Meany & Ors, R (on the application of) v Harlow District Council [2009] EWHC 559 (Admin)

Monday March 9th, 2009
Neutral Citation Number: [2009] EWHC 559 (Admin)
    CO/1446/2009

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
THE ADMINISTRATIVE COURT

    Royal Courts of Justice
Strand
London WC2A 2LL
    9 March 2009

B e f o r e :

MR JUSTICE DAVIS
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Between:

  THE QUEEN ON THE APPLICATION OF MEANY, GLYNN AND SANDERS Claimants
  v
  HARLOW DISTRICT COUNCIL Defendant

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Mr D Wolfe [Miss T Hetherington] (instructed by Public Law Project) appeared on behalf of the Claimant
Mr J Holbrook (instructed by Harlow District Harlow District Council) appeared on behalf of the Defendant

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HTML VERSION OF JUDGMENT
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  1. MR JUSTICE DAVIS: On 18 December 2008 the defendant Council by a resolution of its Policy and Resources Committee resolved to advertise an invitation to tender for its welfare rights and advice services within the district in budgetary bands up to £100,000 per annum, £150,000 per annum, £200,000 per annum and £250,000 per annum. On 12 February 2009 the Policy and Resources Committee resolved that the grant previously available for such services be reduced from the previously prevailing sum of £500,000 per annum by an amount of £400,000 per annum, thereby in effect mandating the invitation to tender as being for an amount up to £100,000 per annum.  
  2. Before that time such services had been provided to the defendant Council by a non-profit making company, limited by guarantee, known as Harlow Welfare Rights and Advice (“HWRA”). It had done so under a written contract dated 16 June 2003 for a period up to 31 March 2008, which period had then been extended for a further year to 31 March 2009. The services were provided by HWRA for a stated annual contract price of nearly £500,000 per annum. By reason of the resolution of 18 December 2008 HWRA was notified that the contract would cease on 31 March 2009. It was, of course, permitted to be one of those who could tender; but even if it were successful if it did tender, the annual contract price would be vastly less than the previous contract price.  
  3. It is common ground that HWRA had provided an excellent quality service during the period of its contract. The cessation of HWRA’s contract would have a very significant impact on its operations and staffing levels, a number of redundancies being inevitable. Further, the reduction in the grant available from around £500,000 per annum to £100,000 per annum would inevitably have a significant impact on the level of welfare rights advice and services offered in Harlow. Moreover, such a reduction would prospectively affect the grants and other support provided by other external organisations.  
  4. HWRA was greatly dismayed and aggrieved at the decisions. It made representations and protests to the defendant Council. In addition, Mrs Meany, a resident of Harlow and a service user of HWRA and no doubt prompted to do so by HWRA, retained solicitors to raise legal objection to the decision of 18 December 2008 and in due course that of 12 February 2009. Mrs Meany was in due course joined by Mr Sanders and Mrs Glynn, other residents of Harlow and themselves service users of HWRA.  
  5. At the same time, and clearly in close co-operation with HWRA and the lawyers acting for Mrs Meany and as part of an orchestrated campaign, certain councillors sought to have called in the resolution of 18 December 2008. After a very lengthy meeting on 16 January 2009 the Scrutiny Committee of the Council by a majority vote voted to reject the calling in. There was further legal correspondence, but the resolution of 18 December 2008 was then, in effect, both confirmed by the Policy and Resources Committee on 12 February 2009 and implemented by the decision to reduce the grant for discretionary welfare rights and advice services to £100,000 per annum.  
  6. This claim form was issued the following day, on 13 February 2009, the claimants being Mr Sanders, Mrs Meany and Mrs Glynn. All have obtained legal aid for this purpose. HWRA, although clearly involving itself closely in all that is going on, is not a party and thus has no exposure to costs. It is, however, accepted that Mr Sanders, Mrs Meany and Mrs Glynn have locus standi to pursue these proceedings. Each of them has in fact filed a witness statement explaining how the reduction in the amount of the grant in the context of extensive previous assistance provided to them by HWRA could or would significantly affect them as individuals.  
  7. The essential, although by no means only, challenge to the two decisions of the defendant Council is this. It is said that the decisions in question are legally flawed in that the defendant did not discharge its statutory duties by reason of its failure to have due regard to its statutory obligations under the Disability Discrimination Act 1995 as amended, the Race Relations Act 1976 as amended and the Sex Discrimination Act 1976 as amended. But further points are also asserted. These are that the defendant wrongly failed to have any relevant equality impact assessment prepared and, further again, that it failed in making these two decisions to have any, or any sufficient, regard to material considerations. These being, so it is said, first, the impact of the proposed cut on the service available to residents of Harlow, second, the extent to which the saving in the contract sum would be off-set by indemnities contractually payable to HWRA in respect of redundancies and the like and, third, the process by which such services would be maintained between 31 March 2009, when the current HWRA contract ended, and the date when any new contract for which tenders were being invited was projected to come into effect, estimated as 4 May 2009.  
  8. The matter came before me as a matter of some urgency by virtue of a previous ruling that the question of permission and of any interim relief be heard at an expedited oral hearing. At the hearing before me counsel for both sides indicated that their submissions and evidence and documentation were complete and they would not wish to put in any further materials at a later stage. So in practice, and by consent, the hearing before me was conducted as a rolled up hearing.  
  9. I turn to the background facts. As explained in the witness statements of Lynn Seward, the defendant’s head of community services, dated 26 February 2009, and of Councillor Simon Carter, deputy leader of the council and chairman of the Policy and Resources Committee, Harlow District Council had been a council under severe financial and other pressures for a number of years. A review of the Audit Commission in 2004 rated its performance as “poor”. One requirement was to shift spending away from discretionary services to prioritising statutory services: which was a policy which was implemented. This, along with other measures, resulted in an assessment by the Audit Commission in 2007 rating the council’s performance as “good”.  
  10. Nevertheless, the financial pressures continued. For 2009 to 2010 a budget gap of some £2.7 million was identified. Against a policy of the council to seek to achieve a balanced budget further savings were clearly called for. As explained by Ms Seward and Councillor Carter this meant that the services and their costs offered by HWRA had to be reviewed. It is important to note that these particular welfare and rights advice services were discretionary services, in the sense that the defendant Council was under no statutory obligation to provide them via HWRA. The defendant Council was under a statutory obligation to provide advice and assistance in, for example, the fields of housing and housing benefits and homelessness; but, as the evidence placed before me showed, such services could be and were provided by the defendant Council, they indeed having a budget of some £400,000 for such services being offered directly by the council.  
  11. As Councillor Carter explains in his witness statement, difficult decisions had to be made to achieve the necessary overall budget cut. The more so, as he put it, because the defendant Council was, in common with other councils, facing a “perfect storm” (in his phrase) of falling income from various sources, rising demand from services, and a very small increase in government grant. Further, it was assessed that by comparison with other councils the defendant Council had been spending significantly more proportionately on discretionary advice services of this kind. Although some challenge has been made by HWRA to that proposition, and it may be some refinement to what is asserted is called for, it seems to me that overall this point as to comparison is in substance fairly made by the defendant Council.  
  12. Councillor Carter summarised the position at the end of his witness statement in this way:  

    “With the background of the recession, reducing the funding available for advice services was agreed very reluctantly. Due recognition was given, however, to the way that the provision of welfare advice has changed over the years, with the availability of other providers and support groups, growth and availability of the Internet, and the way benefit providers assist potential claimants. Following a long period of regular cuts to jobs and services there was very little left where savings could be made and therefore a reduction to discretionary welfare advice funding was unavoidable. We would always like to do more.”

  13. Both Ms Seward and Councillor Carter also stated that heretofore HWRA had been “insulated” over nearly six years from cuts. Miss Seward pointed out that other discretionary services within Harlow had had in the interim to be significantly reduced or even terminated, including, by way of example, a scheme for offering affordable childcare, a day centre service centre for the elderly and so on. It was disputed on behalf of HWRA that it had been so insulated. But, to the extent that it is relevant, my view on the evidence before me is that, whilst during the period of its contract and the one year renewal HWRA had suffered some relatively small cuts, it had in essentials been relatively insulated as Ms Seward was saying.  
  14. The actual process by which these decisions were eventually arrived at was this. The Policy and Resources Committee on 13 March 2008 resolved to review the provision of welfare rights and advice services. At the same time it resolved to extended HWRA’s contract by one year only to 31 March 2009. A Working Group was set up to review the position.  
  15. The Working Group of councillors first met on 26 March 2008. It aimed to report by June 2008, but in the end, as it turned out, there was significant slippage. The group was assisted by council officers, including Ms Seward herself.  
  16. The Working Group met again on 14 May 2008 when there was, amongst other things, a presentation by Ms Jones on behalf HWRA. The group met again on 25 June 2008 when, amongst other things, more detailed funding and service model analysis for comparator authorities was sought.  
  17. On 28 July 2008 the Working Group met again and proposed putting a number of options to the Policy and Resources Committee. This was, in the event, done by means of a detailed report prepared by Ms Seward and approved by the Working Group. That was in due course submitted to the Policy and Resources Committee and was available to it for its meeting on 25 September 2008. The report is in evidence before me, being exhibited as LS4 to Ms Seward’s witness statement of 26 February 2009. Its stated purpose was to inform the Committee of the findings of the Working Group that had been appointed to consider the future of the welfare rights and advice services. The report set out in some detail the background and also set out the range of evidence which had been considered by the Working Group. Such evidence included, as it was stated, comparison of service provision, levels of deprivation and expenditure on welfare rights and advice services in Harlow with other local authorities, and also discussion with HWRA about the range and extent of local needs, the achievement of the organisation and the contribution that it made to the council’s objectives and to the local community in terms of preventing homelessness and debt and tackling poverty through increasing take-up of benefit and so on.  
  18. The report then undertook an evaluation of the contract with HWRA and went on to assess the current situation. As part of their assessment there was this comment:  

    “Additionally, any significant reduction in Council funding may lead to a reduction in the external funding that HWRA secures, and therefore the impact of reduced funding could effectively lead to disproportionate reduction in service. A further factor is that under the terms of the funding agreement with HWRA, the Council is responsible for any redundancy costs incurred through a reduction in funding.”

  19. Under the heading “The Way Forward” four options were proposed. Each was set out with the main negative aspects and risks and the main benefits of each option being summarised.  
  20. The first option was one of “minimal change”. One assessed benefit was that that would enable the continuation of high quality valued services with no or minimal service reduction. One downside was assessed as being that the Head of Legal Services had advised that the contract should be subject to the Council’s procurement procedures.  
  21. The second option put forward was to follow the council’s procurement procedures to secure a new five-year contract with a budget to be determined by the Policy and Resources Committee. Various benefits for such a course were set out. The main negative aspects of that option were summarised as follows:  

    “Depending upon the budget set, there may well be a reduction in the service provided.

    Depending upon the budget set, there may be redundancies and pension financial stain payments, for which the council would need to identify funding.

    It is likely that there would be a proportionate reduction in other funding — and therefore services — as most external funding is conditional upon matched funding being available.”

  22. Option 3 was described as tendering the contract competitively without giving a budget but specifying the core services that would be required. That, again, set out various benefits and disadvantages.  
  23. Option 4 was an option of bringing the service back in-house and restructuring it. Again, the benefits and disadvantages were summarised.  
  24. The conclusions of the report were at paragraph 21 in these terms:  

    “There is no simple solution to the challenge of being able to provide a quality welfare rights and advice service, while reducing the Council’s subsidy. The Working Party has considered a wide range of data, and has considered the four options outlined above. Each of the options has benefits, drawbacks and risks. Option 4 offers very few advantages and significant risks and for this reason it has been discounted by the Working Group.”

  25. The Working Group went on to recommend that the Policy and Resources Committee decide which of options 1 to 3 should be adopted and stated that if option 2 were selected it was recommended that the Committee determine the budget available for welfare rights and advice services as soon as possible.  
  26. Over the page there was then set out in the report a heading called “Implications”. This included the following matters. Under the heading “Social Inclusion” it was stated:  

    “Welfare rights and advice services often prevent people from getting into debt, or becoming homeless, and enable vulnerable people to understand and take up benefits that they are entitled to. They are therefore a key instrument in preventing social exclusion.”

  27. Then under the heading “Equal Opportunities”:  

    “Access to information about welfare rights and advice is an important mechanism for ensuring equality of opportunity for all groups in the community, but particularly those that are vulnerable to discrimination.”

  28. It may be noted that in the course of discussing the potential negative aspects of option 2, two of the highlighted points had been qualified by the words “depending upon the budget set”.  
  29. At all events, this report was duly considered on 25 September 2008 by the Policy and Resources Committee, at least one member of which, incidentally, was at all relevant times a member of the Working Group.  
  30. Amongst other things the following was resolved:  

    “(a) the findings of the Working Group in relation to the five-year contract with HWRA, particularly in relation to the high quality of the service that has been provided be noted;

    (b) Option 2, as outlined in the report, be adopted in relation to the delivery of welfare rights and advice services, but a budget for the provision of those services be not determined by this Committee at present;

    (c) a further task and finish working group be established to take forward Option 2 and to recommend a budget to this Committee for the provision of welfare rights and advice services and it be agreed that the Council’s procurement procedures should be followed to secure a contract to provide a service within that budget.”

  31. On 8 December 2008 the Working Group met for that purpose. There was consideration of the background information report available. It was commented that whilst the report on comparative funding provided information about expenditure on advice services by a range of other local authorities, the Working Group felt there was insufficient information available to enable it to set an actual budget for the contract. The resolution was that:  

    “… due to insufficient information a budget could not be recommended to the Policy and Resources Committee for the five-year contract for the delivery of welfare rights and advice in Harlow.”

  32. This was before the Policy and Resources Committee when it met on 18 December 2008. The report of that occasion, prepared by Ms Seward, again set out the position. The current situation was summarised and reference was made to levels of deprivation and the like. It was further noted in the report that the Working Group concluded that it should not recommend a budget.  
  33. Again, included in this report was the heading “Implications”. There was a further subheading “Social inclusion” in these terms:  

    “The provision of welfare rights services enables people on low incomes to obtain free advice on issues such as debt, employment legislation, housing et cetera, and therefore help to break down barriers to social inclusion.”

  34. Under the heading of “Equal opportunities”:  

    “Welfare rights and advice services often advise members of the public on issues relating to discrimination, and therefore help to promote equality of opportunity.”

  35. The meeting of the Policy and Resources Committee itself as minuted sets out what was discussed there. Under the heading of “Welfare Rights and Advice Services” the Committee noted that it had received the report and also the minutes of the Working Group of 8 December. It was noted that the Working Group had concluded that it did not have sufficient information to recommend a budget.  
  36. The minute then goes on in these terms:  

    “In the absence of a recommended budget, it was agreed to invite tenders at different cost levels.

    Resolved that

    (a) the report and minutes of the Welfare Rights and Advice Working Group held on 8 December 2008 be noted;

    (b) an invitation to tender for welfare rights and advice services be advertised at the beginning of January 2009 and tenderers be invited to submit proposals for service provision at the following budgetary bands:-

    Up to £100,000 per annum.

    Up to £150,000 per annum.

    Up to £200,000 per annum.

    Up to £250,000 per annum.”

  37. A notification of the termination of HWRA’s contract was sent the next day.  
  38. Concerns as to this decision and queries as to its lawfulness were raised almost immediately on behalf of HWRA. Concerns were also raised by external bodies such as the Legal Services Commission and Advice for Life.  
  39. A very detailed letter was sent by solicitors for Mrs Meany on 15 January 2009 raising a great number of objections, including objections by reference to the Disability Discrimination, Race Relations and Sex Discrimination legislation. This was followed by a letter of 20 January 2009 and a very lengthy letter of 26 January 2009 from the board of trustees of HWRA.  
  40. The defendant Council responded by letter of 2 February 2009. Amongst other things it was said by the defendant Council in that letter that due regard had been given by the Council to the legislation.  
  41. After the proposal to call in had been rejected by the Scrutiny Committee in January 2009 a further meeting of the Policy and Resources Committee was held on 12 February 2009, amongst other things to consider the 2009/2010 budget. There was a lengthy report of that date before the Committee, which is exhibited as LS2 to Miss Seward’s witness statement of 26 February 2009. That comprised 14-pages with lengthy appendices. At the conclusion of that report “Implications” were set out. They were in these terms under the heading “Social Inclusion”:  

    “The initiatives outlined in Appendix J have been designed to provide information and support to individuals and organisations facing potential hardship in the current economic climate. Access to such information and advice can help to address social exclusion.”

  42. Under the heading “Equal Opportunities”:  

    “None specific although, in relation to Appendix J, any advice and support should be provided in such a way as to be accessible to all sections of the community.”

  43. Appendix J, I might add, related to “Response to recession”. Appendix C2, on the other hand, included details of proposed service adjustments. In Appendix C2 this was said with regard to welfare rights and advice reduction in grant. The amount of the proposed service reductions was put at £400,000. The comment by way of potential implications and proposed mitigation was in these terms:  

    “Significant reduction in service. Core services will be specified and tendered to achieve best value for the Council. Council will bear redundancy and pension strain payments. Adverse publicity and public dissatisfaction extremely likely.”

  44. As I have indicated, this claim form was issued the following day challenging the decisions of 18 December 2008 and 12 February 2009.  
  45. I turn then to the applicable law. The relevant section in the Disability Discrimination Act 1995 as amended is contained in section 49A(1) that is in these terms:  

    “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.”

  46. So far as the Race Relations Act of 1976 is concerned, the relevant duty is imposed in these terms:  

    “Every body or other person specified in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need –

    (a) to eliminate unlawful racial discrimination; and

    (b) to promote equality of opportunity and good relations between persons of different racial groups.”

  47. Turning then also to the Sex Discrimination Act 1976, the relevant duty is imposed by section 76A(1) in these terms:  

    “A public authority shall in carrying out its functions have due regard to the need –

    (a) to eliminate unlawful discrimination and harassment, and

    (b) to promote equality of opportunity between men and women.”

  48. I was also briefly referred to Codes of Practice and Statutory Instruments made for the purposes of the primary legislation which I need not set out here.  
  49. It will therefore be seen that each Act as a common denominator imposed a general duty to have due regard, first, to the need to eliminate unlawful discrimination and, second, to the need to promote equality of opportunity between relevant groups; although the Disability Discrimination Act 1995 sets out further criteria as well.  
  50. It will be noted that public authorities must have not “regard” but “due regard” to the matters specified. The word “due” must add something. In fact, that is the subject of consideration in a number of cases to which Mr Wolfe on behalf of the claimants referred me. Thus the wording is expressly addressed by Dyson LJ, with whom Sir Robin Auld and May LJ agreed, in the case of R (Baker) v Secretary of State for Communities and Local Government [2008] EWCA (Civ) 141, being a case on the race relations legislation in the context of a planning decision. 
  51. At paragraph 30 Dyson LJ set out a number of propositions advanced by counsel. At paragraph 31 Dyson LJ said this:  

    “In my judgment, it is important to emphasise that the section 71(1) duty is not a duty to achieve a result, namely to eliminate unlawful racial discrimination or to promote equality of opportunity and good relations between persons of different racial groups. It is a duty to have due regard to the need to achieve these goals. The distinction is vital. Thus the Inspector did not have a duty to promote equality of opportunity between the appellants and persons who were members of different racial groups; her duty was to have due regard to the need to promote such equality of opportunity. She had to take that need into account, and in deciding how much weight to accord to the need, she had to have due regard to it. What is due regard? In my view, it is the regard that is appropriate in all the circumstances. These include on the one hand the importance of the areas of life of the members of the disadvantaged racial group that are affected by the inequality of opportunity and the extent of the inequality; and on the other hand, such countervailing factors as are relevant to the function which the decision-maker is performing.”

  52. At paragraph 34 Dyson LJ went on to refer to the matters which an inspector was required to take into account and stated:  

    “Ultimately, how much weight she gave to the various factors was a matter for her planning judgment.”

  53. Dyson LJ went on to note a submission that a person does not perform the relevant duty unless he demonstrated by the language in which he expressed his decision that he was conscious that he was discharging the duty. At paragraph 36 Dyson LJ said:  

    “I do not accept that the failure of an inspector to make explicit reference to section 71(1) is determinative of the question whether he has performed his duty under the statute. So to hold would be to sacrifice substance to form.”

  54. Then at paragraph 37 Dyson LJ said this:  

    “The question in every case is whether the decision-maker has in substance had due regard to the relevant statutory need. Just as the use of a mantra referring to the statutory provision does not of itself show that the duty has been performed, so too a failure to refer expressly to the statute does not of itself show that the duty has not been performed. The form of words suggested by Mr Drabble to which I have referred above may not of itself be sufficient to show that the duty has been performed. To see whether the duty has been performed, it is necessary to turn to the substance of the decision and its reasoning.”

  55. Dyson LJ went on to say that nevertheless, it was good practice for a decision maker to make express reference to the relevant statutory provision.  
  56. The same approach was taken (this time in the context of the disability discrimination legislation) by the Divisional Court in the widely publicised recent case of R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) (the post office closures case). 
  57. The approach of Dyson LJ in Baker was followed by the Divisional Court in the Brown case (see paragraph 82 of the judgment of the Divisional Court). That particular paragraph also concluded with these words:  

    “Moreover, the weight to be given to the countervailing factors is a matter for the public authority concerned, rather than the court, unless the assessment by the public authority is unreasonable or irrational: see Dyson LJ’s judgment in Baker at paragraph 34.”

  58. The Divisional Court in Brown then very helpfully to set out a number of principles which could have application in a context such as the present. It did so in paragraphs 90 to 96 of its judgment. These principles included, amongst others, the proposition that decision makers must in this context be aware of their duty to have “due regard” to the identified goals, that this involves a conscious approach and state of mind, and that the duty must be exercised in substance with rigour and an open mind, and it is not a question of ticking boxes. The need for keeping proper records was also emphasised. It was, incidentally, in Brown held on the facts of that case that there had been no breach of the disability discrimination legislation notwithstanding failures in some respects to refer expressly to section 49A(1).  
  59. For his part Mr Holbrook, appearing on behalf of the defendant Council, referred me to the comments of Lord Brightman in the case of Puhlhofer v Hillingdon London Borough Council [1986] 84 LGR 385 at 413 to 414. Lord Brightman said this, in the context of the circumstances of that particularly case with which he was dealing:  

    “But it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case.”

    He then went on to refer to other principles, including references to Wednesbury, and went on:

    “Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.”

  60. One might speculate that Lord Brightman may have been very surprised at the huge growth in the number of judicial review claims and the range and reach of the Administrative Court in this regard in the supervening 20 years, although, no doubt, that is in great part because of the huge explosion in legislation and in the decision making of government departments and other public bodies. But Lord Brightman’s comments remain valid, as confirmed by Hallett LJ in the case of R (Ireneschild) v Lambeth Borough Council [2007] EWCA (Civ) 234
  61. Nevertheless, the importance of “due regard” being exercised in this context is reinforced by the fact that Parliament has made the obligation an unqualified one. Thus Sedley LJ in the case of R (Bapio) v Secretary of State for the Home Department [2007] EWCA (Civ) 1139 (that being a case on the race relations legislation) emphasised the “importance of compliance with section 71 not as a rear guard action following a concluded decision but as an essential preliminary to any such decision.” 
  62. Further, as explained Mumby J in the case of R (E) v Governing Body of JFS [2008] EWHC 1535 (Admin), the duty is to have due regard (in the context of race relations which was the subject matter before him) so far as involved the decision maker, both to the need to eliminate unlawful discrimination and to have regard to the need to promote equality of opportunity. Mumby J said that the decision maker must “direct its mind” to such matters. 
  63. So the question here is, have the claimants shown that no such regard was had by the defendant Council? That, as I see it, is the key question. As I have said, other grounds are also advanced. I can, I think, dispose of those relatively shortly. The first is that the defendant Council failed to conduct an impact assessment. That is true, but as the authority of Brown shows there is no duty to have such an assessment. Further, as Ms Seward explains in her witness statement, there were so many options here which the defendant had to consider that it would have been wholly impracticable to have conducted a formal assessment for each option. So this ground can have no independent force taken on its own. At most it can only inform the debate on the principal question. But I need say no more than that because ultimately Mr Wolfe accepted that as so.  
  64. The other supporting ground is the alleged failure to have regard to relevant considerations. It is first said that the defendant failed to have regard to the impact of the proposed cut on the service available to the public. But this was generally considered both by the Working Group and by the Policy and Resources Committee and in the culminating meeting of 12 February 2009. The potential impact was, in terms, summarised in appendix C2. The claimants may have preferred the defendant to have given more weight to this particular point, but that was a matter for the defendant, not, with all respect, for the claimants.  
  65. Second, it is said that the defendant did not take into account the cost of indemnities arising out of the termination of HWRA’s contract. But quite apart from the fact that Ms Seward confirms in her witness statement that this was taken into account, the point is again referred to in appendix C2 contained in the report of the meeting of 12 February 2009. It is also in terms referred to in the report before the Policy and Resources Committee meeting on 25 September and 18 December 2008 and further references to the loss of potential matching external funding had also been previously made. So regard had been had to that.  
  66. The third asserted point is that no regard was had to the potential gap between the end of HWRA’s contract on 31 March 2009 and the start of the new contract of the successful tenderer projected for the beginning of May 2009. In the context of a 12-month reduction from £500,000 to £100,000 for the annual contract the diminution in service for one month could not be regarded as particularly significant. In any event, Ms Seward explains in her witness statement what services did remain available on offer from the Council in that period to bridge the gap. There is no suggestion at all that there would be any failure to discharge statutory obligations in that one month period.  
  67. So, overall, I regard these particular grounds as of no substance and I return to the main point.  
  68. At this stage I should record two important concessions made, and in my view rightly made: one made by Mr Wolfe for the claimants and one made by Mr Holbrook for the defendant.  
  69. First, Mr Wolfe accepted that however much the claimants, and no doubt HWRA also, disagree with the decisions it cannot be said that those decisions are perverse or irrational or decisions that no reasonable council could have reached. He acknowledges, in the light of the financial pressures and other such matters, that such decisions were properly open to the defendant Council. Thus the attack in this case is on the means by which the decisions were reached and, in particular, by reference to the alleged failure to have due regard to the discrimination criteria.  
  70. Second, for his part Mr Holbrook accepted that even though there could not here be any question of direct discrimination and even though the spending on the HWRA contract was discretionary and not statutorily mandatory, nevertheless the council was under a duty of due regard as set out in the discrimination legislation in reaching these decisions. In this respect I should also record, if it be relevant, that there was unchallenged evidence that in point of practice the clientele of HWRA (in view of the nature of its services) included a significantly higher proportion of ethnic minority clients, female clients and clients with disabilities than were found in the Harlow community generally. Indeed, as Ms Seward observes in her witness statement, a reduction in almost any community services is likely disproportionately to affect minority groups.  
  71. I should also record that Mr Wolfe in argument made clear, dispelling a concern that the defendant Council had had, that the claimants raised no challenge to the decision in principle made in September 2008 to put the contract for welfare rights and advice services out to competitive tender.  
  72. Mr Holbrook submitted that Mr Wolfe either had to show that no regard was had to the statutory criteria or that the decision was irrational. Since Mr Wolfe disclaimed the latter, he was, said Mr Holbrook, left with the former. I do not agree with that submission of Mr Holbrook for two reasons. First, the statutes require that the public body has “due regard” to the specified matters; and what is “due” depends on what is proper and appropriate to the circumstances of the case. Therefore, if a challenge is made, the question of due regard requires a review by the court. It is not simply a question of determining whether no regard at all was had to the statutory criteria. Second, if the submission of Mr Holbrook were right it would be contrary to the authorities, which indicate that a tick box approach may not necessarily in any given case give a complete answer. It is true that, as Baker and Brown make clear, how much weight is to be given to the countervailing factors is a matter for the decision maker. But that does not abrogate the obligation on the decision maker in substance first to have regard to the statutory criteria on discrimination.  
  73. For his part Mr Wolfe was, with all respect, rather equivocal as to whether he was saying that this was a “no regard case” or whether it was a “no due regard” case. Ultimately, I think, he submitted both in the alternative.  
  74. I do not think that it can be said that the defendant Council had no regard at all to its statutory duties and the statutory criteria under the discrimination legislation. First, Councillor Carter and Ms Seward both explain in their witness statements that Harlow District Council, as recognised by its members, had and has a strong culture with regard to people who are disadvantaged or disabled. Councillor Carter, for example, confirmed that he himself was well aware of the statutory obligations. Ms Seward says that it was “second nature” for officers within the council to take equality duties and objectives into account in making proposals. In my view, that factor can properly be taken into account, albeit, at the same time, it cannot be determinative. After all, whatever the general culture, there must, as the authorities show, in any individual case be the conscious directing of the mind to the obligations under the discrimination legislation before a relevant decision is made.  
  75. But the second point is that the adopted reports placed before the Policy and Resources Committee show, to my way of thinking, that such issues were before the Committee. Thus to repeat, by way of example, in the report to the Committee of 25 September 2008 there were set out references to the implications of the proposals under the heading “Social inclusion” and “Equal opportunities”. In point of substance, as it seems to me and accepting Mr Holbrook’s submission on this, the reference to social inclusion and equal opportunities and the body of the text under those headings and in particular the reference to those “vulnerable to discrimination” is sufficient to fulfil the two common criteria for the three statutes. It is true that the discrimination disability legislation had further criteria, but in substance, in my view, this suffices in terms of at least some regard being had to them. The wording (albeit as Mr Holbrook noted not being in identical form and therefore not being a standard form) was further reflected in the report to the Committee on 18 December 2008: which report was noted by the Committee.  
  76. I therefore reject the submission that the defendant Council had no regard at all to the statutory duties. But was there “due regard”? That, of course, is what the statutes require.  
  77. It is right that there were a number of countervailing factors which the Council could properly give weight to in reaching the ultimate decisions that it did reach. These are summarised in Ms Seward’s witness statement, in broad terms are reflected in the contemporaneous minutes and were amplified by Mr Holbrook in argument. They are in essence these. First, the welfare rights and advice services were being reduced, not terminated. Second, some, although not all, aspects of the former service could to some extent be covered by the in-house services provided by the Council at a cost of some £400,000. Third, all cuts in community services would have an impact on the disadvantaged. In the present case, moreover, these were discretionary funded services and services not directed specifically at specific disadvantaged groupings. Fourth, this service, relatively at least, had been insulated from prior cuts unlike other aspects of other discretionary services. Not to make this cut, moreover, would potentially also turn it into some other disadvantaged group’s cut. Further, by comparison with other local authorities the defendant’s expenditure on such discretionary services had been relatively high. Fifth, the Council was under enormous financial pressure and to achieve its policy of a balanced budget painful cuts were necessary, with priority being given to services rendered under statutory obligations. It was also pointed out by Ms Seward in her witness statement that the new contract to be entered into after conclusion of the tender process would focus on the three core areas of welfare benefits, homelessness and debt, being the services most likely to be needed by minority groups.  
  78. Those are powerful points and no doubt are points which Mr Wolfe had in mind in accepting that a decision to reduce the grant to £100,000 could not of itself be styled irrational. But Mr Wolfe’s answer, stripped of rhetoric, was relatively simple. These factors, he said, are countervailing factors which could lawfully be taken into account by the decision maker provided (emphasis added) the factor of the statutory duties with regard to discrimination had itself been duly regarded. Quite simply on the evidence, as he submitted, that factor had not been. Thus, as he submitted, the issue was not simply one of the weight to be given to the countervailing factors but whether due regard was as a precondition given to the statutory criteria for the purposes of making the decision.  
  79. I have come to the conclusion that in the circumstances of this case that particular submission is well founded.  
  80. The statute sets a clear and unqualified requirement which must be met as a precondition for valid decision making in a context such as the present. It is plain, nevertheless, as I have held, that some regard was had by the defendant Council to the statutory requirements. My difficulty is this. The Policy and Resources Committee on 25 September 2008 had tasked the Working Group to recommend a budget to the Committee for the provision of welfare rights and advice services. As the report had said, all was dependent on the budget reached in terms of assessing risks and downsides. Then, on 8 December 2008 the Working Group had resolved, however, that owing to insufficient information a budget could not be recommended to the Policy and Resources Committee. Yet on 18 December 2008 the Policy and Resources Committee resolved in the absence of any recommended budget to invite tenders up to £100,000 per annum, up to £150,000 per annum, up to £200,000 per annum and up to £250,000 per annum, connoting a potential cut of somewhere between 50 per cent and 80 per cent of the budget previously set.  
  81. There is nothing to show that at that stage due regard was had to the statutory criteria in this context. Mr Holbrook pressed me with the proposition that this was a reduction in services and not a termination of services. As it seems to me a proposed reduction of 50 per cent against a previous budget of £500,000 is a very big thing. There might be an argument that it can be inferred from the Implications set out in the report that regard was had to the statutory duties and that at least justified a decision to reduce by 50 per cent. But even if that was so, the invitations to tender resolved upon also included an invitation of up to £100,000 per annum. That is a potential reduction of as much as 80 per cent, a step change from even a possible reduction of 50 per cent. There is nothing to show that any due consideration of the statutory criteria in respect of a reduction of that order, that is to say 80 per cent, was given. It was, in effect, all treated as one.  
  82. It might well, all the same, fairly be said that this resolution of 18 December 2008 was, as it were, an indicative resolution, leaving it to the next meeting to decide on the ultimate reduction figure. I would accept that if at that next meeting of the Committee, consciously applying its mind to the issue, there had been due regard given to the statutory duties concerning discrimination in deciding which tender invitation to approve that could not then successfully be impeached.  
  83. Unfortunately, as I find on the evidence, that did not happen at the meeting of 12 February 2009. The report to the Policy and Resources Committee of 12 February 2009 included again implications under the headings “Social inclusion and equal opportunities”. But these were not in the like terms as before. On “Social inclusion” the comments were in terms directly solely at appendix J, not, for example, at the recommendations as set out in appendix C2, which included the proposed cut for welfare and rights services to £100,000 per annum, a reduction of 80 per cent, the maximum of the option previously indicated. Further, under the heading “Equal opportunities” it was commented “none specific” with regard to implications: and the only comment thereafter which was offered was with regard to appendix J not appendix C.  
  84. In my view on this evidence, taking the position as it was before the Committee on 18 December 2008 with the position as it was before the Committee on 12 February 2009, no due regard was had to the statutory duties in reaching the decision which was eventually reached on 12 February 2009. The generalised evidence of Councillor Carter and Ms Seward cannot displace this. As Mr Wolfe submitted, general regard to issues of equality is not the same as having specific regard, by way of conscious approach, to the statutory criteria.  
  85. I am well aware that it is substance not form which counts here. Further, councillors have a difficult enough task as it is without legalistic hurdles being set for them at every stage. But, first, in point of form the defendant Council is not much assisted here and it must not be overlooked that form very often can reflect the substance. Indeed, that is precisely why it is said to be good practice to make specific reference to the statutory criteria. But second in point of substance there is also a deficiency. It is not enough, in my view, in a context such as the present, to apply the same generalised consideration without differentiation between prospective cuts of 50 per cent and prospective cuts of 80 per cent of a budget previously set at £500,000. The discrimination statutes are clear in their requirement that “due regard” in making a relevant decision be had to the objectives specified. I conclude on the evidence in this case that due regard was not had to those in respect of the decision ultimately reached. It might possibly be said that on that approach then at least not all aspects of the decision of 18 December 2008 could be successfully challenged, even if that of 12 February 2009 could be. But Mr Holbrook has not made any such suggestion. In any event, as it seems to me, as a matter of overall reality the two resolutions of 18 December and 12 February should for these purposes I think be taken together.  
  86. Finally, I do have to ask myself whether I should in my discretion grant relief. Occasionally the Administrative Court will refuse to grant relief on the footing that, notwithstanding some flaw in the process, the decision would inevitably have been the same. I cannot so conclude here. Whilst it is perhaps difficult to think that the Policy and Resources Committee would not still resolve on a substantial cut in the discretionary budget for welfare rights and advice services — although of course it still remains a matter for the Council by their Committee — it may be (and I certainly say no more than that) that it would be resolved not to impose a cut of the kind reducing the amount to £100,000 thus far decided on: although, I repeat, it is accepted on behalf of the claimants that a decision to reduce to a budget of £100,000 per annum cannot of itself be said to be irrational. But be that as it may, it is the duty of the Council to have due regard to the criteria set out in the discrimination legislation. Declaratory relief is not, I think, necessary here, but in the circumstances I will grant permission. Having done that, I will quash the two decisions of 18 December 2008 and 12 February 2009 insofar as they relate to reducing the budget for welfare rights and advice services. The matter will thus have to be reconsidered by the defendant Council and no doubt it will do so expeditiously.  
  87. I will hear counsel now as to any consequential matters.  
  88. MR JUSTICE DAVIS: Miss Hetherington.  
  89. MISS HETHERINGTON: My Lord, could I just have one moment?  
  90. MR JUSTICE DAVIS: Of course.  

    (Pause)

  91. MISS HETHERINGTON: Thank you, my Lord. We do seek our costs of the claim.  
  92. MR JUSTICE DAVIS: You have by no means succeeded on every point put forward. You have lost of some and they took up time.  
  93. MISS HETHERINGTON: My Lord, I accept that. Obviously I was not here —  
  94. MR JUSTICE DAVIS: No, but I was and I have a pretty good idea of what happened. Anyway, you say in principle you should have if not all then a good part of your costs.  
  95. MISS HETHERINGTON: Yes, my Lord, and I would make the point, albeit from my reading of the papers rather than my attendance here on Friday, that to at least some extent the points did overlap and so the time taken in respect of the — what might be called the subservient points may well have informed your decision and overall understanding of the case in relation to the key ground. I think also we need, in any event, detailed assessment of our costs for the purposes of Community Legal Services Funding. Thank you, my Lord.  
  96. MR JUSTICE DAVIS: Yes.  
  97. MR HOLBROOK: My Lord, on the question of costs you have pointed out that the claimants have not succeeded on all grounds. I do submit that those grounds that they did take and on which they haven’t succeeded did take up a lot of not just the court’s time but also the local authority’s in preparing its response.  
  98. I should also say that although you have agreed in substance with the allegation that the local authority did not properly consider its equality duties, I would submit that you have put a rather different emphasis on it from the argument that was advanced before you.  
  99. MR JUSTICE DAVIS: I think Mr Wolfe went to quite an extreme, yes, in some of his submissions which I certainly have not accepted.  
  100. MR HOLBROOK: Indeed. My Lord, in the light of that I would say it is appropriate that there should either be no order as to costs or that the claimant should only get a proportion and I would say no more than that 50 per cent. I do not disagree with them having a detailed assessment. My Lord, there are further matters.  
  101. MR JUSTICE DAVIS: I will deal with costs first.  
  102. On the question of costs the claimants have in substance succeeded and will obtain relief. Nevertheless there were matters which were advanced which did not succeed and on some of the grounds advanced they should not only bear their own costs of but indeed notionally should be responsible for the Council’s costs. So off-setting the matter, and I think having a good idea of what this case involved, I will award the claimant two-thirds of its cost of these proceedings. They will be assessed on the standard basis and there will be the appropriate kind of legal representation order for the claimant’s costs.  
  103. MR HOLBROOK: My Lord, the other matter is the question of permission to appeal. This is clearly a judgment that will have implications not just for this Council but for many other councils who are seeking to discharge their tasks. I do submit that as a matter of public importance it would be appropriate for the Court of Appeal to look at this —  
  104. MR JUSTICE DAVIS: The law here is relatively settled. It is just what happened here on the facts and in particular what happened leading up to 12 February. That has really been decisive here, at least to my way of thinking.  
  105. MR HOLBROOK: It is certainly true that the law is settled in that we know what the law says, but the difficulty comes with all these cases in knowing how that law is to be applied and in particular what it requires in substance. Now, my Lord, you have taken a particular view about what the Acts require in terms of substance and I submit — I can see that on one level that can be seen as an issue of fact and I submit that in substance —  
  106. MR JUSTICE DAVIS: It’s too stringent.  
  107. MR HOLBROOK: It does go too far and it effectively establishes a principle which it would be appropriate for the Court of Appeal to look at.  
  108. MR JUSTICE DAVIS: Anything to say about that?  
  109. MISS HETHERINGTON: My Lord, unsurprisingly we would resist the application for permission to appeal essentially on the basis that you have just indicated. The law is settled here and has been enunciated very clearly and in great detail in your own judgment which is obviously very carefully considered, but also very particular to the factual situation in this case, and so we don’t see that the grounds for the Court of Appeal to consider this matter are made out.  
  110. MR JUSTICE DAVIS: I will refuse permission to appeal because it does seem to me that this case ultimately has gone off on an assessment of the particular facts and circumstances of the case, the background principles I think by now being reasonably well established. So if the Council does wish to pursue this matter further that should be by leave of the Court of Appeal of appeal itself. I myself I refuse permission.  
  111. Mr Holbrook, we do have the background here that invitations to tender are out, the contract comes to an end at the end of March. Although I don’t think it is a matter for me and I indicated in my judgment that no doubt a fresh decision, in my view, ought to be taken expeditiously, that, of course, is something that is capable of being done expeditiously, isn’t it.  
  112. MR HOLBROOK: In principle I am sure it is.  
  113. MR JUSTICE DAVIS: If the Council chooses to do so. It will also, of course, now be informed as to what in the view of at least this judge it should have at the forefront of its mind, it is knowing that the claimant concede that a decision to go to £100,000 is not of itself irrational.  
  114. MR HOLBROOK: No, indeed. My Lord, I am sure those points will be taken on board.  
  115. MR JUSTICE DAVIS: It is not for me to give lectures here but a capacity here to sort something out relatively quickly exists with legally aided claimants as well. I am not here to represent the rate payers — the council tax payers of Harlow.  
  116. MR HOLBROOK: My Lord, I don’t know if it will make a difference, but it may be helpful for the local authority to get a transcript of your judgment as soon as possible.  
  117. MR JUSTICE DAVIS: I deliberately tried not to speak too fast so that people could make a note. I will try to get it to you as soon as possible. I will try and turn it round myself. It had crossed my mind that the Council might wish to see what I had said. Anything else?  
  118. MR HOLBROOK: Nothing else, my Lord.  
  119. MR JUSTICE DAVIS: Thank very much and thank you for attending today and thank you, Mr Holbrook.

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