| Cap at Band of property plus the measures already outline |
Plus savings if benefit awarded is capped at: |
| |
|
90% |
85% |
80% |
| Band A |
£1,054k |
£2,063k |
£2,568k |
£3,072k |
| Band B |
£774k |
£1,811k |
£2,330k |
|
(5) Under the heading "Vulnerable Groups – Key Issues", council members were told that central government had issued guidance advising local authorities that they had to take into account "existing duties" when designing their LCTS schemes, including under the Equality Act 2010 and stated:
- "In terms of 'equality', the guidance references 'the disabled' and the requirement to 'make fair financial decisions'."
(6) Under the heading "Vulnerable Groups – Options", council members were told:
- "Whilst the proposed scheme will need to consider the 'vulnerable groups' as referenced by CLG, this will need balancing against the requirement to deliver the required reduction in overall levels of support.
- "Any additional 'local' protection of certain groups will dilute the overall savings proposals."
- "Equality Impact Assessments will be undertaken in order to minimise the likelihood of any challenges to the scheme
(7) The risks of non-payment attendant on capping were highlighted.
(8) Various case studies were then set out. Case Study 1 reflected the Claimant in this case: a single person on income support living in a Band 'A' receiving 100% CTB currently paying none of his or her £793.15 council tax would, in future, only receive a 80% cap and therefore have to pay £147.83 per annum towards council tax. Case Study 2 showed that a person in a larger property would pay proportionately more.
On 13th August 2012, a similar briefing was given by council officers to Rochdale council members who were members of opposition parties, including Mr Dearnley leader of the Conservative Party.
On 16th August 2012, a 26-page report by council officers was presented to council members at an informal cabinet meeting. The report set out much of the detailed information contained in the 19th July 2012 PowerPoint (see above) but with updated figures based on July 2012. The following points in the report are significant:
(1) The report highlighted that "Government will not prescribe protection for or define vulnerable groups" but reminded council members that councils had to have regard to existing duties including the Equalities Act 2010.
(2) Rochdale had approximately 30% of its households receiving CTB and needed to devise a LCTS scheme which would achieve a minimum of £2.4 million in savings.
(3) The report explored options for a LCTS scheme including capping council tax benefit at Band 'A' or 'B' and set out three options: Option 1 involved a cap at Band 'A'; Option 2 involved a cap at Band 'A' and 'B'. Option 3 was the Government default scheme and involved no cap. The report explained in terms that properties above these bands would receive support but only at Band 'A' or 'B' levels and "vulnerable groups… would have a level of protection" because "current disregards" would continue. "Current disregards" was a reference to exemptions from council tax enjoyed by some vulnerable groups.
(4) The report said that equality impact assessments for Options 1 and 2 with case studies for specific types of claimants would be included at Appendix D.
On 16th August 2012 at an informal cabinet meeting, Mr Sultan Ali, a councillor and cabinet member, asked for further information on the impact of the proposals with reference to the cabinet's equality duties. This was provided on 30th August 2012 (see below).
On 30th August 2012, a further informal meeting of the Rochdale cabinet took place at which council members reviewed the proposals contained in the report of 16th August 2012. In addition, following Mr Ali's request, Council members were also given detailed data and statistics presented in the form of bar-charts and pie-charts showing the financial effect of the proposals on various categories of "Vulnerable groups" at different band levels 'A' to 'G', namely "Disabled customers", "Families", "Lone parents with children under 5", "Customers – no families" and "War widows/ pensioners – working age".
The Report to cabinet dated 17th September 2012
Council officers prepared a further updated report which was presented to council members on 17th September 2012. The report (a) attached an equality impact assessment ("EQIA"), (b) made recommendations regarding the LCTS scheme to be put out for consultation, and (c) made recommendations regarding the nature and timescale of the consultation process. On 17th September 2012, the cabinet met to consider the report and the 8-page EQIA.
The EQIA
The report noted that it was for Council members to decide how best to comply with Rochdale's obligations under the Equality Act 2010. The EQIA was attached at Appendix E. The EQIA stated in relation to the LCTS:
"Our approach has been to develop a scheme that is fair to all which also takes into account the reality of the funding cut. Wherever possible we are looking to protect the vulnerable and those who are least able to afford to pay more Council Tax. The average reduction in benefit will be between £3.98 - £7.39 per week, those people in higher Council Tax bands will pay proportionately more."
The following points should be noted about the EQIA:
(1) The EQIA explained that using data and newly-acquired software the impact of the proposals had been modelled to show the effect on people "according to their age, disability, family circumstances and level of income" and case studies had been produced to illustrate this.
(2) The EQIA stated that council officers had also undertaken a number of different modelling scenarios which had led to a single preferred model being proposed. However, these other models - which included restricting benefit on Bands 'B' and above – were disregarded "…as they disproportionately affected either people with large families, disabled people, or customers with low incomes" (emphasis added).
(3) The EQIA considered seriatim 11 categories of people with protected characteristics under the following headings: "Race Equality", "Disabled People", "Carers", "Gender", "Older and Younger People", "People who are Socio-Economically Disadvantaged", "Religion or Belief", "Sexual Orientation", "Gender Reassignment", "Pregnant Women or Those on Maternity Leave" and "Marriage or Civil Partnership".
(4) The EQIA recognised data had not been kept in relation to "Race Equality" or "Religion or Belief" because it had not been relevant to the calculation of CTB but went on to state: "Diversity questions would be included within the consultation questionnaire to gather some of this information".
(5) The EQIA pointed out that, in relation to "Disabled people", "Carers" and "Gender", current "disregards" which favoured these categories would be continued.
The EQIA concluded as follows:
"What are the main conclusions of this analysis?
Overall, the only feature of the scheme which could be viewed as impacting on a group with protected characteristics is the need to fully protect pensioners from the changes. There is no discretion as to this prescribed requirement.
To ensure that there is no adverse or disproportionate effect on any group the proposal seeks to mirror as much of what currently exists in the national Council Tax Benefit system into the local Council Tax Support scheme for working age claimants. Different favourable treatment of income and allowances of disabled people and women with children are carried over into our local scheme so it is our view that there is no adverse or disproportionate impact on any of the groups with protected characteristics.
…
To conclude, it is our view that the proposed scheme does not impact on any group with protected characteristics based on current evidence pending the outcome of the consultation."
Single LCTS scheme recommended
The Report dated on 17th September 2012 proposed a single draft LCTS scheme to be put out for consultation. The key features of the proposed scheme were explained as follows:
(1) The LCTS benefit would be capped at the value payable on a Band 'A' property (the lowest value band of property) for those not in a Band 'A' property, or 75% of that value if they were. Thus, a person who lived in a Band 'A' property with a council tax liability of £750 would now pay £187.50 per year (25% of £750). A person in a Band 'C' property with a £1,250 liability would now pay £687.50 (£1,250 less £562.50). The result, in other words, was to increase the burden on those living in larger properties.
(2) The second adult rebate was removed. This rebate had discounted the contribution made to household costs made by another working age adult if they were of low income. That would not now happen.
(3) The level of that assumed contribution by a second adult was also doubled. A second adult living in a home would now, therefore, increase the liability.
(4) An income taper was also extended. This taper had provided that persons over a certain income would pay 20% of the excess. That would now become 30%. Such tapers were rejected as controversial because it was thought they may disincentivise people from earning.
(5) A backdating facility was also removed.
The report also analysed Central Government's offer to pay a transitional grant of £435,000; but it was clear that the funding gap rendered it not a viable option. The report also contrasted the above features with the government's default scheme. The report concluded said that the draft LCTS would save all but £66,000 of the £2.4 million shortfall which Rochdale needed to find.
Recommendations about consultation
The report recommended that the proposed LCTS scheme form the basis of a formal public consultation process, that results of the consultation be reported to the Overview & Scrutiny Committee and the Cabinet in early December and that the final LCTS scheme would be agreed by the full Council on 20th December 2012. The report contained proposals for the consultation process in the light of the DCLG guidance. It recommended a 10-week consultation which would include (i) a questionnaire to be made available on- line and in council buildings, (ii) 'drop in' session for members of the public as well as consultation at 'Township forum' meetings, (iii) a session aimed at council partners and community groups, (iv) promotion of the consultation via media releases, Twitter and council and other websites. Council members were asked to consider whether Rochdale should write to all 17,000 claimants given the substantial postage cost of £11,000.
Public consultation – 20th September to 28th November 2012
Between 20th September and 28th November 2012, a public consultation on the draft proposals was carried out. The consultation documents comprised (i) an overview document, (ii) a letter to all existing council tax benefit claimants of working age, (iii) a questionnaire, and (iv) a 'frequently asked questions' document which also set out details of six case studies. In addition, further steps were taken by Rochdale by way of public consultation using, for example, social media.
Letter to all CTB claimants
Notwithstanding the postage costs, Rochdale did write to all its CTB claimants, including the Claimant, explaining the proposed LCTS scheme and enclosing a questionnaire which set out a series of questions regarding age, gender, ethnicity and asked whether consultees considered they had a disability. The covering letter, which was signed by the Executive Director, explained that the Government would be giving councils less money than before and that Rochdale faced a reduction in funding of approximately £2.4 million for 2013/2014. The letter continued:
"This shortfall means we need to make some difficult decisions about who gets support to pay their council tax and how much they get. …
I am writing to you to ask you to tell us what you think of the changes we are suggesting. As you may be affected by the proposals the council is keen to hear your views."
The letter set out very clearly the main features of the proposals being put forward for working age claimants of CTB including that "all claimants will have to pay at least 25% of their council tax bill" and council tax support would only be paid at the rate for a Band 'A' property. The letter concluded by giving the dates for the 10-week consultation period, namely 20th September 2012 to 28th November 2012, and inviting the addressee to fill in the questionnaire either on-line on the council's website or using the enclosed hard copy.
Feedback and the December Reports
On 6th December 2012, an informal cabinet meeting took place at which council members received initial feedback on the outcomes of the consultation exercise.
On 13th December 2012 a report on the outcomes of the consultation exercise, together with the EQIA, was presented to the Overview and Scrutiny Committee (and subsequently to a Rochdale cabinet meeting on 17th December 2012). An additional report was drawn up for the Overview and Scrutiny meeting on 17th December 2012 and the cabinet meeting on 19th December 2012 which recommended that the Council determined whether or not to accept the transitional grant and whether or not to amend the scheme out for consultation.
At a meeting on 17th December 2012, the cabinet decided that the transitional grant for the LCTS scheme should not be accepted and, instead, the draft local CTR scheme be adopted and referred to the full Council for approval. The default scheme was again considered, but rejected because of the funding gap, and because the draft scheme was more responsive to local issues and, in particular, the fact that Rochdale had a high proportion of CTB claimants who lived in Band 'A' properties.
Decision
The Cabinet reached it decision to adopt the proposed LCTS on 17th December 2012 and prepared a report to the full Council. The report together with the EQIA was presented to the full Council on 19th December when, following questions and debate, Rochdale accepted the recommendations and adopted the scheme.
On 1st February 2013, the Claimant issued proceedings. On 12th February 2013, Rochdale served summary grounds of defence and its evidence. On 15th February 2013, the deadline expired for local councils to apply for transitional grants, subject to Central Government 'case-by-case' extensions.
On 27th February 2013, Rochdale's budget and council tax-setting meeting was fixed to take place. Hence the need for a rolled-up hearing and a speedy decision.
THE LEGISLATION
The national CTB scheme previously operated under s. 131 of the Social Security Contributions and Benefits Act 1992 was abolished by s.33 of the Welfare Reform Act 2012. The requirement for a new local council tax support scheme to be determined by each council tax billing authority was effected by the Local Government Finance Act 2012 which amended the Local Government Finance Act 1992 by inserting a new s.13A and a new Schedule 1A.
The new s.13A(2) of the Local Government Finance Act 1992 provides:
"(2) Each billing authority in England must make a scheme specifying the reductions which are to apply to amounts of council tax payable, in respect of dwellings situated in its area, by—
(a) ) persons whom the authority considers to be in financial need, or
(b) persons in classes consisting of persons whom the authority considers to be, in general, in financial need."
Schedule 1A paragraph 2 provides:
"(1) A scheme must state the classes of persons who are entitled to a reduction under the scheme.
(2) The classes may be determined by reference to, in particular—
(a) the income of any person liable to pay council tax to the authority in respect of any dwelling;
(b) the capital of any such person;
(c) the income and capital of any other person who is resident in the dwelling;
(d) the number of dependants of any person within paragraph (1) or (c);
(e) whether the person has made an application for the reduction."
Schedule 1A paragraph 3 provides:
"(1) Before making a scheme, the authority must (in the following order)—
(a) consult any major precepting authority which has power to issue a precept to it,
(b) publish a draft scheme in such manner as it thinks fit, and
(c) consult such other persons as it considers are likely to have an interest in the operation of the scheme."
Schedule 1A paragraph 4 provides:
"(1) The Secretary of State must by regulations prescribe a scheme ("the default scheme") for the purposes of this paragraph.
(2) The first financial year to which the default scheme relates must be the year beginning with 1 April 2013 (or such other year as is specified in section 10(4) of the Local Government Finance Act 2012).
…
(6) The default scheme is to take effect, in respect of dwellings situated in the area of a billing authority, if the authority fails to make a scheme on or before 31 January 2013 (or such other date as is specified in section 10(4) of the Local Government Finance Act 2012)."
The default scheme is contained in The Council Tax Reduction Scheme (Default Scheme) (England) Regulations (SI 2012/2886) which was enacted under paragraphs 2 and 4 of Schedule 1A. It is broadly similar to the existing CTB scheme. The default scheme is unlikely to be an attractive option to many councils because, where it operates, authorities will have to make good any shortfall in funding.
Central Government ring-fenced and excluded pensioners from these legislative changes by way of a 'carve out'. Accordingly, the new LCTS schemes only concern and affect people of working age.
FIRST GROUND – CONSULTATION
THE PRINCIPLES
Consultation
Where a public body is required to 'consult' there are four basic requirements:
(1) Consultation must be undertaken at a time when proposals are still at a formative stage;
(2) Consultation must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response;
(3) Consultation must give consultees sufficient time to make a response;
(4) Consultation must be conscientiously taken into account when the ultimate decision is taken.
(See Sullivan LJ's summary in Haringey at [12] of Lord Woolf's guidance in R v North & East Devon HA ex p Coughlan [2001] QB 213 [108] approving the approach in R v Brent LBC ex p Gunning (1985) 84 LGR 168).
The analysis is necessarily fact-sensitive. Whether a consultation process has been "fair" will depend on the particular circumstances of the case (per Sullivan LJ in Haringey at [12]).
The following general statement of principle by Lord Woolf in R v North & East Devon HA ex p Coughlan [2001] QB 213 [112] has been oft-cited and approved:
"[The decision-maker's obligation] is to let those with a potential interest in the subject matter know in clear terms what the proposal is, and why it is under consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this."
(see e.g. the Court of Appeal in e.g. R (Forest Heath DC) v. Electoral Commission [2010] PTSR 1227 at [54], The Vale of Glamorgan Council v Lord Chancellor and Secretary of State for Justice [2011] EWHC 1532 (Admin) at [24] and Haringey at [17].)
The following further statements of principle are useful:
(1) First, it is open to a decision-maker to put forward a favoured option, provided his or her mind remains open to the possibility that further information or argument may lead to a different conclusion (Royal Brompton & Harefield NHS Trust v Joint Committee of PCTs [2011] EWHC 2986 (Admin) at [17]).
(2) Second, in other words, a proposal cannot be at a "formative stage" if a decision- maker does not retain an open mind on the issue of principle involved (R (Partingdale Lane Residents Association) v Barnet LBC [2003] EWHC 947 (Admin)).
(3) Third, there is no general principle that a minister entering into a consultation must consult on all the possible alternative ways in which a specific objective might arguably be capable of being achieved. It would make the process of consultation inordinately complex and time-consuming if that were so (per Elias LJ in The Vale of Glamorgan Council (Supra)).
(4) Fourth, consultation is not negotiation. It is a process within which a decision-maker at a formative stage in the decision-making process invites representations on one or more possible courses of action (per Maurice Kay LJ in R (Medway Council) v Secretary of State for Transport [2002] EWHC 2516 at [26]).
(5) Fifth, ultimately it is a matter of fairness and whether there was an adequate opportunity for those involved to express their views and influence the decision maker (R (Smith) v East Kent Hospital NHS Trust [2002] EWHC 2640 (Admin) at [42]).
LB of Haringey case [2013] EWHC 252 (Admin) [2013] EWCA Civ 116
The decision in the judicial review challenge brought recently to the LCTS model adopted by the London Borough of Haringey is instructive. The Haringey LCTS model was simple: it extended the reduction of 20% across all groups equally, which was said to be the "fairest" way of doing things. The judicial review challenge was on the basis of want of proper consultation, in particular (i) a failure to consult about alternative schemes or DCLG's default scheme, and (ii) a failure to re-consult in the light of Central Government's TGS offer. As stated above, the challenge was dismissed by Underhill J and the Court of Appeal. The Court of Appeal gave useful guidance as to the scope and content of the duty to consult in the particular legislative context with which we are concerned, namely the Local Government Finance Act 1992 as amended by the Welfare Reform Act 2012 (see above).
Sullivan LJ explained (at [18]) that, unlike some enactments which may provide for a more "open-textured consultation process", paragraph 3(1) of Schedule 1A prescribes a "sequential process" in which (i) a draft scheme is prepared, and (ii) the Council is then required to consult, not council tax payers as a whole or all of its inhabitants who are in receipt of services, but only "those persons who are likely to have an interest in the operation of the draft scheme". Sullivan LJ also said:
"In this statutory context, fairness does not require the Council to mention other options which it has decided not to incorporate into its published draft scheme; much less does fairness require that the consultation document contain an explanation as to why those options were not incorporated."
Sullivan LJ also made it clear that that even if the statutory scheme had been "less prescriptive and more open-textured", the Court of Appeal would still not have found that the consultation document's failure to mention the other possible ways of meeting the shortfall in Central Government funding rendered the consultation process unfair, not least because, as Underhill J observed at first instance, the three options – namely (a) raising Council Tax, (b) reducing other Council Services or (c) utilising some of the Council's reserves - were all reasonably obvious ways of meeting the shortfall.
ANALYSIS
The Claimant's first ground of challenge, want of proper consultation, was originally advanced on five different bases:
(1) A failure to consult about alternative schemes or DCLG's default scheme, or explain why Rochdale preferred its own draft scheme.
(2) A failure to inform consultees about Central Government's TGS offer and re-consult in the light of it.
(3) A failure properly to provide sufficient information to enable consultees to give an intelligent response or influence the scheme.
(4) A failure to include a comments 'box' in the questionnaire to enable consultees to object generally the proposed draft scheme.
(5) A failure to keep an open mind.
As mentioned above, in the light of the Court of Appeal's decision in Haringey (supra), Ms Monaghan QC recognised she could no longer pursue arguments (1) and (2). This, in truth, left very little of her case on consultation. I deal with arguments (3), (4) and (5) briefly below.
'Insufficient information to consultees'
I reject argument (3), 'insufficient information to consultees'. In my judgment, there was ample information in the consultation letter itself to enable consultees to understand (a) the nature of the financial problem faced by the Council, (b) the details of the draft CTRS scheme which the Council was proposing, and (c) how the proposals would affect working-age claimants such as the Claimant (see above). The consultation letter was admirably clearly drafted. Indeed, in my judgment, it would have been quite inappropriate to burden individual consultees such as the Claimant with unnecessary technical detail and statistics and the interstices of the reasoning and Council reports which had led to the drawing up of the draft scheme. In the words of Lord Woolf, Rochdale let those who have potential interest in the subject matter know in clear terms what the proposal is and why exactly it is under positive consideration, telling them enough to enable them to make an intelligent response.
'No comments box in the questionnaire'
I reject argument (4), 'no comments box in the questionnaire'. The consultation letter openly invited consultees' views: "As a current claimant of council tax benefit the council is now seeking your views on the proposed scheme". The absence of a 'comments box' in the questionnaire did not prevent consultees from setting out their further comments or observations on the scheme in a covering letter (as some did). Ms Monaghan QC relied upon the fact that there was a 'comments box' in the Haringey questionnaire which was filled in and led to the exclusion of disabled people from the Haringey LCTS scheme. It is noteworthy, however, that the Haringey questionnaire formed part of an impersonal consultation document delivered to households in Haringey who were in receipt of CTB. By contrast, all residents in Rochdale in receipt of CTB, including the Claimant, received a letter addressed to them personally and signed by the Executive Director. There was nothing to stop or inhibit them from responding by letter if they so wished.
'Failure to keep an open mind"
I reject argument (5), 'failure to keep an open mind'. This argument is tantamount to a suggestion that Rochdale were merely 'going through the motions' of consulting on their draft scheme and would not have listened to any reasoned argument or evidence yielded by the consultation process. There is no evidence to support a suggestion. Indeed, per contra, the evidence points to council officers and council members keeping an open mind throughout the consultation process and being amenable even to late suggestions. The feedback Report presented to the Overview and Scrutiny Committee meeting on 13th December 2012 noted that 1,168 responses had been received and "the consultation had generated the highest response rate that the council had received for any previous consultation exercise". The Report set out the responses in detail. It is clear that the outcomes of the consultation were conscientiously considered and discussed by the Committee, viz. e.g. particular consideration was given to the desirability of abandoning two elements of the draft local scheme in the light of the consultation responses.
Summary
The mere fact that at all material times (a) council officers gave clear advice to council members based on the fruits of their research and analysis and (b) council members accepted the council officers' recommendations as to e.g. that Option 1 should be put out to consultation, does not mean that the decision-makers had a closed mind. The council officers were merely doing their job. They were making recommendations to Council members on the basis of research and analysis which is, after all, what they are paid to do. The council members were merely doing their public duty, making decisions on the basis of the best advice and information available.
Conclusion on First Ground
In my judgment, it is clear that Rochdale was careful and conscientious in its consultation of those likely to be affected by the draft scheme as required by the legislation. The Claimant's real complaint is that she does not like the impact of the scheme upon her, not that the consultation process was somehow flawed and unfair. It was not. It was perfectly fair.
SECOND GROUND – PUBLIC SECTOR EQUALITY DUTY
The Claimant's second main ground of challenge was that Rochdale had failed to comply with its PSED duties in breach of s. 149 of the Equalities Act 2010.
THE PSED LEGISLATION
Section 149 Equality Act 2010 provides as follows:
"(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
…
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.
(5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a) ) tackle prejudice, and
(b) ) promote understanding.
(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.
(7) ) The relevant protected characteristics are—
age; disability;
gender reassignment; pregnancy and maternity; race;
religion or belief; sex;
sexual orientation."
THE PSED PRINCIPLES
The effect of s. 149 has been to 'mainstream' equality into all public authority decision- making. Compliance with the PSED duty is not merely a technical or procedural matter but is a condition precedent to legality (per Sedley LJ in R(BAPIO Action ) v. SSHD [2007] EWCA Civ 1139 at [3]).
The question in every case is whether the decision-maker has "in substance" had "due regard" to the relevant statutory need (per Dyson LJ in R (Baker) v Secretary of State for Communities and Local Government [2008] EWCA Civ 141 [37]).
The following six general principles can be gleaned from the authorities:
(1) The duty is to have "due regard" to the need to achieve certain goals, not to achieve particular results; due regard is the regard that is "appropriate in all the circumstances".
(2) Regard must also be had to any countervailing factors which it is reasonable to take into account; the weight to given is a matter for the public authority.
(3) The duty is non-delegable: i.e. consistent with the need for conscious attention, the duty cannot be delegated.
(4) The requirement to pay "due regard" is a continuing one and requires a conscious, open-minded engagement before options have been determined.
(5) A failure to make explicit reference to the duty - or even to be aware of it - does not mean it has not been performed.
(6) There is no formal duty to carry out an equality impact assessment ("EQIA") or expressly refer to the duty when complying with it.
(see generally R (Baker) v Secretary of State for Communities and Local Government [2008] EWCA Civ 141 esp. Dyson LJ at [31]-[40]; R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin); R (Domb) v Hammersmith and Fulham LBC [2009] EWCA Civ 941 esp. Rix LJ at [52]; R (Bailey) v London Borough of Brent [2011] EWCA Civ 1586; Kenneth Parker J. in JG and MB v. Lancashire County Council [2011] EWHC 2295 (Admin)).
The following further six particular statements of principle are also useful:
(1) First, a decision-maker is entitled to focus on the main aspects of equality impacts which present themselves for consideration, rather than engaging in a minutely detailed process of inquisition into all possible equality impacts and ramifications of a decision (R (Bailey) v London Borough of Brent [2011] EWCA Civ 1586, per Pill LJ at [77]-[83] and per Davis LJ at [102]).
(2) Second, the risk of adverse equality impacts along a particular dimension has to present itself with a sufficient degree of prominence before it can be said that the "due regard" obligation in section 149 requires the decision-maker to proceed further to examine the possible implications of its decision along that particular dimension (per Sales J in R (S, KF) v Secretary of State for Justice [2012] EqLR 796 at [98]).
(3) Third, the failure to advance particular equality impacts as objections before a decision is taken is capable of being relevant when considering whether due regard was given for the purposes of s. 149 in any particular case (per Davis LJ in Bailey at [90]).
(4) Fourth, the duty to have due regard to the need to "advance" equality of opportunity is concerned with issues of substantive equality and requires a more penetrating consideration that merely asking whether there has been a breach of the principle of non-discrimination (per Dyson LJ in R (Baker) v Secretary of State for the Environment [2008] EWCA (Civ) 141 at [30]).
(5) Fifth, the due evaluation of equality impacts of a particular decision by the decision- maker will only be treated as unlawful where it is "unreasonable or perverse" (see R (Domb) v London Borough of Hammersmith and Fulham [2009] EWCA Civ 941, at [72]; Baker at [34] per Dyson LJ and R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) at [82]).
(6) Sixth, the courts cannot interfere with decisions simply because they would have given greater weight to certain equality factors than the decision-maker (per Elias LJ in R(Hurley) v. Secretary of State for Business, Innovation and Skills [2012] EqR. 4470). The courts must not micro-manage the exercise (per Elias LJ in R(Greenwich Community Law Centre) v. Greenwich LBC [2012] EWCA 496 at [30]).
ANALYSIS
Summary
Ms Monaghan QC aimed a plethora of criticisms at Rochdale's approach to its PSED. I deal with each of these below. But, in my judgment, the Claimant's argument runs counter to the direction of travel of authorities in this area: which is to discourage challenges based upon minute criticisms of EQIAs, or elaborate inquisitions of possible permutations of equality (see Bailey and Brown (supra)). It is not the law that public authorities must set out s.149 verbatim, collect, analyse and record every scrap of data with regard to every single protected group and then analyse each such group seriatim against every limb of s.149, looking at endless permutations and combinations. A sense of proportionality and reality is required. The basic test is simple: whether "in substance… due regard" has been had to the relevant statutory need. This straightforward test should be the touchstone, both for those seeking to fulfil their PSED duties and those seeking to challenge.
In my judgment, a cursory reading of the facts set out above demonstrates the "due regard" test is plainly satisfied in this case. A fair reading of the EQIA alone is enough to dispose of the Claimant's case: it is clear that Rochdale decision-makers considered and conscientiously applied their minds to the equality impacts of the proposed LCTS scheme at the relevant stages. The Court is not in the business of micro-managing decisions. The fact that the Claimant disagrees with the particular impact of the proposals on her is not to the point. The Claimants have not shown that Rochdale's approach to its PSED transgressed any of the relevant six general principles or six particular principles set out above.
I now turn to consider each of the Claimant's particular arguments in turn.
Claimant's criticisms of EQIA
Ms Monaghan QC made a series of mostly nit-picking or unfair criticisms of the EQIA, none of which had any substance.
First, the Claimant argued that the EQIA asserted that available data had enabled an analysis of the impact on people with protected characteristics but did not set out the data relied upon or indicate what the data was. In my view, it is not always necessary or desirable for officials to burden decision-makers with all the data leading to recommendations. This would be to risk information overload and harming the efficacy of the decision-making process. Decision-makers are entitled to trust the analysis and recommendations of officials so long as clearly and logically presented (as in this case). Officials are entitled to trust decision-makers and/or to call for further information or data if they wish (and as took place here - see above).
Second, the Claimant argued that the officials rather than the decision-makers appear to have dismissed various options, viz. (i) capping at Band 'B' and above, (ii) having no restrictions for the band of property, and (iii) having higher reductions for benefit customers on the grounds that they disproportionately affected either "people with large families, disabled people, or customers on low incomes". In my view, however, this was simply council officials doing their job and explaining why various options were not considered appropriate or attractive. They were, moreover, doing exactly what the PSED legislation required, viz. analysing options through the prism of potential discrimination
Third, the Claimant argued that, the recommendation of council officials that there should be a cap only on Band 'A' properties adversely affected those in larger properties, i.e. with larger families and potentially disabled people with in-house carers. In my view, however, there is no logic in an argument which suggests that because a benefit has been given to one category of protected persons, this has somehow adversely affected other protected persons because they have not got the same benefit.
Fourth, the Claimant submitted that the EQIA prepared by officials proceeded on the basis that there was no adverse or disproportionate effect on any protected group. In my view, however, it is an unfair reading of the EQIA report to suggest that it assumed its own conclusion. It did nothing of the sort. It began (i) by explaining its principles and aims ("… Wherever possible we are looking to protect the vulnerable and those who are least able to afford to pay more Council Tax"); it then (ii) explained its methodology (modelling using data and software to look at the effect on people "according to their age, disability, family circumstances and level of income"); it then (iii) analysed seriatim each of the 11 categories of protected people (including "Race Equality", "Disabled People", "Carers", "Gender" etc.) ; and finally (iv) set out its conclusion under the heading "What are the main conclusions from this analysis?" (see above). In my judgment, the conclusion reached was, moreover, rational and reasonable in seeking to achieve a fair balance in relation to the protected groups. It is to be noted in particular: (a) with regard to race, the data collected during the consultation process had not given rise to any material concerns; (b) with regard to gender, there appeared to be no discernible impact; and (c) with regard to disability, any impact was ameliorated by the fact that the 'disregards' that applied in relation to the existing CTB system (i.e. discounting certain benefits) were carried over into the LCTS.
Fifth, the Claimant submitted that Rochdale had 'an erroneous appreciation of what its equality duties required' and none of the Reports, or the EIA, referred to s. 149 of the Equality Act 2010, or made an attempt even to summarise the various statutory objectives. She further submitted that the statement in the September report that the Act gave rise to "the requirement to make fair financial decisions" was a wholly inadequate summary of what the Act required. I disagree. There is no real basis for either submission in law or fact. Rochdale council members were given diversity training. The term "fair financial decisions" is a well-known term in the context of the PSED (see EHRC Guidance "Making Fair Financial Decisions"). The careful analysis in the EQIA suggests that Rochdale's council officials and decision-makers had an entirely proper appreciation of the scope and content of PSED and how to carry it out. It may be safely assumed that this was not the first time that Rochdale had had to consider its s. 149 duties. In any event, there is no formal duty expressly to refer to the duty when complying with it (see the principles above).
'Insufficient consideration of diversity'
The Claimant argued that Rochdale gave insufficient consideration to 'diversity' questions and was wrong to reject a cap on Band 'B' and larger properties because national statistics showed that ethnic minority families tended to have larger families.
The 'diversity' issue is not relevant to the Claimant, who is disabled but not a member of any ethnic minority. However, the Claimant placed reliance on the evidence of another Rochdale resident adversely affected by the new LCTS scheme, Mr Mohammed Ali Sharif. Mr Sharif was originally intended to be a co-claimant in this litigation. Unfortunately, however, his legal aid assessment was not complete in time for the issuance of proceedings. Nevertheless, it seems to me appropriate to bear in mind his case when considering the issues on diversity. Mr Sharif suffers from bi-polar disorder and schizophrenia, has four children, is Muslim, and lives in a larger, Band 'C', property. The effect of the Rochdale LCTS scheme will be that Mr Sharif will in future have a £576.47 liability which he did not previously have.
The Claimant relied upon Mr Sharif's case as an example of a disabled person and parent being 'significantly worse off' and further submits that his case 'may also show a race or religious impact' because Office for National Statistics ("ONS") statistics showed that Asian ethnic families tend to have larger families. She submitted that Rochdale should have known of the ONS statistics and taken them into account. The ONS data showed that particularly Bangladeshi and Pakistani families tended on average to be significantly larger that average. The Claimant did not, however, produce any data either to show the breakdown of Bangladeshi or Pakistani families in Rochdale or to support her proposition that Asian families tended on average to live in larger properties, i.e. Bands 'B', 'C', 'D' etc. In any event, it is clear that Rochdale did consider the effect on larger families (see above).
The Claimant argued that the potential race equality impact had been 'apparently overlooked' by Rochdale. I disagree. The EQIA expressly noted that, in the past, data had not been kept in relation to "Race Equality" because it had not been relevant to the calculation of CTB but stated the intention for diversity data to be gathered using the questionnaire. The Questionnaire included questions regarding ethnicity. The Report of 13th December 2012 presented to the Overview and Scrutiny Committee on 13th December 2012 summarised the ethnicity information received: the breakdown of respondees was 70% White UK, 18% Asian heritage, 2% black African/ Caribbean heritage and 1% other groups. Miss Monaghan QC pointed out that the % of people with Asian heritage responding (18%) was higher than the national average of Asians in the population as a whole (namely 4%, according to the Office of National Statistics ("ONS")). There was no evidence, however, as to what % of the Rochdale population was of Asian heritage; nor was the significance of the point (if any) developed. In any event, in my judgment, the risk of adverse diversity impacts did not emerge from the consultation exercise and did not present itself with sufficient prominence to require Rochdale to examine the possible implications of its decision along that dimension (c.f. Sales J in R (S, KF) v Secretary of State for Justice (supra)).
'Irrationality of the Rochdale LCTS scheme'
The Claimant argued that to the extent that the Defendant did attempt to consider equality impacts, it acted irrationally and got that analysis wrong by (i) discounting race, (ii) having no regard to gender impact, because women were generally of lower income, (iii) concluding that disabled people were unaffected was also wrong, (iv) overlooking younger people, (iv) disregarding other options, i.e. drawing the cap elsewhere.
The Claimant's argument failed, however, to grapple with the essential rationality of Rochdale's scheme which (a) took account of the exceptionally high proportion of Rochdale CTB claimants living in Band 'A' properties and (b) recognised the fiscal and social desirability of concentrating the maximum percentage relief from council tax liability on the lowest Band 'A', rather than in the higher bands. As explained by Miss Oldham, the logic of Rochdale's decision was that (i) Band 'A' claimants represented the majority of CTB claimants in Rochdale by a significant margin, (ii) if Rochdale gave the same, or a similar, amount of benefit as a proportion of council tax to people in Bands higher up the scale, i.e. to Bands 'B' to 'G', this would exponentially reduce the amount of money available to help the majority in Band 'A' who would therefore be disproportionately affected, and (iii) all claimants, in whichever Bands, had relevant benefits disregarded under the LCTS scheme, e.g. child benefit; and, (iv) accordingly, those with larger families continued to receive a greater benefit income than those with smaller families. This in fact amounted to positive treatment of larger families and, on the Claimant's case, a positive treatment of families within certain racial groups who tend to have larger families and, therefore, live in larger houses.
The point is that the defining and distinguishing feature of Rochdale demographics was that Band 'A' claimants represented a much higher proportion of CTB claimants than in many other local authorities. In my judgment, Rochdale was plainly entitled to have regard to this fundamental demographic fact and make it the cornerstone of their scheme. It was entirely rational, proportionate and sensible for Rochdale to seek to spread the benefit of the cap over as wide a group as possible, i.e. Band 'A' claimants (who, moreover, by dint of being in the lowest band, was likely to include many of the less well off). In any event, it could not be said that there was anything "unreasonable or perverse" about the Rochdale LCTS scheme such as to render it unlawful (c.f. Domb (supra)).
'Failure to consider advancing equality'
The Claimant argued was that Rochdale failed in its statutory duty under s. 149 positively to consider the need to advance equality. This was, in my view, an unreal submission. Nothing can be gleaned from the fact that Rochdale did not expressly state that it had considered its duty to advance equality: there is no formal duty expressly to refer to the duty to "advance" equality when complying with it. However, the reality is that the scope for advancing equality in the context of significant cuts in funding might understandably be thought to be somewhat limited. Here Rochdale was seeking to cope with a 10% cut in CTB funding by Central Government. It is clear that Rochdale was seeking to minimise the impact of the scheme on the most vulnerable groups: the EQIA stated expressly "…[w]herever possible we are looking to protect the vulnerable and those who are least able to afford to pay more Council Tax". It is thus clear that Rochdale was paying "due regard" to the need to "minimise" the impact which is what Section 149(3)(a) requires (see above). In the context of cuts, this was simply the reverse side of the coin to advancing equality and the best aspiration that it, as a responsible public authority, could in practice employ in the circumstances, as well as being what its PSED required.
'Failure to do more ring-fencing'
The Claimant placed reliance upon Central Government's reasoning for ring-fencing pensioners as explained its equality impact assessment ("EQIA") dated January 2012 (emphasis added):
"The Government has considered the situation for low income pensioners who would currently be eligible for support with their council tax bill. Unlike most other groups, pensioners cannot be expected to seek paid employment to increase their income. The government therefore proposes that as a vulnerable group, low income pensioners should be protected from any reduction in support as a result of this reform."
Ms Monaghan QC submitted that exactly the same could be said for other protected groups, particularly the disabled. This may well be so. However, as Ms Oldham pointed out, it is striking that the government chose to grant only a single 'carve-out' in respect of low-income pensioners and no others. In my judgment, Ms Monaghan QC's submission ignores the essential tenet of the legislative change which was to hand to local authorities a general discretion as to how they deal with council tax support in relation to all working-age persons. This general discretion included a discretion as to (a) how best to raise the necessary funds to cover the 10% shortfall in Central Government CTB funding and (b) how the burden should fall generally and particularly on people of working age within the council's net, including on vulnerable groups. Local authorities were not obliged to employ any other carve-outs or even maintain CTB. They could simply have cut other services (e.g. rubbish collection, libraries etc.) in order to be able to continue to fully fund council tax benefit at the same rate as before. I repeat: the Court is not in the business of micro-managing or second-guessing such decisions.
'Wrongful wish to avoid legal challenge'
The Claimant criticised Rochdale council officers for stating that they wanted to develop a scheme which 'minimised the possibility of a legal challenge'. In my view, such a statement is no bar to compliance with PSED. Per contra, it is merely an expression of the perfectly proper sentiment of wanting to adopt a lawful scheme. It is noteworthy that even the DCLG's Statement of Intent uses similar language.
'Insufficient costing'
The Claimant suggested that Rochdale needed to cost the LCTS scheme and cost not having it. In my judgment, it is quite clear that Rochdale had costed the scheme and the alternatives thoroughly; indeed, they had been doing so since July 2012.
'Insufficient consideration of Transitional Grant'
The Claimant suggested that Rochdale should have assessed Central Government's Transitional Grant proposal thoroughly. In my judgment, it is quite clear that Rochdale did consider the Transitional Grant on offer carefully; and it was clearly non-viable.
'Insufficient assessment of effect of proposals'
Miss Monaghan QC relied upon Lang J's decision in JM v Isle of Wight [2011] EWHC 2911 (Admin) to suggest that Rochdale made no sufficient assessment as to the particular effect of its proposals on particular members of protected groups. I reject the submission for the same reasons as Supperstone J rejected a similar submission in R(Buckley et al) v. Sheffield City Council (supra) (at para. [40 vii)]. The duty to have "due regard" is not a duty to carry out an comprehensive impact assessment. In any event, JM v Isle of Wight is distinguishable because it concerned the eligibility criteria for disability care, different bands, the hierarchy within bands, the assessments of relative risks to independence, and hence a question whether or not people would in fact receive care. The present case is one which involves purely financial impact. Further, whether or not Rochdale's steps to mitigate the effect of its proposals were adequate is a matter for Rochdale not the Court to determine (see Kenneth Parker J in JG and MB and Lancashire County Council (Supra)).
'Rochdale' s reserves'
At one stage, the Claimant sought to argue that Rochdale has substantial reserves which were potentially available to fund the shortfall and/or ring-fencing of protected groups. Ms Monaghan QC accepted, however, that this point was based on a misunderstanding of the figures. No other potentially available funds were identified.
Claim academic
A question arose as to the position if it were established that there was no breach of duty as regards the particular claimant in these proceedings was concerned, i.e. as regards disability. In my view, the effect of my finding that Rochdale complied with its PSED duty inter alia as regards disability (see above) would be to render the Claimant's PSED claim academic and, even if the Claimant could show a public interest reason why the claim should be allowed to continue, no relief should be granted. The question does not arise, however, in view of my decision that Rochdale did substantively comply with its PSED duty.
Postscript
In my judgment, the following words of Davis LJ in Brown (supra) at [102] are equally apposite, mutatis mutandis, to the present case:
"The importance of complying with s.149 is not to be understated. Nevertheless, in a case where the council was fully apprised of its duty under s.149 and had the benefit of a most careful Report and EIA, I consider that an air of unreality has descended over this particular line of attack. Councils cannot be expected to speculate on or to investigate or to explore such matters ad infinitum; nor can they be expected to apply, indeed they are to be discouraged from applying, the degree of forensic analysis for the purpose of an EIA and of consideration of their duties under s.149 which a QC might deploy in court. The outcome of cases such as this is ultimately, of course, fact specific (see Harris v. London Borough of Haringey [2010] EWCA Civ 703]). All the same, in situations where hard choices have to be made it does seem to me that to accede to the approach urged by Miss Rose in this case would, with respect, be to make effective decision making on the part of local authorities and other public bodies unduly and unreasonably onerous."
Conclusion on PSED
In conclusion, therefore, I reject all of the Claimant's criticisms of Rochdale's approach to its PSED. The answer to the question whether the Rochdale decision makers in substance paid due regard to its PSED is 'yes'.
DELAY
Miss Oldham raised an argument on delay by the Claimant in bringing the proceedings. She submitted that it had been public knowledge since October 2012 (when section 13A and Schedule 1A LGFA 1992 came into force) that if a local scheme was not in place by 31st January 2013, Central Government's default scheme would apply; the Claimant, nevertheless, did not promptly bring forth her challenge immediately after the 20th December 2012 decision, but waited until 25th January 2013 before raising a challenge. She submits that permission for judicial review should be refused on this ground.
I reject Rochdale's argument on delay. In my judgment, the Claimant did not act with unreasonable delay. She was entitled to take some time to consider Rochdale's decision on 20th December 2012 before launching her application for judicial review; and in view of the intervention of Christmas and the potential complexities involved, the Claimant's challenge was launched reasonably promptly in all the circumstances.
RESULT
In the result, it is for the reasons set out in this judgment, that I notified the parties of my decision at noon on Wednesday 27th February 2013 as follows (see above):
1. The Claimant is granted permission to apply for judicial review.
2. The Claimant's application for substantive relief is refused.
