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Toner case

Re Toner [2017] - Section 75 and developing a public realm scheme in Lisburn

What you need to know

 
Re Toner [2017] - Section 75 and developing a public realm scheme in Lisburn

Background

This case was a judicial review by the High Court in Belfast and concerned a challenge from a disabled person, Ms Joanna Toner, against the decision of Lisburn City Council to implement a Public Realm Scheme in its city centre.

Ms Toner is blind and is accompanied by a guide dog. Her legal challenge concerned the disability part of Section 75, the duty which requires the Council when developing the Public Realm Scheme to have due regard to the need to promote equality of opportunity between persons with a disability and persons without.1

The main allegation was that kerb heights of less than 60mm impede the ability of visually impaired people to navigate safely around the city centre and that the Council did not have due regard to her objections, those of other visually impaired people, and to the supporting research evidence that they had supplied to the Council when the proposals for the scheme were under consideration and later.

 
Key section 75 learning points 

In this judicial review, the High Court found that Lisburn City Council had unlawfully breached its Section 75 duty when it developed its Public Realm Scheme.

The principles applied by the judge in determining the Section 75 challenge derive mainly from a large body of case law from the courts of England and Wales.2  The principles, which are listed below, derive from numerous cases including Baker, Brown and Bracking.

1. The Section 75 duty is non-delegable

The Court held that compliance with the Section 75 duty would have required the actual decision-makers, i.e. the Councillors and not anyone else, such as the Council’s officers or its external consultants, to have considered the likely impact of the Public Realm Scheme on sight-impaired people. It thereby required them to consider the research evidence that was available before they made their final decision to accept the Scheme’s design plans and before the building work began.

Although there was evidence that an external consultant had considered the objections of some sight-impaired people and the supporting research that they had supplied, there was no evidence that any of this information had been supplied to the Councillors and no evidence that they themselves had considered it at the key point-in-time. 

In the absence of any such evidence, the Court could not infer that the Councillors knew or considered what the external consultant or its own officers knew or considered. For the Court, that was the crucial flaw that established a breach of the Section 75 duty.

The Court noted, that it would not have been enough simply to pass the Research Report to the Councillors. There would also have been an onus on Council officers to analyse the findings in the context of the Section 75 duty and to advise the Councillors accordingly. 

The case law on the non-delegation principle shows, the officers “must not simply tell members what they want to hear but…be rigorous in both inquiring and reporting to them” on the nature and scope of their duty3. Decision-makers, must be properly advised so that they are placed in a position that enables them to conscientiously consider the impact of the proposals on affected groups. They need to focus on the statutory goal; i.e. the need to promote equality of opportunity and there ought to be evidence that they did so.
 

2. The continuing nature of the section 75 duty

The Court found that the Councillors breached the Section 75 duty when a further opportunity arose in 2014 to reconsider their earlier decision. On this occasion, the Court held that they had not given proper consideration to the key element of the Section 75 duty; i.e. the need to promote equality of opportunity between persons with a disability and persons without.

The Court gave credit to the Council for reacting to the information and views of the disabled persons’ representatives by being open to referring the matter to the Councillors for further consideration. However, the Court criticised the Council for not seeming “to have been alive to [the] continuing duty under section 75. At this stage…there is no evidence of substance to suggest that the problem was being identified as related to the performance of the public sector equality duty.”
 

3. Complying with Equality Scheme arrangements and paying the appropriate level of regard

The Court noted that the Council conducted a Section 75 screening exercise in relation to the Public Realm Scheme and decided to “screen out” the proposal. The Court was informed “the need for EIA [Equality Impact Assessment] was screened out because of the absence of material from the consultation exercise which highlighted any significant impact of the scheme on the position of the disabled.”
 
The Court did not criticise the decision not to conduct an EIA but criticised the screening exercise as being “not worthy of the name”. The Court stated that if the right question had been asked “in relation to the impact of the proposals on the position of the blind and partially sighted, it is difficult to see how this would not have led to a consideration by the Council of the UCL research……..”

This was the critical time period for complying with the Section 75 duty – the duty must be undertaken before and at the time when decisions which could have an impact on the promotion of equality of opportunity are being considered and taken, and not afterwards. The examination of relevant questions and issues that forms part of a screening exercise may be enough to ensure compliance with the duty, but only so long as it does rigorously and open-mindedly examine those questions and issues: a screening exercise must not merely “tick boxes”.

Having found that the Council was in breach of the Section 75 duty on the second occasion, the Court exercised its discretion to quash the decision taken by the Councillors at that time to continue with the Scheme unchanged with kerb heights of 30mm. In effect, the decision was sent back to the Council to be re-considered.
 

The Court stated:

“The matter should have been revisited with the public sector equality duty in mind and Council officials should have prepared for councillors’ advice in relation to the performance by it of its duties in this regard. A conscious approach to section 75 was required at this stage and officials should have appreciated the need for councillors to receive advice on the equality aspect of the matter now before them, which would have included or be likely to include an analysis of the UCL research and an assessment of the impact of the 30mm kerbs on the position of blind or partially sighted persons.”

The Court added: “[The duty] still can be performed. If the duty was properly performed, it is conceivable that it may make a difference to the outcome, though equally the [Council] may ultimately reach the same decision as before. It is a matter for them, subject to the lawful performance of the duty.”

 

4. Maintaining Records

The Court’s judgment highlights the importance of public authorities keeping good records of their decision-making processes to enable them to demonstrate compliance with its statutory duties.
 

5. Remedy

Having found that the Council was in breach of its duty under Section 75, the Court exercised its discretion to quash the decisions taken by the Council in June and October 2014 to continue with the Public Realm Scheme with kerb heights of 30mm. In the Court’s view this would “open the way for the matter to be reconsidered, in the manner already described, with full compliance with the section 75 duty.”
 

The Court further noted:

“[The duty] still can be performed. If the duty was properly performed, it is conceivable that it may make a difference to the outcome, though equally the [Council and its committee] may ultimately reach the same decision as before. It is a matter for them, subject to the lawful performance of the duty.”

 
 

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1 The challenge was brought on a number of traditional judicial review grounds, such as an allegation that there had been a flawed consultation process prior to the decision being made and that the decision itself was irrational (i.e. Wednesbury unreasonable) and in breach of the Human Rights Act. The challenges on those grounds all failed for reasons we do not need to go into here
2 In relation to the duty imposed by Section 149, Equality Act 2010.
3 See the comments of Lord Justice Sedley in the case of R (Domb) -v- London Borough of Hammersmith & Fulham [2009] EWCA Civ 941

 
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