Judicial Review (3)

In this lecture we focus on the topics of (1) the development of a duty to give reasons, and (2) judicial review of discretionary power in the form of what today is sometimes called ‘process review’.

1. Duty to give reasons

Intimately bound up with the quest for administrative rationality and legal control, and latterly with more rights-based approaches, the rise of reason-giving requirements at common law is emblematic of the broader development in judicial review. While the courts have stopped short of conjuring a general ‘duty to give reasons’, they have increasingly demanded reasons from decision-makers in a variety of contexts. And attention is again directed to the standard of review: what does the judge think are sufficient reasons in the particular case?

(1) Rationales

Reasons for reasons are not difficult to identify:

administrative discipline, encouraging careful deliberation and consistency citizen interest, satisfying a basic need for fair play appeal/review, facilitating checks (jr) for e.g. rationality and proportionality public confidence or legitimacy, promoting the sense of transparency

Here, we can see 2 things running in parallel. An explanation or part explanation of why the courts were wary in developing a duty to give reasons in days gone past for this whole idea in our constitutional culture of secrecy, and the development of a duty to give reason.

In seeking so to promote a culture of justification however, the judges cannot ignore a battery of counter-arguments or caveats. ‘The giving of reasons… may place an undue burden on decision-makers; demand an appearance of unanimity where there is diversity; call for the articulation of sometimes inexpressible value judgements; and offer an invitation to the captious to comb the reasons for previously unsuspected grounds of challenge’ (R v Higher Education Funding Council, ex p Institute of Dental Surgery [1994] 1 WLR 242 (Sedley J)).

In terms of procedural fairness, this again suggests an important element of ‘tailoring’. (i.e. we’re again pointed towards variable content) The idea that even where there is a duty to give reasons, the duty will have to be tailored to balance the interests of the individual on the one hand, and the administration on the other.

Alternatively, will judges resist the temptation of utilising the procedural veneer of reason-giving requirements as an ideal cover for substantive - merits - review?

(2) Case development

R v Civil Service Appeal Board ex parte Cunningham [1991] 4 ALL ER. 310 (CA)

This case was about the refusal to provide reasons for an abnormally low compensation award for unfair dismissal. Lord Donaldson felt that the board should have given outline reasons sufficient to show to what they were directing their mind and thereby indirectly showing not whether their decision was right or wrong, which is a matter solely for them to decide, but whether their decision was LAWFUL. Any other conclusion would reduce the board to the status of a free-wheeling palm tree. Furthermore, the lack of a right to appeal from the board’s determination was also viewed as an important factor grounding a reason-giving duty.

Thus, this case authoritatively established that, as part of the decision making process, the giving of reasons was ENCOMPASED by procedural fairness.

R. v. Secretary of State for the Home Department ex. p. Doody [1993] 3 W.L.R. 154 (Lord Mustill)

(recall, the case concerned the revocation of prison licenses)

Did not really push the boundaries – though not at present amounting to a general duty, there was nevertheless a perceptible trend towards an insistence on greater openness.

The liberty interest in this case was compelling:o The refusal to give reasons in this case was UNFAIR -> obviously a prisoner immediately

wants to know for how long he will be locked upo To mount an effective attack on the decision, given no more material than the facts of

the offence and the length of the penal element, the prisoner has virtually no means of ascertaining whether this is an instance where the decision making process has gone astray or not.

o Lord Mustill thinks it is important that there should be an effective means of detecting the kind of error which would entitle the court to intervene.

THEREFORE, in practice he regarded it as necessary that the reasoning of the Home Sec be disclosed.

R. v. Universities Funding Council ex. p. Institute of Dental Surgery [1994] 1 WLR 242

A challenge to university research assessment grading for unfairness due to lack of reasons was UNSUCCESSFUL. In this case however, Sedley J identified TWO CLASSES OF CASES founding the duty to give reasons:

Transaction-type cases like Doody where the nature and impact of the decision itself call for reasons as a ROUTINE aspect of procedural fairness (this case about academic judgment obviously does not fit)

Trigger factor type cases where the decision appears aberrant; that there is something peculiar to the decisions which in fairness, calls for reasons to be given (the present case may fit under this category but the problem is that the courts lacked precisely the expertise to judge whether such a decision was extraordinary or not)

R v Home Secretary, ex p Al Fayed [1997] 1 All ER 228

This case dealt with the interplay of common law and statute. In this case, two brothers were refused citizenship without prior notice of the minister’s concerns and without reasons for the decision being given to them.

S44(2) of the British Natioanlity Act 1981 provides that the Sec of State shall not be required to assign any reason for the relevant discretionary decision

In light of this provision, is there still a duty to give reasons? NO; but note that the CA considered that in the ABSENCE of this provision, there would have been a clear case of procedural unfairness, more especially because of the damage to reputation.

NOTE ALSO that while there was no duty to give reasons in this case, there was, however, still a duty to give NOTICE (which could be differentiated and thus it follows that it did not fall under the statutory prohibition) -> evidence of the momentum in favour of greater transparency in administrative decision taking.

R (Asha Foundation) v Millennium Commission [2003] EWCA Civ 88

This case is interesting because it makes you think about how far this duty can reasonably go. Here, it is a grant application to the millennium commission. The commission had a large sum of money to fund projects to mark the millennium. It had a series of lists of different categories you could apply for.

The Asha foundation brought forward an application after much correspondence with the millennium commission. In the relevant pot, there was around 20 million pounds available for distribution.

The commission which had been set up under statute was asked to consider when it was distributing funds, geographical distribution, distribution in favour of vulnerable grounds, considerations of ethnic diversity etc. The Asha foundation wanted to do a big project which would have taken up about half the funds in the relevant pot in a project around themes of multiculturalism. The millennium commission turned them down.

When they required why, they got a minimum statement of reasons back along the lines of we didn’t think that your proposal was good enough.

The Asha foundation went to court saying it’s not good enough cause we don’t know whether the millennium commission acted properly or not on the basis of that lack of reasons and this isn’t much good to us because, should we want to apply for public funding for this project in the future, we’ve got not feedback.

CA is clearly sympathetic but it can see the prob. At one level, this was a commission decision (so there might be varied reasons and it may not be easy to draw them out) but more importantly, the context was one of competition. It wasn’t that Asha’s application wasn’t any good. It was that it wasn’t good enough to beat the competition. And so how could u then give reasons for whyAasha lost unless u went into considerable details about the winners.

Burdensome and also raises issues about privacy and confidentiality.

Thus, the court took a restrictive approach to reasons here. It said u need divide the process into 2 stages.

- Threshold stage- Filter stage

Reasons would be required if Asha was ruled out at the preliminary stage as not being a fit and proper person. This goes to their reputation and to them personally and thus, they should get full reasons for that decision.

When it came to the filter stage (the competition), the reasons given could be bland and general.

Given the amount of competition for public funding, this realistically means that the rationale of administrative discipline for a requirement to give reasons is restricted, perhaps to a level some of us might be uncomfortable with.

R (Hassan) v Trade and Industry Secretary [2008] EWCA Civ 1311

This was an action brought by some Palestinians and was about the supply of military hardware to Israel. Hassan would like reasons as to why there is compliance in international law in supplying Israel with these weapons.

The decision turns on whether there is a duty of government, or of a select body such as a committee, to give information on request.

CA says there is no such general duty. It’s not for us the courts to conjure such a duty. If parliament wants to impose such a general duty or a general duty in certain circumstances, it’s for them to do so. Essentially when we talk about the giving of reasons our key focus is about decisions which alter the positions of individuals and not about such policy matters

2. ‘Process review’: the Wednesbury model of rationality

Now we move on and look at a classic area of JR, JR of the exercise of discretionary power.

When we look at statutes, look out for one of 2 words;

‘shall’ – which imposes a duty (i.e. a minister shall do this…)

‘may’ – notice that ‘may’ does two jobs. Consider a situation where a minister may make such payments to a particular fund as he thinks fit.

i. It empowers the minister to do it (gives him authority)ii. It gives him a discretion in the making of the payments

‘May’ means he can make them but doesn’t have to. ‘May’ in turn give him the authority to think abiut the different types of situations in which the minister might make those things.

Here, we are dealing with the way in which judges go about policing that discretion. In our system of parliamentary government, we know the executive dominates the HC. We often find the executive empowering itself via legislation. The use of the ‘may’ word preserves flexibility. The question then becomes whether the courts have a role to play in policing exercises of that discretion. If so, on what basis and how far can they go?

Clearly the judges have got to remember that they’re not the government and that in our constitution, it is for the government to make the major policy decisions as they are answerable to parliament.

Therefore, there are going to be constitutional limitations on how far the courts are going to push here. What those limitations are going to be will be controversial. In some areas we’ll find the courts taking a hands-off approach to it and once again more recently, we see a more aggressive approach and looking more closely at how discretion is exercised.

When we look at this area, the terminology we find creeping into contemporary writing is what we call process review. Tom Hickman in Public Law after the Human Rights Act (2010), pp 224, 226 gives a good definition of it.

(1) What is process review?

According to T. Hickman, Public Law after the Human Rights Act (2010), pp 224, 226:

Process review is judicial review of a decision on the basis that the decision has been reached in the wrong way, rather than that the outcome is contrary to some right, or is unreasonable, perverse or disproportionate. Process review is usually based on the doctrines of relevant and irrelevant considerations, retention and fettering of discretion, and the duty to supply adequate reasons….

It is worth being absolutely clear about the nature of procedural obligations with which we are here concerned. Both the common law and Convention rights [and EU Law] impose obligations of fairness on public authorities, such as rights to be heard, rights to make an effective challenge to a decision and rights to disclosure of information. We are not here concerned with these obligations. Such obligations are procedural obligations, in the sense that they impose obligations on public officials to ensure that individuals affected by their decisions are able to participate in (or at least know about) the decision being taken...

So Hickman is clear in distinguishing process review from procedural review. Process review is more about the steps the decision maker took in getting to their decisions.

For a commentator like Hickman, substantive review would be much more directed to the actual right itself or to the outcome that the decision maker reached.

This is a continuing theme in the cases. All these things overlap and this general idea of process review is useful in giving a sense of what we’re looking at.

It’s here we come back to a famous case. Wednesbury.

(2) ‘Good ole Wednesbury’

Here, children under 15 were not allowed to watch movies in a cinema on Sundays unless accompanied by an adult. Note at the time, Sundays were very much a day for staying at home with the family so the LA implemented this to preserve certain cultural values. The question was whether this could be challenged. Here, the discretion of the LA under the framework was upheld and the challenge failed.

Famously from the case, we have Wednesbury unreasonableness which has been the dominant CL approach to the control of the exercise of discretionary powers under the general rubric of process review for some 60 years.

Lord Greene’s judgement is commonly read as using the word ‘unreasonableness’ in two different ways:

First, as shorthand for a group of related and overlapping heads of review concerning the exercise of discretionary powers (the ‘umbrella’ sense of Wednesbury – where unreasonableness is the ‘umbrella’ which a number of grounds of jr, of the exercise of a discretion, come under); and,

Second, as an individual ground of review (the ‘substantive’ sense of a ‘safety net’ – where we say a decision is so unreasonable that no reasonable PA could have made it).

Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB 223; Lord Greene:

The exercise of such a discretion must be a real exercise of the discretion.

If, in the statute conferring the discretion, there are to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters. Conversely, if the nature of the subject-matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, the authority must disregard those irrelevant collateral matters . . .

I am not sure myself whether the permissible grounds of attack cannot be defined under a single head. It has been perhaps a little bit confusing to find a series of grounds set out. Bad faith, dishonesty – those of course, stand by themselves – unreasonableness, attention given to extraneous circumstances, disregard of public policy and things like that have all been referred to, according to the facts of individual cases, as being matters which are relevant to the question. If they cannot all be confined under one head, they at any rate, I think, overlap to a very great extent. For instance, we have heard in this case a great deal about the meaning of the word 'unreasonable'…[a word which] has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a

discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short v. Poole Corporation [1926] Ch 66 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another . . .

Note however the propensity for overlap, including in terms of improper purpose/abuse of power or bad faith.

Also, take note that today, there is a larger emphasis on the ‘substantive’ sense of Wednesbury. It ties in with proportionality testing and indeed, many commentators have argued (and some judges expressed sympathy) that proportionality should replace the safety net meaning of Wednesbury. This hasn’t quite happened yet though.

(3) Wednesbury in its ‘general’ or ‘umbrella’ sense

Key aspects:

Relevant/irrelevant considerations (e.g. failure to take into account relevant considerations or taking into account irrelevant ones can be a ground for challenge)

Improper purpose/abuse of power Fettering discretion (if parliament gives you a discretion, you must consciously exercise it. It

must be a real exercise of that discretion. It mustn’t be fettered or given away) Bad faith

Classic authorities:

Padfield v. Minister of Agriculture, Fisheries and Food [1968] AC 997 (Lord Reid)

(note: this is the classic illustration of the umbrella sense of Wednesbury ‘unreasonableness’. It goes along with Ridge v Baldwin and Anisminic as the big trilogy of cases which started us on a more aggressive JR line)

This case had something to do with milk producers being forced to sell their goods to the Milk Marketing Board which periodically fixed prices for them. The minister was given a discretion – s19 of the Agricultural marketing Act 1958 provided that in case of dispute, complaints could be referred to a committee on investigation if the minister in any case so direct. On receipt of the committee’s report, the minister could revoke or amend the scheme if he thinks fit to do so after considering the report. Some dispute arose and the minister refused to refer the matter to the committee, on the basis that if

the complaints were upheld, he would be expected to give effect to the committee’s recommendations and he was unwilling to do so. Was he acting unreasonably?

Lord Reid (majority):

The minister has a duty to act if the scheme is contrary to what both the committee and the minister hold to be the public interest.

Which means that if a complaint emerged alleging that the board/scheme has so acted (contrary to the public interest), then the Act does impose a duty on the Minister to have it investigated. If he does not do that then he is rendering void a safeguard provided by the Act and depriving complainers of a remedy which I am satisfied parliament intended for them to have.

However, it is not necessary for the minister to give reasons for his decisions. As long as it is clear that the effect of his refusal has been to frustrate the policy and objects of the Act then his decision can be questioned by the courts (even if no reasons where given).

Lord Morris (dissenting):

The language in the statute is purely PERMISSIVE

*This case was controversial because the judges were accused of substituting their subjective views for those of the appointed decision maker = straying outside their constitutional function. Furthermore, the principles on which they operated were just as discretionary and unstructured as the discretions they purported to discipline. JR did not, in other words, measure up to the standards of rational decision-making imposed by the judges themselves on thee executive and administrators.

Here, the minister made it clear that in making a decision he was influenced by political considerations. Court said that those political considerations were irrelevant. You stick to the nature of the statutory scheme.

British Oxygen Co Ltd v Ministry of Technology [1970] 3 WLR 488 (Lord Reid)

With regards to Fettering discretion – the idea that if u have it, u mustn’t give it away and u must exercise it.

Where this really comes up is in schemes where a minister is given a discretion but there may or eg be thousands of cases and the thing the department wants him to do is create policy guidelines on how that discretion is going to be exercised.

In other words, in mass decision making you don’t want to reinvent the wheel in each case, you want them to have good policy guidance in how to exercise this discretion

Reid made it clear it was perfectly acceptable but the decision maker given a discretion must always be prepared to listen to the argument that an applicant is presenting an exceptional case. I.e. while such guidelines can be created, there must still be an element of flexibility.

This idea if a very important one but that’s sometimes difficult to hold to when more and more government decision making is being made via a computer. How in the face of increasingly sophisticated and complicated technology can you keep asserting that element of discretion? In practice, you’ll see the rule has weakened noticably in light of computer development

see Audit Commission v Ealing Borough Council [2005] EWCA Civ 556

AC was required to produce a report on its findings in relation to the performance of English local authorities in exercising their functions. In doing so, it relied on information from another body. Ealing LBC was notified that its performance was graded as ‘weak’ and applied for JR. by simply accepting the verdict of another body, did the AC fetter or unlawfully delegate its discretionary powers?

CA:

The principle that a body given a statutory power by parliament must exercise that power itself and not delegate its exercise to another is a well-established rule in admin law.

In this case, does adopting the professional assessment results of another body count as a breach of this rule?

No; the case was simply that the AC had itself decided to adopt certain principles for achieving its categorization of results.

Bromley LBC v Greater London Council [1983] AC 768 (Lord Diplock)

We see another head of JR here; so called breach of fiduciary duty. The argument is that a PA can by all means spend public money. But in so doing, it must do so sensibly and if you like in a broad sense, acting as a ‘trustee’ for the taxpayer. It can’t simply exclude from its mind the burden that it is putting on a taxpayer.

The Labour majority on the GLC had promised before the election to reduce bus and tube fares by 25%. This was done by a grant to the London Transport Executive enabling it to budget for a deficit. Bromley, a borough controlled by Conservatives, challenged the legality of the scheme. Lord Diplock drew on the equitable principle of fiduciary duty to prioritise the interests of taxpayers:

The conflicting interests which the GLC had to balance in deciding whether or not to go ahead with the fare reduction was between those of passengers and the taxpayers.

It is well established that a local authority owes a fiduciary duty to the taxpayers from whom it obtains its money.

He thinks that the GLC had a discretion as to the proportions in which that total financial burden should be allocated between passengers and the taxpayers. The question of the limits of this discretion does not arise in this case because the GLC so clearly was NOT acting within it – using the scheme they adopted, a 50m financial burden would be imposed on the ratepayers. This is clearly a thriftless use of the moneys obtained by the GLC from ratepayers and a deliberate failure to deploy to the best advantage the full financial resources available to it by avoiding any action that would involve forfeiting grants from central government funds. It was thus a breach

of fiduciary duty owed by GLC to the ratepayers; therefore the precept issued in pursuance to the decision was ultra vires = void.

Essentially, a supposed general principle of admin law (i.e. fiduciary duty) is introduced here as a ‘relevant consideration’ in the light of which statutory duty MUST be interpreted. Invoking the first principle of Wednesbury unreasonableness, Lord Diplock had actually turned it on its head. (substantive review but under the umbrella principle?)

This is a very controversial idea and is taken further in:

R. v. Secretary of State for Foreign Affairs ex p. World Development Movement [1995] 1 All ER 611

Involves overseas development and in particular, the government’s decision to help fund the building of a huge new hydroelectric dam in MY. MY government has been lobbying hard for this and the British government has obliged.

The people unhappy with the decision are those living in the area about to be flooded. The world development movement is a pressure group which campaigns for sustainable overseas development.

In particular they are concerned abbot loss of environment; the impact on ecology of overblown infrastructure projects. They challenge the minister for his grant of millions of pounds to MY govt. there are allegations in the background that this aid is being given as the MY government has agreed to buy large amounts of military equipment from British suppliers and this is a quid pro qou. (note that this is never proven but is hovering in the background)

Interesting from a doctrinal point of view is the way in which court approaches the question of relevant and irrelevant considerations. (Key CL idea from Wednusbury)

The wording of the statue is very general and enables minister to make payments for the purpose of overseas developments. WDM says that the courts should read words into that statute. On the basis that such projects should be economically and environmentally sustainable.

The key question is the extent of creativity courts are going to show when interpreting “statutes”. Are they going to stick rigidly to wording of it or are they prepared to read things in and on that basis, then test the activities accordingly.

Clearly if they go down the second route, they are significantly expanding scope for r in this area and strengthening their own position.

Ultimately, the court does precisely that. It reads important qualifying words into the statute and then finds fault with the decision as a result of those words read in. Very striking decision at CL.

(4) Contemporary twist – equalities:

Contemporary equalities legislation sees the UK Parliament resorting to the technique of mandatory ‘relevant considerations’. So for example a public authority when carrying out its functions must ‘have

due regard’ to the need to eliminate unlawful discrimination on grounds of disability (Disability Discrimination Act 1995, s. 49 (1) (a)). The authority is in turn required to publish an equality scheme showing how it intends to fulfil the obligation. The Equality Act 2010 applies this model (now termed ‘the public sector equality duty’) across broader equality strands (s.149):

(1) A public authority must, in the exercise of its functions, have due regard to the need to—(a) eliminate discrimination, harassment, victimisation and any other conduct that is

prohibited by or under this Act;(b) advance equality of opportunity between persons who share a relevant protected

characteristic and persons who do not share it;(c) foster good relations between persons who share a relevant protected characteristic

and persons who do not share it...(3) Having due regard to the need to advance equality of opportunity between persons who share a

relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

a. remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

b. take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;

c. encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low…

(5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

a. tackle prejudice, andb. promote understanding.

(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.

(7) The relevant protected characteristics are—age; disability; gender reassignment; pregnancy and maternity; race; religion or belief; sex; sexual orientation.

So under the equality act, we have wide coverage in this regard, but what exactly is meant by ‘have due regard’ and ‘advance equality’ etc…

- This is where it ties into CL principles. If a PA has not had due regard under CL principles, then it has not taken relevant considerations into account.

Individuals and pressure groups are naturally interested to test the potentials of this type of model: We thus detect a ‘hot-spot’ of judicial review litigation.

Illustrative cases are:

R (Brown) v Work and Pensions Secretary [2008] EWHC 3158, paras 79-96

Not very impt; look only at listed paragraphs. The significance of this case is that the court attempts to summarise the approach judges should take when tackling the problem of ‘having due regard’.

This case marks out the limitations and makes it quite clear that if one has to pay due regard to something, that does not mean it is not imposing a duty to achieve certain results. So public authorities are to have due regard to the need to eliminate discrimination – it is not a duty, it is a relevant consideration.

When the relevant authorities looking at the relevant consideration, it must do so in relation to everything else Parliament laid out in statute as well as other factors – due regard is thus going to be contextual. In particular, economic and practical factors will often be important.

So when individuals and organisations come forward and accuse lack of due regard by failing to (for example) devote enough resources to some development or other, the judges will thus apply economic/practical factors in assessing such claims. We also can see individuals and groups resorting to the statute as a sword and shield –trying to push public authorities to do more; and may also be using this section to blunt attempts to reduce resources etc.

Courts made it clear that this was a very serious duty that they are going to police, and gave six factors to take into account (these were based on the Disability Discrimination Act 1995, I think):

o A requirement to pay due regard presumes that relevant officials will have had proper education and training in this matter. This is about mainstreaming the need to fight discrimination in the public sector.

o If one has not considered it, then one cannot argue that it does not matter because the decision was alright anyway – its about process where the ends cannot justify the improper way in which you got there.

o The duty must be exercised in substance, with rigour and with an open mind. This means that we cannot just say that we have thought about the relevant consideration without actually considering it (i.e. no mere payment of lip service).

o This requirement is non-delegable; this is impt in the context of contractual governance. If the public authority has the duty, it cannot say that the contractors failed to do it. If the contractor fails to have due regard, the PA can be challenged and will be responsible.

o The duty is a continuing one.o Need to keep records of fulfilment of this requirement.

R (Harris) v Haringey LBC [2010] EWCA Civ 703

About planning permission being granted for the development of a site which would impact the existing black minority communities in the area. The appeal turns on whether the council, in granting permission, has discharged its duty under section 71 (which was a relevant consideration).

It was submitted that the council was under a duty before granting permission to have due regard to the needs specified in the section. The relevant section provides:

"(1) Every body or other person specified in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need—

(a) to eliminate unlawful racial discrimination; and

(b) to promote equality of opportunity and good relations between persons of different racial groups."

It is well established that the duty to have "due regard" involves a "conscious approach and state of mind" (Scott Baker LJ in Brown v Secretary of State for Work & Pensions[2008] EWHC 3158 (Admin), in the context of disability).

The judge was satisfied that, on the material before the council, there was sufficient potential impact on equality of opportunity between persons of different racial groups, and on good relations between such groups, to require that the impact of the decision on those aspects of social and economic life be considered.

He came to the conclusion that the section 71(1) duty was not discharged by the council when granting this planning permission.

‘Not only is there no reference to section 71 in the report to committee, or in the deliberations of the committee, but the required 'due regard' for the need to "promote equality of opportunity and good relations between persons of different racial groups" is not demonstrated in the decision making process. "Due regard" need not require the promotion of equality of opportunity but, on the material available to the council in this case, it did require an analysis of that material with the specific statutory considerations in mind. It does not, of course, follow that considerations raised by section 71(1) will be decisive in a particular case. The weight to be given to the requirements of the section is for the decision maker but it is necessary to have due regard to the needs specified in section 71(1). There was no analysis of the material before the council in the context of the duty.’

Pieretti v London Borough of Enfield [2010] EWCA Civ 1104

The issue was whether, and if so to what extent, the duty on local authorities under (1) of s.49A of the Disability Discrimination Act 1995 applies to exercise of powers and discharge of the duty under Part VII of Housing Act 1996 – the homelessness provisions.

S.49A(1) states:

Every public authority shall in carrying out its functions have due regard to –

(a) the need to eliminate discrimination that is unlawful under this Act;(b) the need to eliminate harassment of disabled persons that is related to their disabilities;

(c) the need to promote equality of opportunity between disabled persons and other persons;(d) the need to take steps to take account of disabled persons’ disabilities, even where that involves

treating disabled persons more favourably than other persons;(e) the need to promote positive attitudes towards disabled persons; and(f) the need to encourage participation by disabled persons in public life.

On ‘due regard to the need to take steps to take account’ of disability, this does not mean that in every case that decision makers must take active steps to inquire into whether the person is disabled and if so, in a way relevant to the decision. The duty is better phrased as ‘to take due steps to take account of disabled persons’ disabilities’, where ‘due’ means appropriate in all the circumstances.

‘33. [...] In R (Brown) v. Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) the Divisional Court of the Queen’s Bench Division (Scott Baker and Aikens LJJ), at [84], described the phraseology of s.49A(1)(d) as “convoluted”. The court helpfully proceeded, at [90] to [96], to identify six general principles referable to the duty to have “due regard” in all six of the aspects specified in the subsection, including, second, that it demanded “a conscious approach” and, third, that it should be performed “in substance, with rigour and with an open mind”.

34. For practical purposes, however, I see little difference between a duty to “take due steps to take account” and the duty under s.49(A)(1)(d) to “have due regard to … the need to take steps to take account”. If steps are not taken in circumstances in which it would have been appropriate for them to be taken, i.e. in which they would have been due, I cannot see how the decision-maker can successfully claim to have had due regard to the need to take them.’

In this case, the reviewing officer was in breach of the s.49A(1) duty as she failed to make an inquiry in relation to features of the evidence presented to her that raised a real possibility that Mr P was disabled in a sense relevant to whether he acted ‘deliberately’ for the purposes of being intentionally homeless as per s.191(1) HA 1996, or indeed acted in good faith as per s.191(2). While it was possible that Mr P did indeed have no relevant disability, the law required:

‘the reviewing officer (and, for that matter, the initial decision-maker) to take steps to take account of the appellant’s disability, i.e. to make further inquiries into whether it existed and if so whether it was relevant to the decision under s.191. Those further inquiries she never made.’