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19 Jul 19
Public Sector Equality Duty – ‘proper and conscious consideration’

This article was first published on Lexis®PSL Local Government on 10 July 2019. Click for a free trial of Lexis®PSL.

Local Government analysis: Lucy O’Brien, specialist public law solicitor and Michael Imperato, Partner and Head of the Public Law Team, both at Watkins & Gunn, examine the case of R (on the application of Williams) v Caerphilly County Borough Council, which considered the discharge of obligations under the public sector equality duty.

R (on the application of Williams) v Caerphilly County Borough Council [2019] EWHC 1618 (Admin), [2019] All ER (D) 29 (Jul)

What are the practical implications of this decision?

The decision to close the Pontllanfraith Leisure Centre was quashed because the Caerphilly County Borough Council (the Council) had not discharged its obligations under section 149(1) of the Equality Act 2010 (EqA 2010).  The question was whether the local authority had consciously and properly considered the public sector equality duty criteria.  The duty is personal to the decision maker who must consciously direct his or her mind to the obligations.  The exercise is a matter of substance which must be undertaken with rigour, so that there is a proper and conscious focus on the statutory criteria and proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them.  

The key issue was not whether a formal equality impact assessment (EIA) was undertaken, the issue is the question of substance – was there proper and conscious consideration of the public secotry equality duty criteria?  This could not be made out from the evidence of the assessment made in 2017 as its Sport and Active Recreation Strategy for 2019-2020 (the strategy) decision was a decision on generic matters.  It did not engage with the possible consequences of the closure of Pontllanfraith Leisure Centre. 

What was the background to the case?

The claimant, Shane Williams, was a user of his local Leisure Centre at Pontllanfraith near Caerphilly, South Wales.  He challenged two decisions taken by the defendant, the Council.  The first was taken by the Council’s cabinet on 14 November 2018 to adopt the strategy.  The second was taken by the Council’s cabinet on 10 April 2019 to implement the strategy by closing Pontllanfraith Leisure Centre.  

The Pontllanfraith Leisure Centre closure had been the subject of public consultation in October and November 2017.  The cabinet took a closure decision at a meeting on 13 December 2017.  However, following reconsideration at the request of the Scrutiny Committee, and a threatened legal challenge, the cabinet decided on 28 March 2018 to defer the closure, pending the decision on whether or not to adopt the strategy. 

What did the court decide regarding the grounds of challenge?

Ground One

The first ground of challenge was that the strategy decision was not within the authority of the Council’s cabinet to take because it was a decision that should have been taken by the full Council as it was ‘concerned with the authority’s budget, or their borrowing or capital expenditure’ by reason of the provision of the Local Authorities (Executive Arrangements)(Functions and Responsibilities)(Wales) Regulations 2007, SI 2207/339

It was held that, in adopting the strategy, the Council was lawfully discharging its function under section 111 of the Local Government Act 1972.  The discharge of that function was not concerned with budget, borrowing or capital expenditure.  Further, the words ‘concerned with’ have a flexible meaning. 

Ground Two

The second ground was that the strategy decision was unlawful because it was taken without information as to the cost of implementation.  In particular, there was no specific information about the cost of establishing the four strategic leisure centres proposed under the strategy.  

However, the court held that the strategy decision did not commit the Council to any specific expenditure and this challenge failed.  

Ground Three

The third ground of challenge was that the strategy decision was unlawful by reason of failures to comply with obligations under section 2(1) of the Local Government (Wales) Measure 2009 (the 2009 Measure).  The 2009 Measure obliged the local authority to secure continuous improvement in the exercise of its functions, and the 2009 Measure, s2(2)(f) obliged it to have regard to the need to improve the exercise of its functions in terms of efficiency.  The claimant argued that the Council couldn’t have complied with the improvement obligation as regards efficiency if it has no information about the cost of implementing the strategy.  Similarly, the consultation was not adequate to meet the 2009 Measure, s5 consultation obligation because it included no relevant financial information. 

The court held that the 2009 Measure, s 2(1) duty obliged the local authority to put in place free-standing measures to improve its decision-making processes.  That requirement did not apply to every strategic decision but it was aimed only at arrangements or the improvement of the exercise of its functions.  The strategy was not such an arrangement and this ground of challenge failed. 

An important side issue in this ground was the Council’s argument that, following the enactment of the Well-being of Future Generations (Wales) Act 2015, the 2009 Measure, Pt 1 was redundant.  However, the court held that was not so and the 2009 Measure remained in force. 

Ground Four – The Public Sector Equality Duty 

This was a challenge to the decision taken by the cabinet at its meeting on 10 April 2019 to close the Pontllanfraith Leisure Centre on 30 June 2019.  The claimant’s contention was that the Council did not meet its obligations under EqA 2010, s 149 (1)

The public sector equality duty (PSED) at EqA 2010, s 149(1) requires the public authorities in the exercise of their function to have:

‘due regard to the need to – (a) eliminate discrimination…prohibited by or under [EqA 2010], (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it, [and] (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it’. 

EqA 2010, ss 149(3),(4) further explain the nature of due regard for the advancement of equality and opportunity.  

The Council’s case was that an EIA taken in November 2018 relating to the strategy, an EIA undertaken in 2017 and the commentary in the Officer’s Report prepared for the 10 April 2019 cabinet meeting were sufficient to comply with the duty.  

The court disagreed and found that the decision to close the Pontllanfraith Leisure Centre did not comply with the requirements of EqA 2010, s 149(1).  The most pertinent protected characteristics in the decision to close the centre were age and disability, and the most likely disadvantage would arise from the difficulties that some older or disabled persons would face when trying to get to alternative facilities.  The Council had not assessed the new travelling distances from that perspective.  

Ground Five

The fifth ground the claimant advanced, but failed on, was the failure of the Council to take account of a relevant consideration that there was a possibility of a community asset transfer of Pontllanfraith Leisure Centre, as a going concern, to a community group.

The court found that the fact that the possibility of community asset transfer was raised in the consultation response did not oblige the Council to take that possibility further.  The fact that the Council did not pursue the possibility of community asset transfer did not render the closure decision unlawful. 

Interviewed by Alex Heshmaty.  

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