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R (Brown) case

R (Brown) -v- Secretary of State Work & Pensions & Secretary of State Business, Enterprise & Regulatory Reform

What you need to know

R (Brown) -v- Secretary of State for Work & Pensions & the Secretary of State for Business, Enterprise and Regulatory Reform [2008] EWHC 3158 (Admin)

This case was an application for judicial review to the Divisional Court. The subject of the challenge was a proposed programme of Post Office closures around the county of Sussex and the town of Hastings, where the applicant, Mrs. Brown, lived.

The Court noted the reasons for the proposals: “the advent of modern technology, the changing habits of the public and the fact that the Post Office network has made vast losses for years has made closures inevitable.”

The equality aspect to the case was the disability equality duty under Section 49A(1) of the Disability Discrimination Act 1995 (i.e. a predecessor to the current equality duty contained in Section 149, Equality Act 2010). There was evidence regarding the potential for adverse equality impacts on disabled people. For example, the Court was told that in February 2005 a National Audit Office report had noted that “vulnerable people (for example the elderly and those lacking mobility) tend to rely more heavily on Post Offices and are least able to adapt if their local Post Office closes”.

The equality duty challenge lay against the Secretary of State for Business, Enterprise and Regulatory Reform (SSBERR). This Minister and his department led the government’s review of the Post Office network, which gave rise to the proposed programme of closures. Significantly, before reaching its final decision, SSBERR held a wide public consultation exercise about its proposals. A large number of organisations representing disabled people and older people, such as RNIB and Age Concern, responded to this.

The equality duty challenge alleged that the Minister had failed to carry out a disability equality impact assessment and that he also failed to have due regard to the need to promote equality of opportunity between people who are disabled and those who are not disabled when making his final decision regarding the Post Office closure programme.

The Decision
The judgment was unanimous and was delivered by Lord Justice Aikens. In his judgement, he described the nature and extent of the disability equality duty. In doing so, he adopted the preceding equality duty case law, especially the case of Baker, and he gave guidance on how to comply with the duty – this guidance has since become known as the Brown principles. The judgment touched on several different matters, and the main points are summarised below.


A. Meaning of due regard

On this issue, the Court adopted and followed the Court of Appeal’s opinion in the race equality case Baker. The Court said:

81.  …as [the Court of Appeal] held [in Baker] in relation to [the similar race equality duty], that the imposition of a duty to have due regard to the various identified needs does not impose a duty to achieve results. It is a duty to have due regard to the need to achieve the identified goals. This is a vital distinction.

82.  What is meant by “due regard”? [The Court of Appeal] stated, in the same paragraph in Baker that “due regard”…meant 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 same principle applies here. There must, therefore, be a proper regard for all the goals that are set out in section 49A (1)…, in the context of the function that is being exercised at the time by the public authority. At the same time, the public authority must also pay regard to any countervailing factors which, in the context of the function being exercised, it is proper and reasonable for the public authority to consider. What the relevant countervailing factors are will depend on the function being exercised and all the circumstances that impinge upon it. Clearly, economic and practical factors will often be important. Moreover, 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: see [the Court of Appeal’s] judgment in Baker…


B.  The Brown principles

These are a judicial guide on how to comply with the general “due regard” duties. The principles are set out in paragraphs 90 to 96 of the judgment and must be read in conjunction with the Court’s preceding comments about the meaning of “due regard”:

90.  …how, in practice, does the public authority fulfil its duty to have “due regard” to the identified goals that are set out in section 49A (1)? An examination of the cases to which we were referred suggests that the following general principles can be tentatively put forward. First, those in the public authority who have to take decisions that do or might affect disabled people must be made aware of their duty to have “due regard” to the identified goals...Thus, an incomplete or erroneous appreciation of the duties will mean that “due regard” has not been given to them…

91. Secondly, the “due regard” duty must be fulfilled before and at the time that a particular policy that will or might affect disabled people is being considered by the public authority in question. It involves a conscious approach and state of mind…Attempts to justify a decision as being consistent with the exercise of the duty when it was not, in fact, considered before the decision, are not enough to discharge the duty…

92. Thirdly, the duty must be exercised in substance, with rigour and with an open mind. The duty has to be integrated within the discharge of the public functions of the authority. It is not a question of “ticking boxes”…

93.  However, the fact that the public authority has not mentioned specifically section 49A(1) in carrying out the particular function where it has to have “due regard” to the needs set out in the section is not determinative of whether the duty under the statute has been performed…But it is good practice for the policy or decision maker to make reference to the provision and any code or other non–statutory guidance in all cases where section 49A(1) is in play. “In that way the [policy or] decision maker is more likely to ensure that the relevant factors are taken into account and the scope for argument as to whether the duty has been performed will be reduced”: [i.e. a quote from Dyson LJ in R (Baker)…].

94.  Fourthly, the duty imposed on public authorities that are subject to the section 49A (1) duty is a non–delegable duty. The duty will always remain on the public authority charged with it. In practice another body may actually carry out practical steps to fulfil a policy stated by a public authority that is charged with the section 49A (1) duty. In those circumstances the duty to have “due regard” to the needs identified will only be fulfilled by the relevant public authority if (1) it appoints a third party that is capable of fulfilling the “due regard” duty and is willing to do so; and (2) the public authority maintains a proper supervision over the third party to ensure it carries out its “due regard” duty…

95.  Fifthly, (and obviously), the duty is a continuing one.

96. Sixthly, it is good practice for those exercising public functions in public authorities to keep an adequate record showing that they had actually considered their disability equality duties and pondered relevant questions. Proper record-keeping encourages transparency and will discipline those carrying out the relevant function to undertake their disability equality duties conscientiously. 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 by section 49A (1)…


C.  The final outcome

The Court concluded that SSBERR had not breached the equality duties and took the view that SSBERR had complied with the duties in substance. For example, SSBERR did consider whether to do an EQIA, but as the Court noted, reasonably and rationally concluded that one would not assist in formulating the policy in question. This was because SSBERR took account of a range of other relevant information about the disability equality implications of the policy, including responses from the consultation exercise that had been separately conducted, independently of an EQIA process. This factor also constituted evidence proving that SSBERR had given “due regard” to the disability equality issue.

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