A recent decision of the Court of Session provides guidance to Local Authorities on the application of their duties under s149 of the Equality Act 2010 (the “EA 2010”) and the Equality Act (Specific Duties) (Scotland) Regulations 2012/162) (the “Specific Duty Regulations”). It underlines that the duty under s149 of the EA 2010 should be exercised with rigour and an open mind, and not be approached as a “tick box exercise”.

Background

The case concerns a decision to close the Kyle Adult Care Centre by South Ayrshire Council. Mr McHattie (the “Petitioner”) has a 32-year-old son with a number of significant health issues who attended the Kyle Centre 5 days a week and had done so for the past 13 years. Due to these health issues, outings to the wider community proved challenging and therefore the Petitioner’s son relied on the facilities provided by the care centre and had developed important relationships with the staff.

The closure of the Kyle Centre was suggested by the South Ayrshire Health and Social Care Partnership’s Adult Learning Disability Strategy 2017-2023. It was envisaged that various consultations would take place prior to any decisions being made. The primary decision to close the Kyle Centre appears to have made by South Ayrshire Integrated Joint Board (IJB) on 26 June 2019 where it found (after limited consultation with the Council, no consultation with carers and users of the Kyle Centre and no Equality Impact Assessment (EIA)) that the services provided by the Kyle Centre were “regarded as not fit for modern day service provision”. Correspondence from the Council was received by the Petitioner’s son on 10 July 2019 advising that the Kyle Centre’s future was under review however, any changes would be fully discussed with him. The users of the centre were “kept in the dark” about the decision to close the centre on 26 June 2019 and it wasn’t until September 2019 that it was confirmed to them that it would be closed by Christmas.

The issues

The Petitioner, as guardian of his son, lodged a petition for judicial review and sought that the decision to close the Kyle Centre be reduced and for interim interdict and suspension. His main submissions supporting his objection to the closure of the Kyle Centre were:

  1. the Council had failed to carry out an EIA, as required by the EA 2010 and Specific Duty Regulations;
  2. he had a legitimate expectation that he would have been consulted on any proposal to close the Kyle Centre.

The issue for the court was therefore whether in taking the decision to close the Kyle Centre, the Council had acted illegally and, without conducting a proper consultation had “frustrated the legitimate expectations” of the Petitioner.

Failure to produce an EIA

Section 149 of the EA 2010 sets out the general duty placed on public sector entities to have regard to, among others, the elimination of differences between those in the protected group and those who do not share that protection through the promotion of policies. It is not solely about the prevention of discrimination. Regulation 5 of the Specific Duty Regulations places specific duties on Local Authorities, including assessing the impact of applying a proposed new or revised policy or practice against the overarching duty contained within section 149 of the EA 2010.

Lord Boyd considered there to be three aspects to the section 149 duty. First, the duty has to be fulfilled before a policy that might affect a particular class of protected persons is adopted and that “it is an essential preliminary to lawful decision making”. Second, the duty must be exercised in substance with rigour and an open mind and “is not a question of ticking boxes”. Finally, the section 149 duty placed on the local authority is of a continuing nature and due regard must be had during not only the evolution of a policy, but also through its implementation. Simply completing an EIA does not discharge the duty placed on the Local Authority.

In granting declarator, Lord Boyd noted that there was no properly minuted decision to close the Kyle Centre, only the meeting on 26 June 2019 which approved the budget for 2019-2020. This “effectively meant the closure of the Kyle Centre”, finding that “any member of the public…would be unable to ascertain that the IJB had taken such a decision.” Due to the failure to carry out an EIA on the effect of the closure of the Kyle Centre, it was found that the Council failed to carry out their duties under section 149 of the EA 2010.

It is not essential that an EIA be carried out: Lord Boyd accepted that a scoping exercise (as carried out by the Council) may have been sufficient had it not been carried out after the decision to close the Kyle Centre had been made. However, the scoping exercise had “all the hallmarks of a tick-box exercise” and did not discharge the duties under section 149 of the EA 2010.

Failure to consult

A duty of consultation exists at common law where there is a legitimate expectation to be consulted. In this instance, Lord Boyd was satisfied that the Petitioner had a legitimate expectation of consultation on the proposal to close the Kyle Centre as “his son had attended the Centre every day for 13 years. It was an integral part of his life. He and his parents relied on it”. The IJB’s decision making process on this matter was held to be ”fundamentally flawed” due to its failure to consult with persons who had a legitimate expectation of such consultation.

Decision

Lord Boyd reduced the Council’s decision to close the Kyle Centre. He also granted a declarator that the Council had acted unlawfully in reaching the decision to close the Kyle Centre in respect that the Council failed:

  1. in its duty to have regard to the need to advance equality between persons who share a relevant protected characteristic, namely a disability and persons who do not share that characteristic in terms of section 149 of the EA 2010 and;
  2. to consult with the Petitioner and other users, carers and guardians of users of the Kyle Centre who had a legitimate expectation to be consulted.

Co-authored by Nicholas Carroll.