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Care homes, consultation and the DDA

Boyejo & Ors, R (on the application of) v Barnet London Borough Council [2009] EWHC 3261 (Admin)

This was the conjoined hearing of an application for Judicial Review of both Barnet and Portsmouth Councils, both JRs bought by Yvonne Hossack and here represented by Stephen Knafler. It makes a distinct contrast and counterpoint to R (Garbet) v Circle 33 Housing Trust and another [2009] EWHC 3153 (Admin) [our note here]. It also makes important findings for anyone dealing with local authority policy or service provision decisions affecting people with disabilities. Apologies for the lengthy note, but detail is unavoidable…

Again, the issue was the withdrawal of resident warden services in sheltered housing schemes. Both Portsmouth and Barnet sought to replace sleep in or resident warden services with mobile services. Judicial reviews of these decision were joined by the Court. By the time the matters came to hearing the Claimant’s grounds against Barnet were:

First, it is submitted that in reaching the decision in question Barnet failed to fulfill its statutory duty under section 49A(1) of the [Disability Discrimination Act 1995] to have due regard to the six needs there set out, each of which identifies a particular goal the achievement of which would further the overall aim of the Act to eliminate discrimination and harassment of disabled persons and to promote equality of opportunity for them in society. Secondly, it is submitted, Barnet failed to follow its own Equality Scheme 2007/8-2010/11, adopted to comply with The Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 2005 (the Regulations) made under the Act, because it did not sufficiently involve disabled persons or groups representing their interests in the decision making process. The final submission is that Barnet failed to follow the statutory code of practice called The Duty to Promote Disability Equality: Statutory Code of Practice (the Code) made by the Disability Rights Commission (now named the Equality and Human Rights Commission and to which I shall refer as the Commission) under section 53A(1C) of the Act, in respect of such involvement or the assessment of the impact of the proposals on disabled persons.

Against Portsmouth, the Claimant argued that ‘a preliminary impact assessment in that case carried out by a policy development manager in the Housing Service, which concluded that the proposed changes would or could have no adverse effect or impact on members of equality groups including disability groups’, was in breach of the statutory duty or alternatively was Wednesbury unreasonable.

Both Portsmouth and Barnet argued that they had complied with their statutory duty, with Barnet further arguing that that it ‘carried out a robust consultation exercise with residents and interested groups, including those representing the interests of disabled persons. Finally, it says that there was no duty to carry out a full equality impact assessment and that the assessment which was carried out was adequate.’

S.49 provides that:
“[49A General Duty.]
[(1) Every public authority shall in carrying out its functions have due regard to-
a) the need to eliminate discrimination that is unlawful under this Act;
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.”

[…]
[49D Power to impose specific duties]
[(1) The Secretary of State may by regulations impose on a public authority, other than a relevant Scottish authority or a cross-border authority, such duties as the Secretary of State considers appropriate for the purpose of ensuring the better performance by that authority of its duty under section 49A(1)..”

The s.49D power was used to bring in the Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 2005 in 2005.

Further, Barnet and Portsmouth were under a duty to consider the Duty to Promote Disability Equality: Statutory Code of Practice produced by the Disability Rights Commission, which included guidance that an impact assessment should be carried out. The recommendations of the Code are non-binding, but regard must be had to it.

The Court considered the procedures adopted by Barnet and Portsmouth at some length. In January 2009, Barnet, seeking to reduce spend on support for sheltered housing by £950,000 had embarked on a consultation which revealed that:

(88%) of those responding felt that sheltered housing residents would be disadvantaged if current services were replaced by the new proposed floating support services. The five most frequently made points were: floating support would not meet the needs of residents; current levels of support would be reduced, peace of mind would be adversely affected; support would not be available as and when needed; and the new service would be impersonal.

Barnet had disbanded its Disability Panel set up under the DES and the replacement Disability Equality Advisory Group had only had 3 members and was defunct at this point. Two senior adult services managers drafted an equality impact assessment in 3 pages, which included:

11. Is there evidence or any other reason to suggest that it could have a different effect or adverse impact on any section of the community? Or more specifically, one or more of the six equality strands?

No. No adverse impact, subject to the majority of existing funding being available for re-investment.

No figures were available on how many people likely to be affected were disabled. The report for Council (and recall that none of this had had any input from a Disability panel or advisory group) stated:

4.2 The key risks identified in the consultation are those relating to tenants’ health and welfare, in particular, the most vulnerable tenants, and the related key risk of increases in social care spending. The preferred option (option 3) would best address the risks identified through the public consultation of changes to sheltered housing. There are a number of complexities to implementing the preferred option and it will be necessary to work closely with sheltered housing providers and tenants in planning and bedding down new service provision to mitigate these risks further.
—–
5 EQUALITIES AND DIVERSITY ISSUES
5.1 The Equality Impact Assessment indicates that the preferred service option would promote greater diversity in provision as support will be available to people living in their own homes. The council’s 2006 review of sheltered housing in the borough found BME groups represented only 7% of sheltered housing tenants, just half the census rate. In contrast, analysis of floating support usage in Barnet shows 19% of older people entering services were from BME groups. This inequality is reinforced by the current distribution of expenditure on Supporting People services for older people with over 60% of investment directed to services for sheltered housing tenants who make up less than 3% of the borough’s older residents. The proposal is to commission services that are needs-led and available to all, unlike current sheltered housing provision that discriminates against those populations who are less likely to wish to choose this housing tenure.

Note the complete lack of any specific address to disability equality. Option 3 was the ‘mobile warden’ option raised in the consultation and aimed to save £400.000.

In Portsmouth, where cost savings of roughly 50% were sought, a survey of 66 random sheltered housing residents in May 2009 produced the result:

45 said that a night time response was important. Personal safety and security was mentioned by 28 residents and speed of response by 22 residents

Portsmouth soon after wrote to the residents to tell them that ‘European working time directives, the Council’s Local Pay Review and reductions in the Government’s Supporting People funding for sheltered housing’ meant that changes were necessary to ‘minimize charges to residents’. Meetings were arranged to ‘specifically talk about the changes’. This was described by Portsmouth as a ‘consultation’.

An equality impact assessment form was filled out by a Policy Assessment Manager, who had apparently ‘undergone training on equality issues and attends Portsmouth Fairness and Equality Group’. Her recommendation was that no full assessment needed to be carried out because:

One of the main concerns raised by a number of residents was the perceived reduction in security. Rather than have someone asleep on the premises from 22.00pm until 09.00am, there will be a roaming team covering all the seven schemes. Although initially this seems like a reduction in cover, in reality the change will lead to a more responsive service. Currently one sleeping member of staff may be hard to wake and some residents may not wish to wake them. Although the roaming team could not be at each scheme physically for the whole night they will make regular checks (up to three or four per night). In addition to this, they will know about any residents who have night time habits, and the day team will update them of any particular issues that may have occurred prior to the night service.

The report recommending the changes to the housing executive committee of the Council that was to approve the changes stated that, following consultation, two objections to the proposed scheme had been received from residents and that an equalities impact assessment showed ‘that the service changes will continue to provide a fair and accessible service to all our residents.’

Held

On the claimed failure to have regard to the s.49A(1) duty:

The claimants alleged a failure to have regard to the duty, particularly (d) to take account of a disabled persons’ disabilities, even if that means ‘more favourable’ treatment, and (f) to encourage participation in public life.

Neither decision had expressly addressed the Act or its requirements. Following R (Chavda) v London Borough of Harrow [2007] EWHC 3064 (Admin) and R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), there was no requirement to have specific reference to the Act or the Section. Howvever, ‘what is required is that the duty is exercised in substance, with rigour and an open mind.’

It is not the case that the Claimant’s must show an absence of due regard in the sense of Wednesbury unreasonableness, R (Meany & Others) v Harlow District Council [2009] EWHC 559 (Admin) applied. While the Court was prepared to accept that ‘regard was had in the preparation of the respective reports in each case by officers who had relevant training and experience and say that they had the duty in mind’, there was a failure ‘to bring the duties adequately to the attention of the decision makers in making these particular decisions’.

Further, such awareness as they may have been did not amount to a substantial, rigorous and open minded approach. There may be some references to disabilities in the reports and documents, but nothing to show that ‘due regard was had, for example, to the need to take account of disabled persons’ disabilities even where that involves treating disabled people more favourably than other persons’.

Portsmouth’s argument that there was no need to raise these issues with the decision makers where there was no impact on disabled persons does not sit with the note that these were radical changes in the impact assessment that was carried out, nor the results of their information gathering, which raised the time difference in response for a warden as likely to have a significant impact on peace of mind of residents. Regard must be had to such fears in assessing impact. The evidence was that the impact would be more than minor, meaning that the s.49A(1) duty should have been put before the decision-makers.

Neither authority in my judgment had any or sufficient regard to such an impact upon those residents with disabilities as a separate group or to the need to recognise that the taking into account of those disabilities may involve treating disabled persons more favourably than others. References in the documentation before the decision makers in each case to disabilities or to rights of equality do not fulfil the requirement of such recognition. Nor does a general awareness amongst officers or decision-makers of the duty under section 49A(1). In my judgment, it follows that in both cases there has been a failure to comply with that duty and in particular sub-section (d). That alone is sufficient to vitiate each of the decisions.


On consultation and involvement

The Claimants argued for a duty to consult,, breached here, a legitimate expectation raised by DES that disabled people would be involved in decisions affecting them, citing R v Devon County Council ex parte Baker [1995] 1 All ER 73. Portsmouth denied that any such duty arose, but the representations of the DES in both cases did give rise to a legitimate expectation of consultation, so a duty arose.

A consultation must be carried out properly, ‘ it must be undertaken at a time when the proposals are still at a formative stage. Sufficient reasons must be given to allow those consulted to give intelligent consideration and an intelligent response. There must also be adequate time for such a response’.

Barnet’s consultation met this requirement. Portsmouth’s quite simply didn’t. Its purported consultation letter was providing information on a planned change, not seeking views. No alternatives were raised or considered and the concerns of residents ignored, despite the known results of the May 2009 survey.

However, there was no breach of a legitimate expectation raised by DES that consultation would be through a particular process. There was no such process specified by DES.

As for the Code, the court in Brown at paragraphs 119 and 120 accepted three propositions as to its effect. Firstly, a public authority must take it into account when considering disability issues. If it decides to depart from it cogent reasons must be given and they must be convincing. There are however no higher positive duties to comply with the code. Secondly, if a breach of a general duty under section 49A(1) is alleged and it appears to the court that relevant guidance given by the Code has not been followed without cogent reason, then that may be a powerful factor which leads the court to conclude that there is a breach of statutory duty. Thirdly, it is for the public authority to explain clearly and convincingly the reason for the lapse.

It is clear that the involvement of disabled persons envisaged by the Code in decisions affecting them goes beyond mere consultation. Applying those propositions in these cases, in my judgment for the reasons given above Barnet involved disabled persons in its decision in a substantive way, but Portsmouth did not. For the reasons given in paragraphs 58, 59 and 63 above, each of those authorities however in my judgment failed to adopt an approach to mainstream disability equality in the decision challenged and in that regard there is a breach of Code which is a factor supporting the conclusion that each is in breach of its statutory duty.

On Impact Assessments
The Claimants did not pursue criticisms of the failure to carry out full impact assessments.

However, the criticisms that the officers who carried out the impact assessments came to Wednesbury unreasonable conclusions were justified in the case of Portsmouth, for the reasons given above. Barnet’s impact assessment posed the question whether the proposed changes ‘could have a different or adverse impact on any of what were referred to as the equality strands, including disability’. The answer did not deal with the issue and was therefore Wednesbury unreasonable.

Remedy
The decisions were quashed in each case and the matter to be reconsidered. it was not for the court to express a view as to the outcome of that reconsideration.

This is a long note, but there is a lot in this judgment, in particular on the conjoined effect of the DDA, the 2005 Regulations and the ‘Statutory Code’. Anyone involved in making or contesting local authority policy and service provision decisions likely to have an impact on people with disabilities should look at this case very closely.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

2 Comments

  1. The.Dark.One

    I’m not sure that Independant Living /sheltered Housing Scheme purists would be happy with the title “Care homes..”!

    Reply
    • NL

      Very true, but I am a sucker for a little alliteration. Apologies to anyone not happy.

      Reply

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