QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN on the application of MARK LOGAN
|- and -
|LONDON BOROUGH OF HAVERING
Clive Sheldon QC, Ronnie Davis and Zoe Gannon (instructed by Stephen Doye One Source) for the Defendant
Hearing dates: 16-17 September 2015
Crown Copyright ©
Mr Justice Blake :
i) the reduction under s.13A (1)(a) of a person's liability to pay council tax to the extent required by a council tax scheme (the scheme) adopted by the billing authority (the relevant local authority);
ii) the further reduction of such liability to such extent as the billing authority thinks fit (s.13A (1) (c));
iii) a duty on the billing authority to make a scheme specifying reductions to persons considered to be in financial need or classes of persons to be considered in general in need (s.13A (2)).
i) in the event that the billing authority failed to make a scheme by 31 January for the financial year beginning in April, the terms of a default scheme would apply;
ii) where the billing authority did make a scheme, its terms were a matter for the authority in question save that people of retirement age who had less than £16,000 in capital must be included in such a scheme (regulation 11) and where relevant earnings fell below the applicable amount, a 100% reduction in liability to pay council tax should apply to such people;
iii) by Schedules 4 to 6 of the Regulations certain earnings, income other than earnings and capital amounts were to be disregarded;
iv) by Schedule 7 of the Regulations procedural matters were to be included in the scheme, otherwise leaving the billing authority to decide the persons or classes of persons below retirement age who should fall within the scheme and the rate of reduction that should apply.
"The scheme itself had been designed to assist people on low incomes pay their council tax. Certain vulnerable groups faced barriers to work which resulted in less earning power and entitled them to claim CTS. An even distribution of the 15% reduction did not therefore disproportionately impact any specific single vulnerable group."
"If the proposals are approved disabled people who are of working age will also be negatively affected. This is because they are disproportionately represented amongst working age claimants who will receive a reduction in Council Tax support. In addition, disabled people are less likely to have the same opportunities and access to work and employment that would improve their financial situation.
Support is in place through the Council Tax Discretionary policy for those who suffer hardship as a result of these proposals to mitigate any negative impacts….
The Council recognises the barriers disabled people face and seek to assist them by disregarding Disability Living Allowance and Attendance Allowance in the calculation of Council Tax Support….
In addition to the above, the Council seeks to maximise Council Tax Support for the disabled people by increasing the applicable amount for them through premiums. Currently, there are premiums for severe disability, enhanced disability, and a disabled child rate. Such premiums are granted when Council Tax Support applicants receive a relevant disability related benefit granted and administered by the Department of Work and Pensions….
Disabled people who are unable to work receive higher levels of state benefits and while based on the proposals they will be subject to a 15% liability reduction, disabled working age claimants are likely to have a higher income than other unemployed, working age claimants whose council tax support will also be reduced."
Having due regard for the PSED
"(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–
(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;
(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.
(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."
i) An important element in demonstrating the discharge of the duty that is considered integral to the fulfilment of the anti-discrimination aims of the legislation is the recording of the steps taken by the decision maker in seeking to meet the statutory requirement (Propositions 2 and 5).
ii) The relevant duty is on the decision maker personally, and cannot simply be discharged by matters within the knowledge of officers when making a report or filing evidence (propositions 3 and 5).
iii) The duty must be fulfilled at the time of policy formation and decision taking and not merely as a rearguard action following such decision; it is not a tick box exercise (Propositions 4 and 5).
iv) Due regard is not achieved by general regard to equality issues, but by conscientious consideration given to the statutory criteria (Propositions 6 and 8).
"83. For our part, and again with respect, we are unable to agree with the judge that the inference that he drew was one that was available on the evidence. We have no difficulty, nor was the contrary suggested, in accepting that if council members are provided with a particular set of materials for the purpose of a meeting, they can, absent positive evidence to the contrary effect, be taken to have read all such materials and also to have read any additional materials to which they were expressly referred and to which they were told they needed to have regard for the purposes of the meeting. If, for example, they had been told that a key document was too bulky and expensive to copy and circulate, but was available at a given website address, and they were further told in appropriate terms that this document was required reading for the purposes of the meeting, we consider that they must be taken to have accessed and read it.
84. In the present case, however, we do not interpret the language of Appendix 6 as indicating to the Council members any need or requirement to read the EIAs themselves. Whilst they were told how to access the EIAs, they were not told, either expressly or impliedly, that they must or should consider them before the meeting. The fact that they were summarised in Appendix 6 itself suggests that a reference to the documents themselves was not essential: why bother to summarise a document which must anyway be read in full? Moreover, the terms of paragraph 12 of the officers' report to members (see paragraph 46 above) also suggested that Appendix 6 told the Council members all they needed to know for PSED purposes.
85. If there were no more, we would not therefore be prepared to conclude that the members had read the relevant EIA. There was, however, a little more. First, Councillor Lake had read the EIAs in full before the meeting, and the judge concluded, therefore, that so also had 'all responsible councillors'. We are not sure what the word 'responsible' was thought to add: we presume the judge simply meant 'all councillors'. We do not, however, regard Councillor Lake's evidence about what he did as providing any indication as to what all the other councillors did or were likely to have done. Councillor Lake was in the special position that his portfolio of responsibilities included the Council's approach to equality related issues, and he explained in his evidence that he had received training in relation to decision making in compliance with PSED. It is, therefore, if we may say so, fairly obvious that he would have read the EIAs, and it would have been surprising if he had not. The range of his responsibilities shows why he would have had a special interest in them. The same cannot, however, be said of the Council members generally.
i) The claimant's contentions with respect to discrimination on the grounds of age and/or disability fail both under Article 14 ECHR and under the Equality Act.
ii) The EIA was not defective as contended.
iii) There is insufficient evidence to support the conclusion that due regard was had to the EIA by those who took the decision.
iv) There is sufficient vindication of the public interest and the claimant's rights in this litigation for conclusion (iii) to be stated in a declaratory judgment and no other formal relief is needed.
Discrimination contrary to Article 14 and AIP1
The discretionary scheme
Discrimination contrary to the Equality Act
Due regard to the PSED