Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345

6 November 2013

Disability - Public Sector Equality Duty

In December 2012, following a consultation, the Minister for Disabled People announced a decision that the Independent Living Fund (ILF) would close in 2015 and that from that point the local authorities, in line with their statutory duties, will have sole responsibility for meeting the eligible care needs of present ILF users. This decision would have had a grave impact on the ability of ILF users to lead independent lives.

Stuart Bracking and four other severely disabled people who used the ILF made an application for judicial review on the grounds that the equality impact assessment (EIA) presented to the Minister had provided an inadequate base from which she could discharge the PSED. Their application was rejected in the Administrative Court.

They (the Appellants) then appealed to the Court of Appeal on the grounds that:

I. The Minister had inadequate information from her officials as to the true impact of the proposals on persons such as the Appellants;

II. There was not sufficient done to ensure that the potential risk to such persons were integral to the formulation of the policy;

III. and that there was not a conscious directing of the mind to the statutory criteria over and above a merely general regard to equality issues.

The Court of Appeal held:

I. Considerations of equality of opportunity (where they arise) must be placed at the centre of formulation of policy by all public authorities, side by side with all other pressing circumstances of whatever magnitude. For this reason advanced consideration must be given to the requirements of the PSED and they must form an integral part of the mechanisms of government. If a decision is reached without due regard to the PSED then it is an unlawful decision.

II. There was a failure to have “due regard” to the specific requirements of the Act in reaching the decision that is under attack. Beyond one reference in the EIA to the Equality Act and one short passage in the witness evidence, there was nothing to demonstrate a focus on the requirements of the PSED.

The witness statement referred to states:

“However, in order to comply with our public sector equality duty any decision you take must be informed by an Equality Impact Assessment. To ensure we do not increase the likelihood of a successful claim it is important that you consider the Equality Impact Assessment and the Impact Assessment before making a decision on the future of the ILF.”

This was not considered to be sufficient evidence of the Minister having had “due regard”

III. There was just sufficient evidence to draw the inference that the Minister had properly appreciated the full impact of the decision on those most adversely affected. However, there was no material from which one could infer that the Minister had properly appreciated and addressed the full scope and import of the matters, which she was obliged to consider pursuant to the PSED. A vague awareness by the Minister that she owed legal duties to the disabled did not suffice; nor was it enough for her officials simply to have alerted her to the obligation to have regard to the matters identified in the EIA and the IA. They had not identified her legal obligations. It was far from obvious that she would have had a clear understanding of her legal duties under the Equality Act.

Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, Equality Law Reports, Michael Rubenstein Publishing Ltd, [2014] EqLR 60-75.