Upper Tribunal (Administrative Appeals Chamber)

LS v Secretary of State for Work and Pensions (SF) (Benefits for children : other) [2014] UKUT 298 (AAC) (26 June 2014)



CIS/3320/2012

 

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

Decision and Hearing

 

1. This appeal by the claimant succeeds in the technical sense that  in accordance with the provisions of section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the First-tier Tribunal sitting in Sheffield and made on 16^th July 2012 under reference SC147/11/01775. However, I substitute my own decision to the same effect. This is that the claimant is not entitled to a Sure Start Maternity Grant in respect of her claim made on or about 10^th February 2011.

 

2. I held an oral hearing of this appeal in Field House (London) on 6^th February 2014. The claimant did not attend in person but was represented by Mr Michael Spencer, solicitor from the Child Poverty Action Group (assisted by Mr Martin Williams). The Secretary of State was represented by Mr Ivan Hare of counsel instructed by the Solicitor to the Department for Work and Pensions. I am grateful to them all for their assistance.

 

The Sure Start Maternity Grant Provisions

 

3. Section 138(1) of the Social Security Contributions and Benefits Act 1992 provides as follows:

 

138(1) There may be made out of the social fund, in accordance with this Part of this Act -

(a)    Payments of prescribed amounts, whether in respect of prescribed items or otherwise, to meet, in prescribed circumstances, maternity expenses …

 

Section 138(4) defines “prescribed” as meaning “specified in or determined in accordance with regulations”.

 

4. The main regulations that are relevant in this appeal are the Social Fund Maternity and Funeral (General) Regulations 2005. In respect of claims made before 23^rd January 2011 the relevant provisions of those regulations provided as follows:

 

5(1) Subject to regulation 6 [trade disputes] a payment to meet maternity expenses (referred to in these Regulations as a “Sure Start Maternity Grant”) shall be made where -

 

(a)    the claimant or the claimant’s partner has, in respect of the date of the claim for a Sure Start Maternity Grant, been awarded -

(i)                 income support,

[or another of a list of means tested benefits], and

(b)   either -

(i)                 the claimant or, if the claimant is a member of a family, one of the family is pregnant of has given birth to a child or a still-born child, or …

 

5. Regulation 5(1)(c) imposed a condition relating to the receipt of advice, regulation 5(1)(d) required a claim to be made within the prescribed time and regulation 5(2) provided that (my emphasis):

 

5(2) The amount of a Sure Start Maternity Grant shall be £500 in respect of each child.

 

6. The Social Fund Maternity Grant Amendment Regulations 2011 amended the 2005 regulations and came into force on 24^th January 2011. In addition to other amendments it inserted a new regulation 5A as follow:

 

5A(1) In this regulation “C” is the child … in respect of whom a Sure Start Maternity Grant is claimed.

 

(2) Except where paragraph (3) or (4) applies a Sure Start Maternity Grant shall not be awarded if, at the date of the claim any member of the claimant’s family apart from C is under the age of 16.

 

7. I do not need to go into the exceptions in 5A(3) and (4) for the purposes of this decision. The effect of 5A(2) is that a claimant whose family already includes a person under the age of 16 cannot be entitled to a Sure Start Maternity Grant. Except for the rare case where the age gap between two children exceeds 16 years this means that in respect of claims made after the amendment came into effect a family can only ever receive one Sure Start Maternity Grant no matter what their actual needs are. It cannot be controversial to say that in the absence of any compensatory financial measures this amendment makes life more difficult than previously for poorer families who are in receipt of means tested benefit, the more children they have.

 

8. The amendment applied to claims made from 24^th January 2011 for babies expected or born on or after 11^th April 2011 (or in certain other eventualities).

 

The Race Relations Act 1976

 

9. Section 71(1) of the Race Relations Act 1976 as amended provides as follows:

 

71(1) Everybody or other person specified in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have regard to the need -

 

(a) to eliminate unlawful discrimination and victimisation; and

 

(b) to promote equality of opportunity and good relations between persons of different racial groups.

 

10. Schedule 1A specifically includes in paragraph 1(1) “A Minister of the Crown or government department”. There is no dispute and there can be no doubt than in drafting, making and promoting the relevant amendments to the Social Fund Maternity and Funeral (General) Regulations 2005 that are referred to above, the Secretary of State and other ministers were carrying out functions referred to in the provisions of section 71(1) of the Race Relations Act 1976 as amended. This duty is often referred to as “the public sector equality duty”.

 

The Public Sector Equality Duty

 

11. The public sector equality duty was recently (6^th November 2013) considered by the Court of Appeal in Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345. That case was about the decision of the Minister of State (for disabled people) to close the Independent Living Fund from the end of March 2015.  A number of beneficiaries of the fund sought judicial review of that decision on several grounds including a breach of the public sector equality duty. The Court of Appeal quashed the Minister’s decision on the basis that the duty had been breached. Lord Justice McCombe set out a number of principles to be applied by the courts. I do not propose to set out in full the two and a half pages of the paragraph or to review the 13 cases that were cited to the Court of Appeal, but I summarise the main points as follows:

 

-          Equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation.

-          An important evidential element in the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements.

-          The relevant duty is on the Minister or other decision maker personally, who cannot be taken to know what his or her officials know or what may have been in their minds.

-          A Minister must assess the risk and extent of any adverse impact and the ways in which such a risk may be eliminated before the adoption of a proposed policy and not merely as a rearguard action following a concluded decision.

-          The duty to have due regard to the relevant matters must be fulfilled before and at the time when a particular policy is being considered and is a continuing and non-delegable duty

-          Provided that there has been a rigorous consideration of the duty and a proper appreciation of the potential impact of the decision on equality objectives, it is for the decision maker to decide how much weight should be given to the various factors informing the decision. 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.

-          Public authorities must be properly informed before taking a decision and if the relevant material is not available, there will be a duty to acquire it and this will frequently mean that some further consultation with appropriate groups is required.

 

12. On this final point, Lord Justice Elias pointed out in R ota Hurley and Moore v Secretary of State for Business Innovation and Skills [2012] EWHC 201 (Admin) that steps to gather further information are not necessary if the public body properly considers that it can exercise its duty with the material it has (paragraph 90).

 

13. The above principles set out very clearly the nature of the public sector equality duty. In the present case the parties have cited very many other authorities, but I derive limited assistance from decisions made in totally different contexts and often against different procedural backgrounds and different concessions.

 

Background and Procedure

 

14. The claimant is a woman who was born on 16^th May 1986. At the relevant times she was a single parent in receipt of income support. She already had one child, aged four, when she made a new claim for a Sure Start Maternity Grant on 10^th February 2011 in respect of a baby due to be born on 23^rd April 2011. On 14^th February 2011 the Secretary of State refused to make an award because the claimant had another child under the age of 16.  On 25^th March 2011 the claimant appealed to the First-tier Tribunal against that decision of the Secretary of State on the grounds that the amendments to the 2005 regulations were of no effect because in making them the Secretary of State had failed to have regard to his duty under section 71 of the 1976 Act. She also said that she had not kept the maternity items that she had bought when her first child was born because she had not anticipated having another child. She was unable to buy a cot, car seat, pram, steriliser, clothes or other essential items for her baby, and was unable to access alternative funding or to obtain credit.

 

15. The First-tier Tribunal finally considered the matter on 18^th July 2012 and upheld the decision of the Secretary of State. A great deal of legal argument by both parties had been put before the tribunal and there were 200 pages of documents. The First-tier Tribunal’s terse statement of reasons simply recorded the claimant’s concession that she was not entitled under the wording of the amended regulations and that her argument was that the amendments were ultra vires (made outside the powers given to make regulations) and of no effect; the rest of its reasoning was:

 

“As far as the Tribunal is concerned the Amendment Regulations have been properly made. It is for Parliament to determine the rules of entitlement and the Tribunal can see no reason not to apply the Amendment Regulations as set out”.

 

16. This hardly does justice to the serious arguments put before the First-tier Tribunal and the Secretary of State has agreed that the First-tier Tribunal has jurisdiction to rule on the vires of a regulation (although supporting the conclusion reached by the First-tier Tribunal). That is why I have set aside the decision of the First-tier Tribunal and given fresh consideration to the legal arguments.

 

17. On 22^nd August 2012 the District Tribunal Judge gave the claimant permission to appeal to the Upper Tribunal. On 12^th November 2012 I directed the parties to make written submissions and on 29^th April 2013 I directed that there be an oral hearing of the appeal. Difficulties then arose in maintaining contact with the claimant and with the availability of her representatives. An oral hearing that had been fixed for 14^th November 2013 had to be postponed, and it was not possible for the Upper Tribunal to hear the matter until 6^th February 2014. Other matters then arose, including a potentially relevant decision by the Upper Tribunal in Scotland, that necessitated further written submissions. Final submissions were received on 18^th March 2014 but for reasons that I do not understand, the file was not referred back to me until 8^th May 2014. Judicial leave then intervened. The effect of all this delay is that it is now well over three years since the original claim was made and since the decision of the Secretary of State that is under appeal. This is all very regrettable.

 

18. In the event, I do not propose to comment on the decision made in Scotland, where the main issue was discrimination contrary to the Human Rights Act 1998 and the Secretary of State had not addressed his mind at all to the potential discrimination. Neither party has suggested that the decision is of any relevance to my decision in the present case.

 

The Ultra Vires Jurisdiction

 

19. In the decision in the House of Lords in Chief Adjudication Officer v Foster [1993] AC 754 Lord Bridge (with whom all of their other Lordships agreed) said (at 766 to 767):

 

My conclusion is that the [social security] commissioners have undoubted jurisdiction to determine any challenge to the vires of a provision in regulations made by the Secretary of State as being beyond the scope of the enabling power whenever it is necessary to do so in determining whether a decision under appeal was erroneous in point of law. I am pleased to reach that conclusion for two reasons. First, it avoids a cumbrous duplicity of proceedings which could only add to the already overburdened list of applications for judicial review awaiting determination by the Divisional Court. Second, it is, in my view, highly desirable that when the Court of Appeal, or indeed your Lordships’ House, are called upon to determine an issue of the kind in question they should have the benefit of the views upon it of one or more of the commissioners who have great expertise in this somewhat esoteric area of the law”.

 

20. Following the implementation of the relevant sections of the Tribunals, Courts and Enforcement Act 2007 the jurisdiction of the Social Security Commissioners is now exercised by the Upper Tribunal (which is a superior court of record - section 3(5)), almost all of the inaugural salaried judges of the Administrative Appeal Chamber of that Tribunal were previously salaried Social Security Commissioners, as were almost all the current senior judges, and that Chamber exercises the judicial review functions previously exercised by the Divisional Court or the Administrative Court in relation to most social security and social entitlement matters (under the authority of sections 15 to 19 of the 2007 Act and the Lord Chief Justice’s Practice Direction of 29^th October 2008). There can be no doubt that the Upper Tribunal has the power to determine vires in this kind of case.

 

21. In VL v Secretary of State for Work and Pensions [2011] UKUT 227 (AAC), [2012] AACR 10, CIS/2274/2009 I rejected an argument that the scope of Foster was limited to questions as to whether regulations made by the Secretary of State are beyond the scope of the enabling power, and that it had not dealt with the issue of regulations that might be said to conflict with other statutory provisions. I concluded that the Upper Tribunal has the power not only to find subordinate legislation to be invalid if it is ultra vires the enabling legislation (Foster) but also if it conflicts with statutory rights already enacted by other primary legislation (Court of Appeal decision in R v Secretary of State ex parte JCWI and R v Secretary of State ex parte B [1997] 1 WLR 275), but only in cases where there is no other reasonable way to exercise such rights (because if there is such a way, there is no real conflict).

 

The Witness Statement

 

22. While written submissions to the Upper Tribunal were being made the Secretary of State lodged a witness statement signed on 21^st January 2014 and made by Mr D, a very experienced civil servant who was at that time Head of Strategy for the Social Fund within the Department for Work and Pensions. As I understand it the factual contents of this statement are not disputed, both parties have referred to it and I shall refer to it further below.

 

The Appellant/Claimant’s Argument

 

23. The legal dispute between the parties is whether or not the Secretary of State complied with the public sector equality duty in drafting, making and promoting the relevant amendments to the Social Fund Maternity and Funeral (General) Regulations 2005.

 

24. The regulations were drafted in late 2010. The government carried out an initial equality impact assessment of the effect of the amendments that was completed on 25^th November 2010. It is exhibited to Mr D’s statement and reproduced on pages 334 to 342 of the Upper Tribunal file. For the claimant, Mr Spencer referred to the section headed “Ethnicity” which begins on page 340 and states:

 

“We do not have individual level data to assess the impact on ethnicity. However there is data available from the Office of National Statistics on family size and ethnicity summarised in the tables below. To assess the impact of the Sure Start Maternity Grant measure on families by ethnicity we would ideally look at the size of completed families but such data is not available. The available data is given in the tables below. This cannot necessarily be extrapolated to completed families. There could be other factors affecting the data, for example the age at which people have children. Also the data is for the entire population, not people who are potentially eligible for a Sure Start Maternity Grant”.

 

25. Although clumsily worded (there is no “impact on ethnicity”) this clearly considers whether there would be a differential impact according to ethnicity. The tables are taken from the 2001 census. The first table classifies people in England and Wales according to 16 different descriptions of ethnicity (including a residual “other ethnic group” category). As I understand it, these descriptions are self-selected by those completing the census form and are not absolutely reliable because people from identical backgrounds might actually adopt different descriptions of themselves. The table then lists the proportion of households in each group with two or more dependent children as a proportion of all households with dependent children. Dependent children include those aged 16 to 18 who are full time students in a family with parents. This is another source of unreliability for present purposes because the amending regulations only affect families with an older child or children under the age of 16. There are also other counting rules.

 

26. The table shows that 58.1% of all households with at least one dependent child have two or more dependent children. When further analysed according to description the proportions range from 49.9% for “Black or Black British: Black Caribbean” to 75.8% for “Asian or Asian British: Bangladeshi”. Of the 16 groups, 10 fall within the range 52.8% to 58.8% and 13 fall within the range 52.8% to 62.5%. I observe that the number of “Black African” households with 2 or more dependent children as a proportion of all “Black African” households with children is shown as 61.7%, not much greater than the 57.8% shown for “White: British”. The equivalent figure for “Asian or Asian British: Pakistani” is 73.0% and for “Asian or Asian British: Bangladeshi” is 75.8%.

 

27. The second table lists 10 categories of description of ethnicity and statistics for other aspects of family made-up, but I cannot see that it adds anything for the purposes of the present appeal.

 

28. Mr Spencer then referred to the report from the Social Security Advisory Committee report of 20^th January 2011 (reproduced on pages 22 to 35 of the Upper Tribunal file). In paragraph 4.29 the Committee stated:

 

“We are surprised to read the Department’s statement about the lack of relevant data available to it on ethnicity. We believe that the Family and Children Survey would provide information on both ethnicity and the space between children, although it would need bespoke analysis before conclusions could be drawn. Clearly the Department needs information of this nature since, without it a meaningful analysis of the effect of the measure on ethnic minorities cannot be made. In this particular instance it would appear to be self-evident that the proposed change will affect larger families disproportionately. Moreover it would be our expectation that families with Asian and Black African origins would be more highly represented in that category”.

 

29. In paragraph 5.8 of its report the Committee referred to the responses from organisations to which it had sent the draft amendments for comment:

 

“… a number of comments were raised on the impact upon ethnic minorities. Respondents generally took it as self-evident that the proposal would have a disproportionately negative impact upon Bangladeshi and Pakistani families where large families predominate and the extent of child poverty is high. In the light of that observation respondents expect to see a rationale from the Government setting out the reasons which would justify the proposal”.

 

30. It is convenient to set out here extracts from the government’s response to the Committee’s report (see paragraphs 37 and 40 of Mr M’s statement, on pages 315 to 316 of the Upper Tribunal file):

 

“These cuts are necessary as part of the wider Government’s public finance deficit plans, as the Committee’s report acknowledges. Support for families through tax credits, welfare payments, tax relief for childcare and one-off payments for families is currently very generous and not sufficiently targeted on those who need it most. The Budget package shares the burden of reducing the deficit across the income distribution while mitigating the impact on the most vulnerable. Restricting access to the Sure Start Maternity Grant scheme is consistent with this approach.

 

…

 

As previously stated, individual level data to assess the impact on ethnicity is not available. When a Sure Start Maternity Grant is made, ethnicity data is not required.  The most appropriate way of assessing the impact of the measure on families by ethnicity would be to look at the size of completed families but this data is not available. The only available data is from the Census. However, this cannot be extrapolated to completed families, nor can it differentiate between the wider population and households who are potentially eligible for a Sure Start Maternity Grant”.

 

31. The first paragraph quoted above is, as would be expected, a highly political response and it is not for the courts to express a view on its accuracy or wisdom. The second paragraph was in effect included in a final equality impact assessment in January 2011 (see paragraph 41 of Mr M’s statement, on page 316 of the Upper Tribunal file). It is also clumsily drafted. I assume that the second sentence means that when an application is made for the Grant, the applicant is not asked to complete any kind of ethnic monitoring survey.

 

32. Mr Spicer next made much of paragraph 24 of Mr M’s statement (page 312). This paragraph summarised the contents of what I have referred to above as “the first table” and concluded that:

 

“From this data it appears that the change to the eligibility for [a Sure Start Maternity Grant] will have a greater impact than the average on some households of certain ethnicities (Pakistani or Bangladeshi) and a lesser impact than average on certain households of other ethnicities (Black Caribbean and Other Black).

 

33. Paragraphs 25 and 26 referred to limitations in the value of the data and paragraph 27 made the point that where there is a large family, there is a greater likelihood of younger siblings and, as such, a greater likelihood of the availability of suitable items for an additional new baby (page 312). I just make the obvious comment that there is a greater likelihood of such items being worn out or damaged

 

34. Mr Spicer argued that paragraph 24 shows that officials now believed that the changes would have a discriminatory effect but had not brought this revised view to the attention of the Secretary of State (or that if they had done so, the Secretary of State had not gone on to consider ways of avoiding this). He noted the Secretary of State’s supplementary written submission to the First-tier Tribunal (page 178 of the Upper Tribunal file):

 

“It is the Secretary of State’s position that the legislative change has no greater impact upon families belonging to certain ethnic groups. Those affected by the policy are people who already have one child, so the policy does not target larger families and ethnic minorities but all families who already have one child. It is incorrect to say that families belonging to certain ethnic groups are more likely already to have one child, so it is incorrect to conclude that they are victims of indirect discrimination. Whether a family has 2 children or several, the policy rationale holds good equally i.e. that, having received financial support from the state to buy one lot of baby things, an individual should have retained them for the use of future children”.

 

35. I am bound to say that much of this strikes me as ingenuous, if not illogical, but it is not the wisdom of the Secretary of State’s policy that is in issue, but whether he complied with his duty under section 71. Mr Spicer deduced that he had not. He described the equality impact assessments as “woefully inadequate” because they “merely asserted” that the data were inconclusive (which I agree they were) when it was apparent to officials from the same data that the policy would (my emphasis) have a discriminatory effect.

 

36. I do not read paragraph 24 of Mr M’s statement as indicating a change of view or an acceptance that the amendments would have a disproportionate impact on particular ethnic groups. Although he says that from the data “this appears” to be the case, he made a great deal of the limitations on the value of the data and I have referred to this above.

 

37. Mr M stated in paragraph 33 of his statement:

 

“From the communication I have had with analysts, I understand that had more relevant data been available at the time it would have been used. The only alternative data that [have] been suggested is [in] the Family and Children Survey (FACS). Although the Family Resource Survey (FRS) and the FACS may have provided date on family size, this would have been for the general population and that there are likely to be significant differences between the general population and those who are likely to be eligible for [Sure Start Maternity Grant] … (for example … on a very low income).

 

He also referred to the small sample sizes in those particular surveys - 20,000 households in the 2011/12 FRS and 5,786 responses in the 2008 FACS (published 2010).

 

The Agreed Positions

 

38. In a written note Mr Hare helpfully set out a number of propositions that appeared to be agreed between the parties, and I summarise them without reference to the numerous authorities cited by him:

 

-          There is no requirement to carry out an equality impact assessment

-          The section 71 duty is of substance and not of form and not a mere box-ticking exercise.

-          The content of the section 71 duty depends on the particular context in which it arises.

-          It is a duty of substance but not of outcome. If due regard has been had the question of whether or not to proceed with the decision is for (in this case) the Secretary of State.

-          The public sector equality duty is not a back door by which challenges to the merits of decisions may be made.

-          The court should not micro-manage the equality impact assessment process.

 

The Secretary of State’s Arguments

 

39. Mr Hare argued for the Secretary of State that although the duty to acquire information may mean that further consultation is required, that happened in this case through the Social Security Advisory Committee. He referred to the extract from Hurley, cited above. The particular context in which the amendments arose had to be considered. This included the fact that they were part of the new government’s emergency budget in June 2010 and that budget reduction is a matter of high policy. The fact that the cost of the payments being removed by the amendments was £1.4 million weekly imposed some urgency on implementation and limited the time that could properly be taken to acquire further information.

 

40. Mr Hare also argued the impact on certain ethnic minorities was limited. It was greater on some than on others and even then not very great. I do not really understand this argument. If the data were incomplete and not reliable for the purpose (which is a large part of the Secretary of State’s case), then relying on what it is said was shown does not take matters very far. Also, if there was a discriminatory effect (even if it was to differential extents), there was a duty on the Secretary of State to try to eliminate it.

 

41. He argued that the amendments related to a one-off payment. Compared with a benefit paid weekly, this would have a limited impact, even on poor households. I must say that I find it difficult to understand how the withdrawal of even a one-off payment of £500 per child to a poor family can be said to have such a “limited” impact.

 

42. In response to the claimant’s case Mr Hare argued that it was not the case that no conclusions could be drawn from the data, but that there are limitations to it. (That must be correct as far as it goes, but I still understand the evidence to be that relevant conclusions cannot be definitively drawn).

 

43. He said that it was really not sustainable on the evidence to argue, as Mr Spicer had done, that officials came to believe that the changes would have a discriminatory effect but had not brought this revised view to the attention of the Secretary of State or that if they had done so, the Secretary of State had not gone on to consider ways of avoiding this. There is no reason to believe that there could have been a different outcome, because of the “pressing imperative of reducing public expenditure”. The claimant had not produced any data and had made no suggestion as to how the impact on certain ethnic groups could be mitigated while still achieving the policy objective. Ruling out exemptions on the basis of ethnicity, the only alternative that would meet the appellant’s case would be to have not introduced the change at all.

 

44. Mr Spicer responded that there could have been a discretionary fund to make grants available to avoid hardship for large families, for example where baby items were worn out.

 

Conclusions

 

45. I am not being asked to consider whether the relevant amendments or the policy behind them led to a difference in treatment which is unlawfully discriminatory contrary to the Human Rights Act 1998 or whether they can be justified in that context. I am being asked to decide whether the Secretary of State complied with the public sector equality duty in section 71 of the Race Relations Act 1976 as amended.

 

46. A major problem is that I do not find much of the arguments for either party to be very convincing. The major plank of the claimant’s argument is that paragraph 24 of Mr D’s statement shows that officials came to believe that the changes would have a discriminatory effect but had not brought this revised view to the attention of the Secretary of State (or that if they had done so, the Secretary of State had not gone on to consider ways of avoiding this).

 

47. I cannot read paragraph 24 as saying what the appellant suggests. I read it as acknowledging that the data appear to show a discriminatory effect but that this is all in the context of the inadequacy of the data to which I have referred several times above. The report of the Social Security Advisory Committee does not take his argument much further. It made assumptions (or had “expectations”) about the differential impact on families of particular descriptions, not based on any real evidence. It referred to the need for “bespoke analysis” of other data before conclusions could be drawn, and it referred to its respondents as taking discrimination as being “self-evident” (which must mean, without any real evidence).

 

48. On the other hand the Secretary of State’s argument has relied on a certain amount of speculation, disingenuous argument, the fact that the matter had been referred to the Social Security Advisory Committee, apparently irrespective of the report from that Committee, and a certain inconsistency in attitude to the significance of what I have referred to as the first table.

 

49. However, the question to be answered is whether the Secretary of State “had regard” to the need to eliminate unlawful discrimination and to promote equality of opportunity. It is clear that the overwhelming priority of the Secretary of State was to cut public expenditure. In doing so, did he rigorously consider the duty and have a proper appreciation of the potential impact of the decision on equality objectives?

 

50. It is legitimate to take account of the fact that delaying implementation of the amendments by, say, as little as a month so that there could be a search for further data or statistical analysis, could cost nearly £6 million. This would be enough to save the jobs of perhaps 150 public servants or teachers for a year. The choice between such policy options is precisely one that is for ministers (accountable to parliament and the electorate) to make and for which they should carry the can, and not for unelected and unaccountable judges.

 

51. It is obviously not the case that the Secretary of State totally failed to address his mind at all to the issue of potential discrimination. The question is whether he had done enough by carrying out both an initial and a final equality impact assessment, by considering the data that it did consider, and by giving a considered response to the Social Security Advisory Committee report. Notwithstanding the failure by the Secretary of State to seek further information, in the particular circumstances of the amendments to the regulations in this case I am (just about) not persuaded that the Secretary of State was in breach of the public sector equality duty or that the amendments were ultra vires. 

 

 

H. Levenson

Judge of the Upper Tribunal

 

26^th June 2014