Buckley & Ors, R (on the application of) v Sheffield City Council [2013] EWHC 512 (Admin)

Case No CO/1020/2013Case No CO/982/2013[2013] EWHC 512 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT at MANCHESTER
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13 March 2013
Before
THE HON. MR JUSTICE SUPPERSTONE
Between
THE QUEENClaimantson the application ofClaimantKELLEY LAURA BUCKLEYClaimantIYABO CONGREAVESClaimantANNE MILLSClaimantALICIA MILLSClaimantSHEFFIELD CITY COUNCILDefendant
Ian Wise QC and Jamie Burton(instructed by (1) Irwin Mitchell Sheffield (2) Bhatia Best Nottingham) for ClaimantsJonathan Manning(instructed by Sheffield City Council Legal Services Dept) for DefendantHearing Hearing dates: 08 February 2013
JudgmentMr Justice Supperstone :Introduction
[1]The Claimants challenge the decision made by the Defendant at a full Council meeting on 23 January 2013 to approve its Council Tax Reduction Scheme (“the Scheme”).[2]The consequence of the Defendant’s decision is that the Claimants and many poorer residents like them who previously benefited from 100% exemption from Council Tax will now be required to pay 23% of their Council Tax liability.[3]There are two grounds of challenge: i) that the Defendant’s consultation on its proposed scheme was unlawful because it offended against the common law requirement that sufficient information should be provided to consultees to allow them to make an informed response (Ground 1); ii) that the Defendant has failed to have due regard to the impact of the proposals on persons with “protected characteristics” such as children and disabled people as required by section 149 of the Equality Act 2010 (Ground 2). The Claimants no longer pursue a third ground of challenge described as “Tameside irrationality”.[4]These claims were listed to be heard together for a rolled-up hearing to consider whether permission should be granted and if so to deal with the substantive application for judicial review immediately thereafter.[5]At the conclusion of the hearing I reserved judgment until after the Court of Appeal had delivered judgment in R (Sarah Stirling) v LB Haringey [2013] EWCA Civ 116, which raised a similar challenge to the consultation process and I gave permission to the parties to make further written submissions following judgment in that case. On 12 February 2013 the Court of Appeal dismissed the appeal and on 22 February 2013 gave reasons for so doing. Mr Ian Wise QC for the Claimants accepts that the judgment of the Court of Appeal in the Haringey case binds this court in the present case and accordingly the Claimants fail in their consultation challenge. However he invited me to make no final order with respect to the consultation issue until the Appellants’ application to the Supreme Court for permission to appeal has been finally determined, permission having been refused by the Court of Appeal. Mr Jonathan Manning for the Defendant resisted this submission. In my judgment there is no good reason for further delaying judgment in the present case. At the request of the parties I informed them, during the period when the reasons for the Court of Appeal’s decision were still awaited, that the equality challenge failed. I now give final judgment, setting out my reasons.

The legislative framework

[6]Section 1(1) of the Local Government Finance Act 1992 (“1992 Act”) provides that a billing authority is under a duty to levy and collect council tax in respect of dwellings situated in its area.[7]Section 1(2) of the 1992 Act defines “billing authority”— “(a) in relation to England, a district council or London borough, the Common Council or the Council of the Isles of Scilly.”[8]The national scheme of Council Tax Benefit, administered by local authorities but financed by central Government, will shortly cease to exist. The Welfare Reform Act 2012, s.33(1)(e) gave effect to a policy of localising council tax support by abolishing council tax benefit from a date to be appointed by the Secretary of State.[9]On 31 October 2012 the Local Government Finance Act 2012 inserted a new section 13A and Schedule 1A into the 1992 Act. Section 13A(2) provides:
“(2) Each billing authority in England must make a scheme specifying the reductions which are to apply to amounts of council tax payable, in respect of dwellings situated in its area, by— (a) persons whom the authority considers to be in financial need, or (b) persons in classes consisting of persons whom the authority considers to be, in general, in financial need.”
[10]Paragraph 3 of Schedule 1A provides:
“(1) Before making a scheme, the authority must (in the following order)— (a) consult any major precepting authority which has power to issue a precept to it, (b) publish a draft scheme in such manner as it thinks fit, and (c) consult such other persons as it considers are likely to have an interest in the operation of the scheme. … (3) Having made a scheme, the authority must publish it in such manner as the authority think fit.”
[11]Paragraph 4 of Schedule 1A provides:
“(1) The Secretary of State must by regulations prescribe a scheme (‘the default scheme’) for the purposes of this paragraph. (2) The first financial year to which the default scheme relates must be the year beginning with 1 April 2013 (or such other year as is specified in section 10(4) of the Local Government Finance Act 2012). … (6) The default scheme is to take effect in respect of dwellings situated in the area of a billing authority, if the authority fails to make a scheme on or before 31 January 2013 (or such other date as is specified in section 10(4) of the Local Government Finance Act 2012).”
[12]The default scheme is contained in the Council Tax Reduction Scheme (Default Scheme) (England) Regulations 2012 made under paragraphs 2 and 4 of Schedule 1A.[13]At the same time as transferring to local authorities responsibility for creating a local scheme for council tax support for persons in financial need, the Government has reduced the amount of support for Council Tax nationally by 10% for the financial year 2013/2014. The default scheme is broadly similar to the existing council tax benefit scheme, but it does not make any provision for the cut in funding from central government. Where it takes effect the authority will have to make good the shortfall in funding.[14]Under the Council Tax Reduction Schemes (Prescribed Requirements) (England) Regulations 2012, pensioners whose income is below an applicable amount are entitled to a reduction under each scheme developed by each local authority. The practical effect of this is that pensioners who are currently in receipt of 100% council tax rebate are not affected by these legislative changes.[15]The Defendant, like all council tax billing authorities in England, was required to adopt a scheme by 31 January 2013, to come into operation on 1 April 2013.

The factual background

[16]The Defendant consulted with its major precepting authorities. On 20 July 2012 the Defendant’s Executive Leader decided to approve the Council Tax Support Scheme proposed to her by the Defendant’s officers and to approve a public consultation on the proposed scheme. The Defendant published a draft scheme and consultation took place between 24 July 2012 and 17 September 2012.[17]In a document headed “Consultation questions and background information” the Defendant explained:
“Council Tax Benefit is changing From April 2013, the Government has announced that it will end Council Tax Benefit. Instead, councils will need to replace it with their own local Council Tax Support schemes. Like Council Tax Benefit, the Council Tax Support will reduce the amount of council tax people need to pay. Therefore we are consulting with you on our draft scheme for Council Tax Support. No changes have been made to existing discounts such as the 25% Single Persons Discount and student exemptions. However there will be some changes and some of these have been set by the Government: • A 10% reduction in funding for Council Tax Support. This equates to a reduction of about £4.6 million in the first year in Sheffield. • Only working-age residents will be affected because the Government has told councils that pensioners who receive Council Tax Benefit will be protected from the changes. … • An average cut in support of 20% for working age customers. … We have some difficult choices to make and we need your views. Our draft scheme: • Matches as closely as possible to the Council Tax Benefit scheme so: … • Gives all working age residents who qualify for Council Tax support a discount of up to 80% off their Council Tax bill. • Provides extra help to our most vulnerable citizens. …”

Our draft scheme:

[18]The consultation document then asked five substantive questions. The first question asked whether consultees agreed that “our scheme should match as far as possible the Council Tax Benefit scheme”. In the accompanying note it said:
“We are facing a huge gap in funding across all of our services. This means that we have to make some very difficult decisions about how that funding should be spent. If we are to avoid funding the £4.6 million cut in Council Tax Support from money that could be spent on other services, we will need to limit the amount of Council Tax Support we pay out. One way of doing this is to give all working age residents who qualify for Council Tax Support a discount of up to 80% of their Council Tax bill. … … This spreads the burden of the cut equally across all working age customers. Importantly, it also ensures that the most vulnerable and those in greatest need, for example those with children or with disabilities, will get a greater share of the support that is available.”
[19]Question 2 then asked whether consultees agreed that there should be a maximum discount of 80% to all working age residents. In the accompanying note it said:
“Hardship We recognise that this change may be more difficult for some residents to manage than others and that a cut in support may place some residents in severe hardship. Therefore we are proposing extra support to meet the needs of those vulnerable residents.”
Question 3 asks whether consultees agree that there should be extra support for people in severe financial hardship.[20]Following the close of consultation, the results were analysed and a summary of responses prepared.[21]An Equality Impact Assessment (“EIA”) was prepared, which is dated 5 October 2012.[22]On 17 October 2012 the draft scheme was considered at Cabinet. Cabinet decided to recommend to full Council that the draft scheme should be approved. The matter was due to be considered at the full Council meeting on 23 January 2013.[23]On 16 October 2012 the Government announced a transitional grant scheme (“the TGS”) in a written statement to Parliament by the Parliamentary Under-Secretary of State at the Department for Communities and Local Government. On 18 October 2012 the Department issued a circular – “Localising Support for Council Tax: Transitional Grant Scheme” – which explained the TGS in more detail. Details of the TGS were also published on the DCLG’s website. In summary, an additional £100m of funding from Central Government was made available to those billing authorities whose Council Tax Reduction Schemes met three criteria as follows:
“(i) Those who would be entitled to 100% support under current council tax benefit arrangements pay between zero and no more than 8.5% of their net council tax liability; (ii) The taper rate does not increase above 25%; (iii) There is no sharp reduction in support for those entering work. The taper should continue to operate as under current council tax benefit regulations…”
Annex A to the Circular set out the amounts that would be available to each eligible authority. The Defendant’s share, assuming it scheme met the criteria, would have been around £1.1m gross, which equated to £958,956 net. The closing date for applications for transitional grant was 15 February 2013.[24]The Defendant’s officers concluded that the Defendant should not alter its draft scheme or apply for transitional grant on the basis that to do so would be unaffordable in the context of the Defendant’s overall financial position (see witness statement of Mr Eugene Walker, the Defendant’s Director of Finance, at paragraphs 64-67).[25]On 23 January 2013 the Defendant’s draft scheme was considered and adopted by Members at full Council, to come into force on 1 April 2013. The parties submissions and discussion Ground 1: allegation that the Council failed to conduct proper consultation

The parties submissions and discussion

[26]Mr Wise submits that for three reasons the consultation process was unfair. First, the consultees were misled into believing that there were no means by which the shortfall in funding could be met save for passing it on directly to the council tax benefit caseload in the form of reduced support or by way of cuts to unspecified services. The consultees would not have known that the shortfall could conceivably have been met, in whole or in part, by increases in council tax, technical changes to the council tax rules, utilising the Defendant’s reserves or cuts to specific services, whether in isolation or combination. Second, the Defendant failed to provide even the briefest of reasons why in deciding to pursue its proposed scheme it had rejected using any of these options. Third, the Defendant should have informed consultees that the Government was offering a grant of £958,956 where the amount of the shortfall passed on to the poorest residents was no more than 8.5%. This was a highly material development which, Mr Wise submits, if brought to their attention, may well have affected the consultees’ responses.[27]It is common ground that whether a consultation process has been fair will depend on the particular circumstances of the case. In R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213 at paragraph [108] Lord Woolf MR identified the four basic requirements. Consultation must i) be undertaken when proposals are at a formative stage; ii) include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; iii) give consultees sufficient time to make a response; and iv) be conscientiously taken into account when the ultimate decision is taken.[28]The focus of the submissions made by Mr Wise was on the second requirement. He submitted that in order to be fair a consultation document must present information about other options that had been considered and explain why they had been rejected. In support of this submission Mr Wise relied on the judgment of the Court of Appeal in R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472 where Arden LJ said that an aspect of fairness was that a consultative document “…must present the available information fairly. The options for change must be fairly presented. Nonetheless, a decision maker may properly decide to present his preferred options in the consultation document provided it is clear what the other options are: Nichol v Gateshead Metropolitan Borough Council [1988] 87 LGR 435, [1988] COD 97.”[29]Mr Manning submits that the consultation process adopted was fair and lawful. The real options available to pay for the authority’s reduction scheme were extremely limited and boiled down to reducing the level of support available to claimants, or reducing the money used for other purposes by the authority. The decision faced by the authority, of which consultees were informed, was whether the authority should fund the shortfall and reduce service budgets, or whether it should limit the available support under the reduction scheme.[30]I do not accept that the consultation suggested that there was simply no alternative to passing the shortfall on to current Council Tax Benefit recipients. It is clear from the consultation document (see paras 17-19 above) that there were other options and consultees were free to respond, and many did, in terms that the authority should fund the shortfall in full, or that the proposed 80% maximum award should be lower and people should pay more. For the reasons given in the statement of Mr Walker, council tax increases or use of reserves were not realistic options and it would not have been sensible for the authority to have suggested that they were available. The Claimants have not suggested what technical changes ought to have been put to consultees. The use of the proposed hardship fund of £500k would not have come close to meeting the funding shortfall.[31]In R (Stirling) v London Borough of Haringey Sullivan LJ observed (at paragraph 15):
“It is one thing to say that when options for change are presented in a consultation paper (as they were in the Brompton case, see paragraphs 57-65 of the Court’s judgment) they must be fairly presented, it is quite another to submit, as Mr Wise submitted on behalf of the Appellant, that in order to be fair a consultation paper must present information about other options that have been rejected. What fairness requires depends on the circumstances of the particular case.”
In the present case, as in Haringey, the scope of the consultation is prescribed by paragraph 3(1) of Schedule 1A. The Defendant was required to publish a draft scheme and then to consult those persons who were likely to have an interest in the operation of that draft scheme. At paragraph 19 of his judgment, Sullivan LJ stated:
“Even if the statutory scheme had been less prescriptive and more open-textured as to the subject matter of the consultation process, I would not have concluded that the consultation document’s failure to mention the other possible ways of meeting the shortfall in Central Government funding rendered the consultation process unfair.”
[32]Accordingly the first two of the three reasons put forward by the Claimants (see para 26 above) in support of the contention that the consultation contained insufficient or misleading information are not, in my view, made out.[33]I turn now to the third reason, the failure to inform consultees of the TGS.[34]For the reasons given by Sullivan LJ in Haringey at paragraphs 15-26 in my judgment the Defendant was not required to consult on the TGS; it was required to, and did, consult on its own draft scheme.

Ground 2: that the Council acted in breach of the Equality Act 2010, s.149

[35]The public sector equality duty enacted in section 149 of the Equality Act 2010 is as follows:
“(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. (4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities. (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, and (b) promote understanding. (6) Compliance with the duties of 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.” (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. (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. (a) tackle prejudice, and (b) promote understanding. age; disability; gender reassignment; pregnancy and maternity; race; religion or belief; sex sexual orientation.”
[36]Mr Wise submits that the Defendant had no regard to children as a distinct group who share the protected characteristic of “age”. Further he submits that the Defendant failed to comply with the obligation to have “due regard” to the requirements of s.149(1) with respect to disabled people and children.[37]Mr Manning submits that the authority had due regard to the effect of its proposals on persons with protected characteristics, including disabled persons and children.[38]The question whether due regard has been had, has to be decided as a matter of substance, not form. In R (Greenwich Community Law Centre) v Greenwich LBC [2012] EWCA Civ 496 Elias LJ said at [30]:
“I would emphasise the need for the court to ask whether as a matter of substance there has been compliance; it is not a tick box exercise. At the same time the courts must ensure that they do not micro-manage the exercise.”
There is no formal duty to carry out a formal impact assessment (R (Domb) v Hammersmith and Fulham LBC [2009] EWCA Civ 941, per Rix LJ at [52]). Thus the absence or existence of an EIA in any particular case is not determinative of the issue. In R (Bailey) v LB Brent [2011] EWCA Civ 1586 Davis LJ observed at [102]:
“…In a case where the council was fully apprised of its duty under s.149 and had the benefit of a most careful Report and EIA, I consider that an air of unreality has descended over this particular line of attack. Councils cannot be expected to speculate on or to investigate or to explore such matters ad infinitum; nor can they be expected to apply, indeed they are to be discouraged from applying, the degree of forensic analysis for the purpose of an EIA and of consideration of their duties under s.149 which a QC might deploy in court. …”
[39]In R (Baker) v Secretary of State for Communities and Local Government [2008] EWCA Civ 141, which concerned the application of one of the preceding equality provisions, section 71 of the Race Relations Act 1976, Dyson LJ said at [31]:
“In my judgment, it is important to emphasise that the section 71(1) duty is not a duty to achieve a result, namely to eliminate unlawful racial discrimination or to promote equality of opportunity and good relations between persons of different racial groups. It is a duty to have due regard to the need to achieve these goals. The distinction is vital. … What is due regard? In my view, it is the regard that is appropriate in all the circumstances.”
These observations are equally applicable to the duty under s.149, which has now replaced the s.71 duty.[40]In my judgment it is clear from the evidence that the Council had due regard to the impact of the proposals on persons with “protected characteristics” such as children and disabled people as required by s.149 for the following reasons: i) The Council considered its duty under s.149 in the context of proposing a scheme which was required by statute to identify persons or classes of persons which the Council considers are in financial need. The Council focused on those groups with protected characteristics who were likely to be affected by the proposals. ii) The consultation documents recognised that the change may be more difficult for some residents to manage than others and that a cut in support may place some residents in severe hardship. Therefore the Council stated that it was proposing extra support to meet the needs of the most vulnerable and those in greatest need, for example those with children or with disabilities (see paras 18 and 19 above). iii) The Cabinet Report for the meeting on 17 October 2012 states in the Summary at para 1.15:
“Inevitably some households will find a cut in support harder to manage than others. The Council is therefore considering ways that additional support may be provided to meet the needs of those particularly vulnerable households experiencing severe financial hardship.”
Paragraph 9 of the Report, headed “Equality of Opportunity Implications”, includes the following:
“9.1 There is a commitment to fairness and social justice at the heart of the Council’s values. We believe that everyone should get a fair and equal chance to succeed in Sheffield however we recognise that some people and communities need extra support and help to reach their full potential, particularly when they face multiple layers of disadvantage and discrimination. It is inevitable when funding levels are reduced that there will be an impact on the services we deliver including some of the work we do with groups who share a protected equality characteristic. As far as practically possible within the confines of a reduced financial settlement, we have tried to minimise the impact on these groups. 9.2 The Council, in the implementation of the scheme, will need to be mindful of its legal duties toward certain groups and give careful consideration to the assessment of equalities implications including its duties under the Equality Act 2010. 9.3 An Equalities Impact Assessment (EIA) has been undertaken to support the development and implementation of our local scheme and takes into account feedback from the formal consultation process. …” iv) The EIA assessed the impact level in relation to “Age” as “High”
. It was noted that:
“It is acknowledged that some households will find a cut in support harder to manage than others. Therefore in the run up to the implementation of the scheme the Council will consider ways that additional support, for example through the development of an additional hardship scheme, may be provided to these households.”
The impact level in relation to those with a “Disability” was assessed as “Medium”. It was noted:
“Pension age customers with a disability will not be adversely impacted by this change. Working age customers with a disability will be affected as they will have their CTS award based on 80%, rather than 100% of their Council Tax Liability. The Council recognises that this may cause hardship for customers in this group. However by aligning the scheme with the current CTB scheme, customers in receipt of disability benefits will continue to receive the highest possible level of CTS. It is acknowledged that some households will find a cut in support harder to manage than others. Therefore in the run up to the implementation of the scheme the Council will consider ways that additional support, for example through the development of an additional hardship scheme, may be provided to these households. Equally, some disabled customers or households may have a higher net income than other groups and although the Council recognises that this income is intended to meet their wider needs, they may still be in a better position to meet their Council Tax Liability than customers on non-disability welfare benefits. In addition the Council intends to continue to disregard as income Attendance Allowance, Disability Living Allowance and War Disablement Pension when assessing a customer’s eligibility to CTS.”
The EIA includes another area of possible impact, referred to as “Financial inclusion, poverty, social justice, cohesion or carers” where the impact level is assessed as “High”. In the “explanation and evidence” box of the report it is noted:
“It is intended that the CTS scheme is based on the current CTB regulations. These regulations provide for the maximum financial support being made available to those with the greatest financial need. They protect some of the income of the disabled and of families whilst providing assistance to those people who move off benefits into paid employment. The Council recognises however that requiring all working age customers to pay a minimum of 20% of their Council Tax may cause financial hardship amongst some households. Therefore in the run up to the implementation of the scheme the Council will consider ways that additional support, for example through the development of an additional hardship scheme may be provided to these households. The Council also recognises they will need to review the way in which Council Tax is recovered from those most impacted by this change in order to wherever possible minimise the level of indebtedness that this change may bring about.” v) Following the EIA, the Council produced an Action Plan. In relation to those with “disability” it states: “We will work to establish a baseline which shows the proportion of Disabled customers in receipt of CTB in order to support the work we will undertake to monitor the impact of this change on disabled customers.”
In relation to “All groups”, the action and mitigation to be taken is stated to be as follows:
“The Council will develop and implement a Communications Strategy which will ensure that all those affected by this change are made aware of the impact on them. We will also provide advice on how and where customers can pay their Council Tax and we will work with advice and support agencies to ensure customers have access to money advice services. In order to promote financial inclusion and reduce poverty we will work with the Credit Union to promote the take up of low cost saving and borrowing. However, it is acknowledged that some households will find a cut in support harder to manage than others. Therefore in the run up to the implementation of the scheme the Council will consider ways that additional support, for example through the development of an additional hardship scheme, may be provided to these households. We will review the Council Tax Recovery policy and procedures to try where possible to minimise any increase in indebtedness.” vi) I accept Mr Manning’s submission that the impact on children themselves cannot be divorced from the position of households in which they live. There is no separate impact in relation to children that councils should have considered separately. vii) Mr Wise submits, relying on the decisions in R (W, M and others) v Birmingham City Council [2011] EWHC 1147 (Admin) and R (JM) v Isle of Wight Council [2011] EWHC 2911 (Admin), that the “due regard” duty required the Council to identify the number of children and disabled persons affected by the proposal, to analyse the impact of the proposal on them and to consider whether any negative impact could be avoided or mitigated. I reject this submission. The impact of the proposal on persons who share a relevant protected characteristic is not uniform, rather it depends on individual circumstances. Some families with children will be able to meet the proportion of their liability more easily than others. viii) With regard to the hardship fund the Defendant proposes to operate to help those in severe financial hardship, Mr Walker states: “69. The intention is that the hardship fund will assist those who are most affected by the change to CTS. We believe that this targeted approach, as opposed to a blanket approach providing support to certain categories of customers, will be a more effective and efficient way of meeting the need of those customers most affected by this change. 70. We have based this on the stark reality that we do not, and cannot, know the individual circumstances of all 34,000 customers affected by the move to CTS. We can assume, as we have done when drawing up the EIA for CTS, that there will be customers in all of the protected characteristic groups who will be affected by this change, but we do not know this on an individual basis.”
The Claimants have not suggested anything that further consideration of the position of disabled people or children would have revealed in addition to that which the Defendant already knew. The authority did not have access to details of the financial position of all Council Tax Benefit claimants. At paragraphs 72-77 of his statement, Mr Walker explains how the hardship fund will operate. I reject the submission made by Mr Wise that the references to a hardship fund are precisely the sort of vague and generalised assertions which the court found in WM and others v Birmingham City Council to be insufficient to demonstrate due regard to the duty in that case. ix) The size of the proposed hardship fund, namely £500,000, is not material in determining whether the Council had due regard to the impact of the proposals on persons with protected characteristics. The Council proposes to monitor the situation and deal with cases of severe financial hardship, no doubt having regard to its own financial circumstances (see Finance Briefing Note of 3 December 2012, para 4, and minutes of Defendant’s full Council meeting on 23 January 2013). x) The Council were entitled to conclude that the impact on disabled people and children was not uniform; and that in the circumstances the creation and operation of the hardship fund is the best way to help those in severe financial hardship. It is clear from the consultation materials, the EIA and the minutes of full Council meetings (including Cabinet Reports) that the Council did consider whether there were alternative means of developing a scheme which had less impact on persons who share protected characteristics including disabled people and children.

Anonymity

[41]In the light of the decision of the Court of Appeal in Haringey and the observations of Sullivan LJ at paragraph 27, I consider there is no justification for the continuation of an order preserving the anonymity of the Claimants.

Conclusion

[42]I grant permission to apply for judicial review. However, for the reasons I have given this claim fails.

Cited in 2 later judgments