction for which there was no legal requirement… there is at the back of this a major question of public law: can a local authority, by tying its own fiscal hands for electoral ends, rely on the consequent budgetary deficit to modify its performance of its statutory duties? But it is not the issue before this court

Comment

“But they haven’t done an equality impact assessment” is a fairly common complaint, although even that can be of less use to a challenge than people think; see, for instance, R(Brown) v SSWP [2008] EWHC 3158 (Admin) and R(Meany) v Harlow DC [2009] EWHC 559 (Admin). However, in this case the Council had carried out an assessment, and seemingly a fairly detailed one at that.

I do feel some sympathy with Hammersmith and Fulham. Most LAs charge for their home care services (about 97% charge according the Council’s evidence, which seems right), and a lot will only provide services to people classified as criticial or substantial. The Council’s charging rate was below the average for London boroughs. Yet they didn’t need to make this decision. As Sedley LJ says the Council tied its own hands.

Those of you particularly interested in EIAs might want to look at a current consultation which considers this very topic. It is open until the end of this month.