COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT
SIR MICHAEL HARRISON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
LORD JUSTICE RIX
| The Queen on the application of
(1) DEBORAH DOMB
(2) DULCE SOBRAL
(3) MOSES BUSHIWA
|Claimants / Appellants
|- and -
|THE LONDON BOROUGH OF HAMMERSMITH AND FULHAM
- and -
THE EQUALITY AND
HUMAN RIGHTS COMMISSION
|Defendant / Respondent
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Mr Tim Kerr QC, Miss Holly Stout (instructed by London Borough of Hammersmith and Fulham) for the Defendant / Respondent
Ms Karon Monaghan QC (instructed by The Equality and Human Rights Commission) for the Intervener
Hearing dates : Monday 18th May 2009
Crown Copyright ©
Lord Justice Rix :
"Having therefore considered the various points raised on behalf of the claimants in relation to this part of the claim, my conclusion is that, although there are some aspects of the Council's consideration which can justly be criticised, when the exercise is considered as a whole it cannot be said that the Council did not have "due regard" to its general equality duties. In my view, the Council did in substance, not just in form, have due regard to eliminate unlawful discrimination and to promote equality of opportunity in relation to the relevant equality duties in this case."
The background to the decision
"The MTFS Process in Community Services
10.2 Overall the Community Services budget will increase from £74.550m to £78.357m an increase of £3.807m. The 2008/09 MTFS process will result in a budget increase for Adult Social Care services of £662k above the 2007/08 base level, excluding any transfer of services and central item movements…
Growth and Efficiency Proposals
10.4 The growth being allocated to adult social care provision in this budget represents the biggest investment of additional resources in any particular service area within the Council. This reflects the much publicised national trend of higher costs in adult social care. Due to increasing numbers of clients, with increasingly complex needs, the costs of maintaining the levels of service currently provided by the Council, which has once again achieved the highest possible score of three stars under the Commission for Social Care Inspection regime, are projected to climb significantly over the next three years."
"47…The consultation included a questionnaire and 30 consultation events. A Charging Reference Group acted as a reference point for the consultation. That group consisted of Hammersmith and Fulham Action on Disability (a local voluntary organisation which provides services and campaigns for people with disabilities), the Hammersmith and Fulham Disability Forum (an action group of service users and residents), the Hammersmith and Fulham Better Government Consultative Forum for older and disabled people, and Hammersmith and Fulham Mencap (a voluntary organisation for people with learning disabilities). Views were sought from a large number of present and prospective service users. The Council offered to consult the Hammersmith and Fulham Coalition Against Cuts, with whom the claimants are associated, but that body did not wish to be associated because it disagreed with charging in principle. Each of the three claimants were sent consultation questionnaires and the third claimant attended the consultation meeting with the Disability Forum where he made his views known."
The statutory background (1): HASSASSAA 1983
The statutory background (2): the equality duties
"(1) 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."
The race equality duties came into force in April 2001.
"(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 person's 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."
For present purposes, Mr Wolfe highlights the duty under section 49A(1)(c) as that for which the Council has failed to have had due regard.
"(1) A public authority shall in carrying out its functions have due regard to the need –
(a) to eliminate unlawful discrimination and harassment;
(b) to promote equality of opportunity between men and women."
"A Scheme shall include a statement of –
(a) the ways in which such disabled people have been involved in its development;
(b) that authority's methods for assessing the impact of its policies and practices, or the likely impact of its proposed policies and practices, on equality for disabled persons;
(c) the steps which that authority proposes to take towards the fulfilment of its section 49A(1) duty;
(d) that authority's arrangements for gathering information on its policies and practices on disabled persons…"
"3.32 Impact assessment is not an end in itself but is merely the process which an authority will go through in order to identify and act on the need to modify policies and practices to have better regard to the need to promote disability equality."
The impact assessment
"A decision to introduce home care charging would affect current and prospective home care service users over 18 years regardless of age, gender, disability or impairment, ethnic origin, sexuality or belief system.
In particular, current service users who would be eligible for home care charging would be affected. At the time of the consultation there were approximately 1800 home care service users although this figure inevitable fluctuates slightly over time, of whom an estimated 600 would be eligible for charging.
Such a decision would affect informal carers similarly, where they currently care for someone who is in receipt of home care services, where they might in future do so, or where they receive home care services in their own right."
"If the Council introduces home care charging the princip[al] planned outcome is the continued ability of the Council to meet the population's adult social care needs at the current threshold for services. In the light of concerns regarding the quality of home care provision raised during the consultation, a review will be undertaken of the quality assurance mechanisms for home care services including a review of the information given to home care service users regarding standards of care. This review will proceed regardless of the Cabinet decision on home care charging."
"There is a risk that Cabinet could decide not to introduce a home care charging policy."
The primary answer given was as follows:
"The key positive impact for disadvantaged groups would be the continued ability of the Council to meet the population's growing adult social care needs up to and including 2010/2011 at the current threshold for services."
"A decision to introduce a home care charging policy would have a negative impact on those current and prospective service users who would be eligible to pay and on informal carers who support service users who would be eligible to pay. In particular, a home care charging policy would have a negative impact on those service users whose income only just exceeds the charging threshold as set down in the Fairer Charging Guidance.
The Council has a legal obligation to provide services to meet assessed need regardless of service users' ability to pay. Despite this, some people might be reluctant to request or accept home care services even where services are to meet an assessed need above the eligibility threshold because they feel they are unable to afford home care charges even where they have been assessed as eligible for charging.
These potentially adverse impacts would not be related to age, gender, disability or impairment, ethnic origin, sexuality or belief system. These impacts would mirror the known profile of home care service users. Therefore there would be no group for whom a home care charging policy as proposed would have a disproportionately adverse impact.
The largest single service user groups that questionnaire respondents thought would be most affected were people who were frail and over 65 (51% responses) and people with a physical disability (50% responses). A considerable number of questionnaire respondents thought home care charging would affect everyone equally (44% responses). This was consistent with consultation event outcomes. There was no correlation between race, disability, gender, age or belief system groups and the consultation questionnaire outcomes. Home care charging would not have a differential impact on sexual orientation."
• The Council monitors the take up of home care by ethnic group.
• As of Council data produced May 2nd 2008, some ethnic backgrounds are highly represented within home care service users. In particular, 9.41% of the local population is Black or Black British whereas 16.35% of home care users are Black or Black British. Similarly, 4.04% of the local population is Asian or Asian British whereas 5.55% of home care users are Asian or Asian British.
• The 2004 Housing Needs survey sets out the distribution of average annual gross household income (including non housing benefits) and indicates a significantly lower mean and median average gross annual income for people of Asian and black ethnic backgrounds than white.
• Mitigating actions would need to take this into account."
• As of Council data produced May 2nd 2008, more women than men receive home care. This is probably related to the longer average life expectancy of women compared to men. As such, women would be more affected were home care charging introduced, but not disproportionately so."
"The intended positive impact of the decision to charge for home care services would be the continued ability of the Council to meet the population's growing adult social care needs up to and including 2010/2011 at the current threshold for services. Therefore, a home care charging policy would ensure that the most vulnerable people continued to have access to and benefit from the services that they need.
Furthermore a number of specific actions to mitigate against the impact of a decision to charge for home care services have been identified through the home care charging consultation process and through the equalities impact assessment."
There then followed details of five identified actions which related to income maximisation, financial assessments, training and development, home care quality, and information and communication. The financial assessments needed to be "simple, non burdensome, focused on self assessment". "Home care quality" picked up a point that had been made in consultation about the questionable quality of the services provided. An information and communication plan would be devised inter alia to address the needs of particular groups within the users.
"• As of Council data produced May 2nd 2008, 1,113 or 64% of home care users are female and 636 or 36% are male.
• This is compared to the local population where 71,259 or 51% of people are female and 69,699 or 49% are male.
• Therefore, it is probable that more women would be affected were home charging introduced, but not disproportionately more."
"5.1 The Fairer Charging Guidance is limited in its application only to those in receipt of home care. Therefore only disabled people would be affected by a home care charging policy as only disabled people in the broadest sense are in receipt of home care.
5.2 Within adult social care the alternative to charging which would have a similar financial impact would be to raise the eligibility threshold and so provide services to fewer service users. The consultation specifically addressed this to enable members to balance the impact of either change on disabled people. Questionnaire responses on this issue were 45% in agreement with the approach of pursuing a home care charging policy as opposed to raising the threshold for social care service. 30% disagreed with this approach. The remainder expressed no view.
5.3 Paragraph 2.35 of the Statutory Code of Practice requires the Council to determine whether or not the consultation was relevant to disabled people. Members are advised that the home care charging consultation was extremely relevant to disabled people. Paragraph 2.36 of the Statutory Code of Practice requires the Council to determine how proportionately affected disabled people would be by such a policy. Members are advised that this policy affects only people who are disabled in the broadest sense and therefore members must give full consideration as to how a care home charging policy would affect disabled people.
5.4 The Fairer Charging Guidance ensures that service users are charged only an amount they can afford to pay and in many cases this will result in no charge. The assessment of a person's ability to pay is completely distinct from the assessment of need for services so disabled people should not receive fewer services as a result of this proposed policy. However, it is likely to be the case that a number of service users will choose to purchase their care from private providers especially where only domestic support is required as their costs may be less than the Council's charge.
5.5 An equalities impact assessment was undertaken by the charging reference group. The reference group consisted of representatives from the Disability Forum, Hammersmith and Fulham Action on Disability, Better Government and Mencap as well as officers of the Council. Key actions agreed by the group included…"
and the same five key actions as were addressed in the PEIA as "specific actions to mitigate" were listed.
"Offers to consult…were declined. The Coalition have supplied information pertaining to their views on the home care charging proposal and these have been attached (Appendix B). The Coalition is in principle opposed to charging."
Appendix B contained the Coalition's campaigning leaflet. Among the points there made was that charging did not "promote disabled and older people's equality and ability to be involved in life as equal citizens". Appendix B also contained other material from the consultation, including a collection of responses to the consultation question: "Is there anything further the council could do to promote equality of opportunity between disabled people and other people with regard to a proposed charging policy?" Among the answers were many which said, in one form or another, that there should be no charging. Further questions to which the responses were given were: "If you do not agree that the council should charge for home care, how else do you think that the council could make sure services were provided within the limits of the resources available?" Among the suggestions here were such as "Put up Council Tax" (a common theme), "Bring in Sunday parking fees" and "Cut back on wasteful expenditure".
"8.6 Legal Services advised at a meeting with lead officers for the Community Services Department on 28 January 2008. That meeting was convened specifically to consider the s49A duty and how best to take it into account throughout the consultation period.
8.7 The obligations under this duty were taken into account during the consultation period. The obligations under this duty must also be taken into account when this report proceeds to Cabinet for a decision and a decision is made.
8.8 In the case of R (on the application of Priti Hansra Chavda etc) v Harrow an application for judicial review was successfully brought against Harrow in respect of Harrow's decision to amend its eligibility criteria and to restrict adult social care services to those with critical needs. This was on the basis that the decision makers did not sufficiently have their attention drawn to the seriousness and extent of their duties owed under the Disability Discrimination Act 2005.
8.9. The Disability Rights Commission's statutory code of practice states at paragraph 2.37 that "It will not always be possible for authorities to adopt the course of action which will best promote disability equality but public authorities must ensure that they have due regard to the requirement to promote disability equality alongside other competing requirements.""
Mr Wolfe complains that no reference at all was there made to the need also to have regard to the racial and gender equality duties under the RRA 1976 and the SDA 1975.
The positive duty: Mr Wolfe's main point
"The judge erred in holding that the Council had properly discharged its equality duties when it considered impacts on the protected groups on the basis that it was faced with a choice between charging users and cutting eligibility such that it evaluated the impact by reference to relative impacts of that apparent choice. Such an approach would only be permissible if the prior budget decision (which thus left the choice in question) had itself considered the impact on the protected groups."
"A Report premised on the inevitability of a specific outcome cannot meet the obligation to have "due regard" to the equality objectives in the Duty at least without identifying the alternatives (which here, presumably, included not adopting the preliminary budgetary decision on the size of the adult social services budget; shifting money from other parts of the social services budget; obtaining new money through, inter alia, borrowing it by revenue increasing measures – for example, increases in the Community Charge [sc Council Tax] – to address concerns over future anticipated need."
"68…He submitted that the PEIA was perverse in concluding that there would be a positive impact from charging arising from the consequential ability to maintain the current eligibility threshold for services because, he said, it was based on the false premise that those were the only two choices…The result of restricting the choice to charging or cutting services meant that the absolute impact of the proposal to charge had not been considered."
"I am not persuaded that the description of the adult care service in the budget as at January 2008 as being an area at risk affects the position. It seems to me perfectly reasonable to consider this aspect within the confines of the adult care service budget and to conclude as at June 2008 that there were only two alternatives to achieve the required savings – charging or raising the eligibility threshold. That does not seem to me to be a false premise. Although it means that the absolute impact of charging is not assessed, it is a realistic exercise in the light of the alternatives available."
The detailed grounds concerning racial and gender equality duties
"The above passage is not included in the key decision report. However, as I have explained this is because I had concluded, in conjunction with the user groups with whom I worked on the PEIA, that the introduction of charging would not have a disproportionate effect on any particular racial group. Further, as stated below, I knew from the 2004 Housing Needs Survey of this borough that there is a significantly lower mean and median average annual gross income for people of Asian and black and ethnic backgrounds than white. I believe that people from ethnic minorities are therefore likely to be less likely to be in receipt of chargeable income. There was certainly no reason to believe that people from ethnic minorities would be more likely to be charged. The equalities assessment point regarding "mitigating actions would need to take this into account" in section (a) on race is intended to ensure that the implementation group take this into account in their information and communication plan. I remain firmly of this view."
"I believe that the older female users, although greater in number than older male service users, are also likely to have a lower income. My thinking therefore was that there was no reason to believe that people from ethnic minorities or women would be more likely to be charged than men. It was not realistic to undertake the kind of research necessary which would establish the profile of the people who would actually be charged. What was clear was that what the group of people who would be charged had in common was that they would all be disabled people. We therefore concentrated on the impact on disabled people."
In my judgment that is not unreasonable or perverse.
Lord Justice Sedley :
Lord Clarke of Stone-Cum-Ebony M.R. :