QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF HAJRULA||Claimant|
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MR J COPPEL (instructed by the Comptroller & Solicitor, The City of London Corporation) appeared on behalf of the Defendant
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"It was suggested to the Executive that the review covers the following issues: the scope for repatriating current areas of activities from the existing grants programme to boroughs and sub-regional scope groupings, the scope for a residual London-wide grants programme together with budget and priorities for this, and the timetable and processes to achieve change."
"(a) those where there is a strong argument for services to be carried out at a London-wide level where it is unlikely that work could reasonably be undertaken at a local level;
(b) those which could be undertaken by a group of authorities, perhaps at a sub-regional level, but where it would be difficult or possibly unrealistic to carry out at a local level.
(c) those which essentially appear to be local, but are currently commissioned on a pan-London basis for one or more of the following reasons:
(i) economies of scale.
(ii) cross-borough pattern of service users.
(iii) services uneconomic at single borough level.
(iv) services where a common and/or consistent approach are of key importance.
The ability of individual boroughs to commission these services economically at the borough level could be the significant factor in determining whether these services will continue to either viable or remain a priority at a local level."
At paragraph 17 it said this:
"This is of course only one way to address the issue of repatriation and is just an illustration based on the existing programme, leaving open the question of scale of and priorities for any future London-wide activity. However, the analysis when completed does provide a starting point for any future consideration and public consultation before decisions are made in November and December."
"However members decide they wish to progress the review, the legal advice is that consultation with the third sector and in particular those organisations currently commissioned is required. This is not just to ensure that consultation is compliant with the terms of the compact, but also because given the nature of the services funded by the Grants Committee and the target clients groups it is likely that changes in priorities for commissioning and/or the way they are commissioned, (London-wide, local, et cetera) will have an impact on particular equality streams. Consequently, qualities impact assessment will be necessary not just in terms of services that continue to be commissioned at London Councils, but also for those that will then pass to boroughs for them to prioritise and commission."
"as you will have already heard, London Councils has announced that a review is to be conducted to look at the future role and scope of the London Boroughs Grant Scheme...the principal reason for this exercise is to establish the degree to which currently commissioned services should now more appropriately be commissioned and delivered at local level and is consequent to the increasing devolution of powers and services by Government to the local level. It is anticipated that this will lead to a significant repatriation of the programme to boroughs to be spent on locally determined priorities. A further factor is the anticipated cuts in public sector spending which are expected to have a substantial impact on services from April 2011 onwards. Boroughs may well therefore not be in a position to contribute as much as previously to the grants budget and London Councils will need to take a view on priorities within spending that remains within the grants programme...all of the services commissioned by the Grants Committee were for a period of four years in principle subject to satisfactory delivery of those services and the availability of the resources to meet the costs. Because of the uncertainties caused by the review and the forthcoming financial position in 2011/12, the Committee is therefore unable to guarantee any funding beyond 31 March 2011."
"I am pleased to advise you that the London Council Grants Committee at its meeting on 10 February 2010 agreed to renew funding to your organisation for a further 14 months (1 May 2010 to 30 June 2011 - 14 months)."
"3.2. we are particularly interested in your views on any equalities impacts arising from the proposed changes to the Grant Scheme. Please reflect your views on equalities considerations throughout the response form.
3.3. section 3 of the consultation seeks the respondent's views on the potential recharacterisation of services for funding purposes. There are currently 69 services funded by the London Council's Grants Scheme. Each service has been characterised as being either a London-wide service, category A; a service that is delivered across more than one London Borough, category B; or a local service which could be commissioned and delivered within a single borough boundary, category C."
It then went to on amplify the criteria which had informed the choice of category.
"what monitoring of the impact of these potential cuts has been done (on all equality groups)? How will the cuts be reviewed if the impact is deemed negative on equalities groups and how will you mitigate against the negative impact? Please will you send us a copy of your equality scheme and any equality impact assessments that you have carried out to date."
It wrongly predicted that the equality duties by the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995 would be replaced in October 2010 by those imposed by the Equality Act 2010. The latter will not, however, come into force until April 2011.
"Has London Council built in sufficient time to allow groups to respond to the allocation if at the end of the process they remain allocated to a category, the outcome of which is repatriation."
This letter, like most of the respondents' contributions, and in particular that of the RSG, recognised the fact that the reality of the situation was that repatriation was going to mean almost certainly a substantial reduction, if not the complete elimination, of the services hitherto provided.
"Given the nature of the services commissioned by London Councils, equalities are at the very heart of all priority activities that the Grants Committee is currently supporting. Consequently, taking the most appropriate approach to equalities impact assessments is important in determining the way forward. There is a very different situation as regards EIA, where a Grants Programme runs it course and time expires as opposed to the potential situation were the boroughs might not be able to afford to continue current in principle commitments through to their normal timing expiry. Also, the nature of the proposals around the future role of the Grant Scheme does not necessarily mean that there would be cuts in funding and more significantly if that were to happen it would need to be clear where that decision was taken and by whom."
"Whilst on the one hand London Councils could argue that there is a reasonable expectation of a budget in line with previous decisions, we have been on notice since at least March 2010 that this might not be the case, a concern that has grown as the extent of public sector cuts have become clearer. So the decision on how much the boroughs wish to and/or can afford to fund through London Councils' grant scheme is one for boroughs individually, so they must do the EIA. Put another way, London Councils cannot carry out an EIA on any policy which relates to the funding which is going back to boroughs, because the impact cannot be assessed until the boroughs have made their decisions. It is therefore individual boroughs which must carry out an EIA for their areas.
However that should pan out, we did commence work on EIA for a prospective new set of priorities earlier this year, the net product of which was among papers considered by the Grants Executive and the Leaders Executive back in March 2010. We anticipate updating members on this when the Grants Executive meets on 19 October, which will be when the way forward on the scheme begin to take shape."
"The allocation of A B C categorisations were made by officers on the nature of services themselves and where responsibility for the associated services also lies. It was not done to reflect how services are currently commissioned, although you could argue that there is a direct correlation between many of the front line "patterns of provision" services and the "local" category.
The detail of this service by service will be the main focus of discussion by Grants Executive members on 19 October because a clear differentiation into A, B or C is not as straightforward as that and many services are dependent on sub-regional and regional elements."
Those paragraph seem to me to be the closest the defendant ever got to indicating a possibility that some categorisation other than by service heads might in due course be considered by the defendant.
"Ian Redding said that the focus was on who were the key beneficiaries targeted in service delivery, as most had a focus on one or more equality streams. Councillor Colin Campbell said, that although equalities impact assessments were legally necessary, the final decision needed to have regards to the outcome of the assessment, a decision could still be taken. The chair stated that it was important that members did not lose sight of the objective of London Councils' funding."
No doubt that is not a verbatim record, but in my judgment it was clearly a shorthand way of saying that although the defendant has to have regard to the impact on protected groups, in the end it can take a decision based on the financial situation.
"In making decisions in relation to the future role and scope of the Grants Scheme members must have due regard to the need to promote equality of opportunity and eliminate discrimination in relation to gender, disability and race. In relation to disabled people, there is also a duty to have regard to the need to promote positive attitudes towards disabled people and to encourage their participation in public life. The consultation exercise has sought input from affected organisations regarding the role they play in furthering equalities objectives and the results of that consultation are set out in the schedule at appendix 12."
"members must consider the impact on affected groups when making recommendations to the Leaders Committee. For example if your Committee decides to recommend that services categorised as C should be commissioned locally, members should be aware that without a commitment of the individual boroughs to continue the the funding, then the equalities impact of those services not being funded will need to be taken into account."
"There can be no assumption that individual London boroughs would decide to recommission those services at either a local or sub-regional level. There is a potential for adverse impact on a number of equality strands, as indicated with the attached schedules and summarised at the end of this document. There is also the added concern that there will be little time to consider the extent to which any detrimental impact on the equalities could be mitigated... If any commissions are terminated before they naturally expire it will have an effect on equalities strands."
"During this process we are struggling with fairness trying to make it as least divisive and damaging as possible. I am conscious that there is a wide range of opinion regarding the review, which makes it even more difficult to reach a consensus. We are talking about commissions and not about organisations when making this decision. There are two parts to today's discussion: one, the extent to which the scheme is down-sized; two, the transition from the current to the future position."
"When deciding about the future of commissions it is a two hurdle process: one, how would it be best to deliver the work each commission entails - regional, sub-regional, local. We applied this test to all commissions; two, we then looked a the revised statements of priorities to see which commissions fitted these, which means that some commissions might be classed as A but are no longer priorities for the scheme. In order to continue being funded the commissions need to meet both of these criteria... this process is about commissions rather than organisations, and just because an organisation works cross-borough it does not mean that a commission needs to be delivered on a pan-London basis, for example truancy occurs in all boroughs, but it does not mean that it is most appropriately addressed on a pan-London level. In fact it is most appropriate to be addressed on a local level."
"46. Given the nature of the Scheme's focus on addressing disadvantage. It is inevitable that refocusing the scheme's priorities will have an impact on the communities we seek to support. In proposing that the priorities remain within the scheme, members should consider the extent to which they can mitigate any detrimental impact on equalities by focusing on those areas considered most likely to have a positive impact on equalities whilst de-prioritising those that, whilst important, are likely to have a lesser impact in promoting equality and whether to do so would be appropriate in the circumstances."
"• The Principles for the Scheme as set out in paragraph 43.
• The Priorities for the Scheme as set out in paragraph 45.
• The definitions of categories A-London-wide, B-Sub-regional, C-Regional used to determine the future path the services will follow as set out in paragraphs 48 to 50.
• The categorisation of existing services in the A B C categories as set out in appendix 11.
• The services within category A that will no longer fit within the priorities proposed for the future revised Pan-London scheme, also in appendix 11.
• The process of managed change for services within the categories B and C (Option 3 paragraphs 62 to 65) or:
• Terminate funding at 31 March 2010 (Option 1: paragraphs 58 and 59).
• Allow them to continue to time expiry (Option 2: paragraphs 60 and 61).
• The approach to appeals set out in paragraph 68."
"• The principles of the future scheme and the related priority areas as set out in the report. The categorisation of currently commissioned services into A London-wide, B sub-regional, C local in nature categories as proposed in the report.
• The timing of the proposed changes.
• Transitional arrangements to enable the process of change to be properly managed.
• An appeals process was not relevant for organisations affected by the proposed changes."
"First, that consultation must be at a time when the proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third, to which I shall return, that adequate time must be given for consideration and response, and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals."
"There is no general principle to be extracted from the case law as to what kind or amount of consultation is required before delegation, of which consultation is a precondition, can validly be made. But in any context the essence of consultation is the communication of a genuine invitation to give advice and a genuine receipt of that advice. In my view it must go without saying that to achieve consultation sufficient information must be supplied by the consulting to the consulted party to enable it to tender helpful advice. Sufficient time must be given by the consulting to the consulted party to enable it to do that, and sufficient time must be available for such advice to be considered by the consulting party. Sufficient, in that context, does not mean ample, but at least enough to enable the relevant purpose to be fulfilled. By helpful advice, in this context, I mean sufficiently informed and considered information or advice about aspects of the form or substance of the proposals, or their implications for the consulted party, being aspects material to the implementation of the proposal as to which the Secretary of State might not be fully informed or advised and as to which the party consulted might have relevant information or advice to offer."
These are similar statements of principle in R(Capenhurst) v Leicester City Council (2004) 7 CCLR 557 and R v North and East Devon Health Authority, ex parte Coughlan  QB 213.
"263...One of the great social challenges of the day is to ensure equality for all persons in accordance with the law. This challenge is comparatively new because it is only relatively recently that the law has expressly provided for the elimination of discrimination on the grounds of race, gender and certain other grounds.
274. It is the clear purpose of section 71 to require public bodies to whom that provision applies to give advance consideration to issues of race discrimination before making any policy decision that may be affected by them. This is a salutary requirement, and this provision must be seen as an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation. It is not possible to take the view that the Secretary of State's non-compliance with that provision was not a very important matter. In the context of the wider objectives of anti-discrimination legislation, section 71 has a significant role to play. I express the hope that those in government will note this point for the future."
"31. 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.
32. In the context of the present case, the areas of the appellants' lives affected by the inequality of opportunity are of central importance to their well-being and the extent of the inequality of opportunity is substantial. As is clearly stated at para 5 of Circular 01/2006, gypsies and travellers suffer the worst health and education status of any disadvantaged group in England and there is a pressing need to promote equality of opportunity in these areas between gypsies/travellers and the general settled community in order to eliminate the problem. Again as recognised by the Circular, an effective way of achieving this is to reduce the number of unauthorised encampments and developments and increase the number of gypsy and traveller sites in appropriate locations with planning permission."
"For present purposes I take from those summaries in particular the observations that there is no statutory duty to carry out a formal impact assessment; that the duty is to have due regard not to achieve results or to refer in terms to the duty; that due regard does not exclude paying regard to countervailing factors but is "the regard that is appropriate in all the circumstances" that the test of whether a decision maker has had due regard is a test of the substance of the matter, not of mere form box ticking, and that the duty must be performed with vigour and with an open mind and that it is a non-delegable duty."
"(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.
(2) The Secretary of State may by order impose, on such persons falling within Schedule 1A as he considers appropriate, such duties as he considers appropriate for the purpose of ensuring the better performance by those persons of their duties under subsection (1).
"every public authority shall, in carrying out its function, have due regard to -
(a) the need to eliminate unlawful discrimination and victimisation.
(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, and.
(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 of the need to encourage participation by disabled persons in public life."
"(1) a public authority shall in carry out its functions have due regard to the need to.
(a) to eliminate unlawful discrimination, harassment and victimisation and.
(b) to promote equality of opportunity between men and women."
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."
"3.16 To assess the effects of a policy, or the way a function is being carried out, public authorities could ask themselves the following questions.
A. Could the policy or the way the function is carried out have an adverse impact on equality of opportunity for some racial groups? In other words, does it put some racial groups at a disadvantage?
B. Could the policy or the way the function is carried out have an adverse impact on relations between different racial groups?
C. Is the adverse impact, if any, unavoidable? Could it be considered to be unlawful racial discrimination? Can it be justified by the aims and importance of the policy or function? Are there other ways in which the authority's aims can be achieved without causing an adverse impact on some racial groups?
D. Could the adverse impact be reduced by taking particular measures?
E. Is further research or consultation necessary? Would this research be proportionate to the importance of the policy or function? Is it likely to lead to a different outcome?"