QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the Application of
(1) Lucy Williams
(2) Nicholas Dorrington
|Surrey County Council
for the Claimants
Elisabeth Laing QC, Patrick Halliday (instructed by Surrey County Council Legal Services) for the Defendant
Hearing dates: 19 & 20 March 2012
Crown Copyright ©
Mr Justice Wilkie:
"to work with parish councils, local charities, community groups and organisations with the aim of inviting interest to establish community partnerships at selected libraries, and co-designing and developing a Surrey model for locally managed and partnered libraries, and that a progress report be submitted to cabinet following the consultation period"
"that local communities lead in driving the community partnering approach for libraries forward".
i) exploring community interest in providing CPLs and communicating with community groups in order to develop plans for CPLs, and
ii) holding meetings on the subject of the PVR report with Disability Empowerment Boards (DEBs), which are representative bodies for disabled persons, as well as with the Defendant's Equalities External Advisory Group (EEAG).
"a position statement on the implementation of the key library Public Value Review recommendations. It outlines the current position with the establishment of community partnered libraries…"
The statutory scheme and relevant law
(1) to reform and harmonise equality law and restate the greater part of the enactments relating to discrimination … related to certain characteristics,
(2) to require the exercise of certain functions to be with regard to the need to eliminate discrimination and other prohibited conduct,
(3) to increase equality of opportunity.
(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination … 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 … involves having due regard, in particular, to the need to—
(a) remove or minimise disadvantages suffered …
(b) take steps to meet the needs of persons …
(c) encourage persons ... 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 … involves having due regard, in particular, to the need to—
(a) tackle prejudice
(b) promote understanding
(6) Compliance with the duties in this section may involve treating some persons more favourably than others …
(7) The relevant protected characteristics are—
(There are then set out 8 specific protected characteristics)
i) Due regard requires more than simply giving consideration to the issue and councillors should be aware of the special duties a council owes to the disabled before they take a decision R(Chavda) v LB Harrow  EWHC 3064 (Admin).
ii) "Due regard" is the regard that is appropriate, in all the particular circumstances in which the public authority concerned is carrying out its function as a public authority. The public authority must also pay regard to any countervailing factors. The weight to be given to the countervailing factors is a matter for the public authority concerned rather than the Court, unless the assessment by the public authority is unreasonable or irrational. (Dyson LJ (as he then was) in R(Baker) v SS Communities and Local Government  LGR 239 and R(Brown) v SS Work and Pensions  EWHC 3158 (Admin)).
iii) No duty is imposed to take certain steps or to achieve certain results. The duty is only to have due regard to the need to take the relevant steps. The Court will only interfere if the local authority has acted out with the scope of any reasonable public authority in the circumstances. The public authority will need to take steps to gather all the relevant information (Brown).
iv) The law does not impose a statutory duty on public authorities requiring them to carry out a formal disability equality impact assessment (EIA) when carrying out their functions. At the most it imposes a duty on a public authority to consider undertaking an EIA along with other means of gathering information (Brown).
v) The due regard duty must be fulfilled before and at the time that a particular policy, which will or might affect disabled people, is being considered by the public authority. It involves a conscious approach and state of mind. It must be exercised in substance, with rigour and with an open mind. It is not a question of ticking boxes (Brown).
vi) The duty imposed on the public authority is non delegable. It remains on the public authority charged with it (Brown).
vii) The duty is a continuing one (Brown).
viii) It is good practice for those exercising public functions in public authorities to keep an adequate record, showing they had actually considered their disability equality duties. If records are not kept it may make it more difficult evidentially for a public authority to persuade a Court that it has fulfilled the duty imposed (Brown).
ix) Some of these principles have been drawn together as follows. There is no statutory duty to carry out a formal EIA. The duty is to have due regard, not to achieve certain results. Due regard does not exclude having regard to countervailing factors but is "the regard that is appropriate in all the circumstances". The test of whether a decision maker has had due regard is a test of substance and not of mere form or box ticking. The duty must be performed with rigour and with an open mind and is non delegable. Members are heavily reliant on officers for advice in taking these decisions. That makes it doubly important for officers not simply to tell members what they want to hear but to be rigorous in both enquiring and reporting to them R (Domb and others) v LB Hammersmith and Fulham  EWCA 941 Civ).
x) The clear purpose of (Section 149) is to require public bodies to give advance consideration to the issue of (race) discrimination before making any policy decisions that may be effected by such an issue. This is a salutary requirement which must be seen as an integral part of the mechanisms for ensuring the fulfillment and aims of anti discrimination legislation. It is not possible to take the view that non compliance is not a very important matter. [Section 149] has a significant role to play R(Elias) v SS for Defence  EWCA Civ 1293.
xi) Due regard must be an essential preliminary to any important policy decision, not a rearguard action following a concluded decision R(Bapio Action Ltd) v SSHD 2007 EWCA Civ 1139.
xii) Consideration of the duties must be an integral part of the proposed policy not justification for its adoption R(Kaur and Others) v London Borough of Ealing  EWHC 2062 (Admin)
xiii) The Section 149 duty must be kept in mind by decision makers throughout the decision making process. It should be embedded in the process but can have no fixed content bearing in mind the range of potential factors and situations. What observance of that duty requires of decision makers is fact sensitive and varies considerably from situation to situation and from time to time and from stage to stage R (Bailey) v LB Brent  EWCA Civ 1586 para 83.
xiv) The importance of complying with Section 149 is not to be understated, nevertheless, in a case where the council was fully appraised of its duty and had the benefit of a most careful report and EIA an air of unreality may descend. Councils cannot be expected to speculate, 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 Section 149 which a QC might deploy in Court. The outcome of such cases is ultimately of course fact specific (Bailey para 102 Davis LJ).
"77. … I do not accept that this means that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then, as Dyson LJ in Baker made clear, it is for the decision maker to decide how much weight should be given to the various factors informing the decision.
78. The concept of "due regard" requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely as to what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors. …"
The use of EIAs by the Library Service
"Ensuring any community partnered libraries that are introduced meet the universal ethos of the library service as well as specific equality requirements and that community partnered libraries continue to meet equality standards".
Under the heading "accessibility" an issue was identified in the following terms
"to ensure that community partnered libraries continue to meet accessibility standards".
"Residents and equality advisory groups have not yet been consulted on the proposed approach and this will be important to inform the proposals and develop appropriate mitigating actions against negative impact and no final decision will be taken by cabinet until consultation is completed and the result analysed".
"If suitable community partnerships cannot be established … between 4 and 10 % of service users have mobility issues and will find it more difficult to access an alternative library"
"The development of community managed libraries and ongoing support to them requires clear standards to be in place to avoid a risk of negative impact on any of equality strands and ensure that a high quality and universal is accessible to all".
Certain principles for mitigating actions were set out in that section, including;
"any new arrangement should ensure that they are compliant with both the Equality Act and the current Public Sector Duty and reviewed against the new Public Sector Duty that will be introduced in April 2011. This will be an ongoing requirement".
"EIA required to be updated following the consultation phase and as part of the implementation plan, to consider the impact on the medium and longer term recommendations …
Set clear standards for community managed libraries to ensure compliance with equalities legislation and Surrey values.
Consultation with users on changes to services will need to reach more vulnerable groups".
The Public Value Review Report – 1st February 2011
"The Public Value Review sees the development of Community Partnered Libraries as a key opportunity for local communities to exercise greater influence and control over the development and use of libraries in small communities".
"Transferring the local management of some library services to local organizations represents a complex and radical change in the means of delivering a library service in Surrey. A change of this magnitude would require skills new to the service as well as sufficient staff and management time to help establish community partnered libraries and to then support them on an ongoing basis with issues such as training".
"Consulting with parish councils, local community groups and organizations on the viability of establishing a community partnership at selected libraries. Progress on this consultation will be reported back to the cabinet in June 2011 with a view to decisions being made as to the future of these libraries. Where community libraries are to be established, the council intends that discussions with interested parties are under way by September 2011. Costs savings from establishing community partnered libraries will be dependant upon the consultation process and subsequent interest from local organisations".
"Working in partnership with community bodies will require training for staff and volunteers as well as putting systems and procedures in place to monitor service quality and to evaluate the effectiveness of these community partnerships".
"Identification of key activities, clear guidelines and the establishment of quality standards in order to ensure a professional consistent approach."
"Use of benchmarking and regular views of service activities to evaluate an effectiveness and look for improvements and scrutiny to ensure challenge".
The review recommended the adoption of an action plan based on those findings to develop and strengthen quality assurance arrangements.
"An initial EIA screening has been completed in respect of the impact on library services staff."
The EIA had identified actions to mitigate negative impact including;
"Determine appropriate consultation with equality advisory groups"
"Set clear standards for community partnered libraries to ensure compliance with equalities legislation and Surrey values".
52. Under the heading "Risk Management Implications" it identified as a key risk; "Unknown sustainability of community partnership will require the thorough development of an operation model and close working with estates and property management".
"full information and guidance regarding community partnerships to be provided as part of the consultation including job descriptions for volunteers and the number of volunteers and hours required".
The Consultation Process
The Report to Cabinet dated 27th September 2011
"These issues and the work that is being undertaken to deliver this is set out in the report".
"The development and provision of training to the CPLs in terms of both management and service delivery".
"A detailed Equality Impact Assessment was undertaken on the PVR and the project continues to be developed in line with this".
The September EIA
"this is communicated to groups who are in discussions around providing CPLs and will be reflected in the agreements with them. Measures of success are being developed to reflect this need".
"This is ongoing. Issues around E and D are discussed with community groups particularly around ensuring that the CPLs are promoted to and are open and accessible to all members of the community. No additional E and D issues"
"All efforts will be made to ensuring that community partnerships are successful in order to avoid the need to close libraries. If any libraries have to be closed they will be subject to a separate EIA individually" ;
"In developing quality assurance systems and a marketing approach we need to ensue that all of our communities are recognized and understood".
"(1) That a separate EIA be completed in the event that a library needs to be proposed for closure and (2) our approach to quality assurance and marketing ensures that the requirements of all our community are understood and addressed."
Volunteers and training
The Claimants' Evidence
Submissions and Conclusions