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.
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.”
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.”
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.
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.”