Just before Christmas, the High Court in London issued a timely reminder to local authorities and other public bodies on the importance of taking their equality duties into account visibly and clearly when reaching relevant decisions.
In the case before Judge Mackie QC (R (on the application of Chavda etc) v. Harrow LBC, decision of 20 December 2007), the claimants applied for judicial review of the council's decision to restrict adult care service to people with critical needs. The council decided that, owing to financial constraints, it would limit provision of care services to people with need categorised as critical under the applicable guidance. As part of the decision-making process, an equalities impact assessment was made and a report prepared for the council's cabinet. The report addressed different groups of service users and found a risk of impact on various individuals, but did not address the disability equality duty owed by the council under s.49A of the Disability Discrimination Act 1995 (i.e. to have due regard to the matters stated in that section when exercising its functions). Instead, the report simply stated that implementing the proposal could result in potential conflict with the 1995 Act.
The court granted the application for judicial review, holding that the council had failed in its duty under s.49A. In reaching this view, the judge made it clear that it was essential that this duty and its implications should have been explicitly drawn to the attention of the decision makers who should have been informed, not just of the disabled as an issue, but of the particular obligations that the law imposed. The oblique references to potential conflict with the 1995 Act did not go far enough and did not give a busy councillor any idea of the serious duties imposed by the Act. Consequently, the council could not and did not weigh matters properly in the balance. In a memorable passage from his ruling, the judge noted: "An important reason why the laws of discrimination have moved from derision to acceptance to respect over the last three decades has been the recognition of the importance, not only of respecting rights, but also of doing so visibly and clearly by recording the fact".
The employment team at Shepherd and Wedderburn has expertise in all areas of disability discrimination law. We regularly provide advice to clients on relevant issues, including discrimination claims, policies and contracts. We also provide training to clients in respect of their duties under the Disability Discrimination Act 1995.
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