Skip to main content
In order to provide complete functionality, this web site needs your explicit consent to store browser cookies. If you don't allow cookies, you may not be able to use certain features of the web site including but not limited to: log in, buy products, see personalized content, switch between site cultures. It is recommended that you allow all cookies.
Want to stay on the right side of the law? We support businesses and public authorities and help them to promote good practice.

R (Bracking & others) case

R (Bracking & others) -v- Secretary of State

for Work & Pensions

What you need to know

R (Bracking & others) -v- Secretary of State for Work & Pensions [2013] 

The applicants in this judicial review sought to quash a decision by the Minister for Disabled People (within the Department of Work & Pensions (DWP)) to close the Independent Living Fund (“ILF”). The ILF is a trust fund that was established by the DWP. It operates in partnership with local authorities to devise and provide joint care packages of services and direct payments to assist disabled persons to lead independent lives. An equality impact assessment [EQIA] and public consultation exercise were carried out before the decision was taken.

The judge who heard the case at first instance dismissed the application. He found, amongst other things, that the Minister had complied with the Public Sector Equality Duty (“PSED”) under Section 149, Equality Act 2010  when making her decision.

The applicants appealed. The appeal proceeded on two grounds; i.e. (a) that the consultation exercise that preceded the decision was flawed and did not meet public law standards, and (b) that the Minister failed to comply with the PSED when making her decision.

The Decision of the Appeal Court

The Court of Appeal rejected the first ground of challenge but found, contrary to the initial trial judge, that the Minister had not adequately complied with the PSED.

Lord Justice McCombe gave the main judgement and he said this:

60.    “In the end, drawing together the principles and the rival arguments, it seems to me that the 2010 Act imposes a heavy burden upon public authorities in discharging the PSED and in ensuring that there is evidence available, if necessary, to demonstrate that discharge. It seems to have been the intention of Parliament that these considerations of equality of opportunity (where they arise) are now to be placed at the centre of formulation of policy by all public authorities, side by side with all other pressing circumstances of whatever magnitude.

61.    It is for this reason that advance consideration has to be given to these issues and they have to be an integral part of the mechanisms of government, to paraphrase slightly the words of Arden LJ in the Elias case. There is a need for a “conscious approach” and the duty must be exercised “in substance, with rigour and with an open mind” (per Aikens LJ in Brown). In the absence of evidence of a “structured attempt to focus upon the details of equality issues” (per my Lord, Elias LJ in Hurley & Moore) a decision maker is likely to be in difficulties if his or her subsequent decision is challenged.”


R (Aspinall & others) v Secretary of State for Work & Pensions [2014]

Having lost the public sector equality duty (PSED) argument in Bracking, the Department re-considered its decision to close the Independent Living Fund. However, the outcome of that exercise was a fresh decision to proceed with its closure. That decision was in turn challenged as being taken in breach of the PSED in the case of Aspinall.

The two severely disabled claimants argued that the Minister had not been given adequate information to assess properly the effect of the closure.

However, Mrs Justice Andrews rejected the claim, saying there had been no breach of the PSED on this occasion.

The High Court judge noted that “the Minister was sufficiently aware of the very real adverse consequences which closing the fund would have on the lives of many of the more disabled."

She said: “In my judgment, on the evidence before the court on this occasion, this particular Minister was very well aware of those consequences and of the practical effect that closure of the fund and the consequential reduction in funding provided through LA support was going to have on the ability of many ILF users to live independent lives, including (but not limited to) living in their own homes. He did not need to know precisely how many of them were likely to be affected or to carry out a quantitative assessment of the impact. It sufficed that he knew, as he did, that the impact would be substantial and significant.”


< Section 75 duties
< Public Authorities
Case Law >
Legal cases 1, 2, 3, _, 56   
Print All