Copson, R (on the application of) v Dorset Healthcare University NHS Foundation Trust [2013] EWHC 732 (Admin)

[2013] EWHC 732 (Admin)Case No CO/9472/2012
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Cardiff Civil Justice Centre, 2 Park Street, Cardiff, CF10 1ETDate 28 March 2013
Before
His Honour Judge Keyser QCsitting as a Judge of the High Court
Between
THE QUEENClaimanton the application of Rosalind CopsonClaimant- and –
Between
DORSET HEALTHCARE UNIVERSITYDefendantNHS FOUNDATION TRUSTDefendantNHS DORSETInterested Party
KATHERINE OLLEY (instructed by Scott-Moncrieff & Associates LLP) for ClaimantJOHN DE BONO (instructed by Weightmans LLP) for DefendantThe Interested Party took no part in the proceedingsHearing Hearing date: 15 March 2013
JudgmentH.H. Judge Keyser Q.C.:Introduction
[1]This is a claim by the claimant, Rosalind Copson, for an order quashing the decision of the defendant, Dorset Healthcare University NHS Foundation Trust, on 14 June 2012 to implement its Mental Health Urgent Care Services Project for the reconfiguration of mental health services in the west of Dorset. The Project is a collaboration between the defendant and the interested party. The particulars of the relationship between the defendant and the interested party and the mysteries of NHS organisation and structure were not explained or explored in the hearing of the claim and accordingly I shall pass over them.[2]Permission to apply for judicial review of the defendant’s decision was given by Burton J at a hearing on 16 January 2013. The order for permission was made by consent and on agreed terms that provided for the parties to meet with a view to attempting to reach substantive agreement. Later in this judgment I shall say something about what has happened since the order was made; for the moment it suffices to note that no agreement was reached.[3]The claim is put on two grounds. First, it is said that the defendant failed, before reaching its decision, to carry out an adequate consultation with users of its mental health services, chiefly in that it failed to provide to those users sufficient information to enable them to engage meaningfully with the proposals. Second, it is said that the defendant failed to comply with its duty under section 149 of the Equality Act 2010 to have due regard, in the exercise of its functions, to the need to advance equality of opportunity.[4]I have been much assisted by the written and oral submissions of Ms Olley for the claimant and Mr de Bono for the defendant. However, examination of the facts was not assisted by the absence of any evidence from the defendant or the interested party and of any detailed chronological analysis of events. In what follows I shall largely let the documents tell their own story. I regret that the importance of releasing this judgment before Easter has not permitted the usual scrutiny of its text for grammatical and typographical errors.

The background

[5]The claimant is a user of mental health facilities in Bridport, Dorset. The facilities that she uses include the in-patient facility at the Hughes Unit in Bridport. The defendant’s proposed reconfiguration of mental health services in the area will involve the loss of that facility. The claimant is a member of the Hughes Unit Group Supporters, who are attempting to prevent that loss.[6]As a “relevant English body” for the purposes of chapter 2 of Part 12 of the National Health Service Act 2006 (the 2006 Act), the defendant is subject to a duty under section 242 of the 2006 Act: “(1B) Each relevant English body must make arrangements, as respects health services for which it is responsible, which secure that users of those services, whether directly or through representatives, are involved (whether by being consulted or provided with information, or in other ways) in—(a) the planning of the provision of those services,(b) the development and consideration of proposals for changes in the way those services are provided, and(c) decisions to be made by that body affecting the operation of those services. (1C) Subsection (1B)(b) applies to a proposal only if implementation of the proposal would have an impact on— (a) the manner in which the services are delivered to users of those services, or (b) the range of health services available to those users. (1D) Subsection (1B)(c) applies to a decision only if implementation of the decision (if made) would have an impact on— (a) the manner in which the services are delivered to users of those services, or (b) the range of health services available to those users. (1E) The reference in each of subsections (1C)(a) and (1D)(a) to the delivery of services is to their delivery at the point when they are received by users. (1F) For the purposes of subsections (1B) to (1E) … a person is a “user” of any health services if the person is someone to whom those services are being or may be provided.” (a) the planning of the provision of those services, (b) the development and consideration of proposals for changes in the way those services are provided, and (c) decisions to be made by that body affecting the operation of those services. (a) the manner in which the services are delivered to users of those services, or (b) the range of health services available to those users. (a) the manner in which the services are delivered to users of those services, or (b) the range of health services available to those users.[7]It is also common ground that the defendant’s proposals amount to a “change in service provision” and give rise to a duty on the part of the defendant, pursuant to section 244 of the 2006 Act, to consult formally with Dorset County Council’s Scrutiny Committee in relation to the proposed changes.

The consultation and decision-making process

[8]For the purposes of this case, the narrative can begin in August 2011 with an Equality Analysis by the defendant in respect of what was then being called “Enhanced Recovery Services” for the West of Dorset. This recorded:
“An integrated acute care recovery service is planned for all adults with functional mental health difficulties who require either an emergency or urgent response to safeguard them and/or others from the likelihood of significant harm.”
The document identified “equality target groups” (race, gender, disability etc), assessed the potential impact of the proposed development on each of those groups, and set out required actions or action plans. Section 4 of the Equality Analysis set out the steps that were to be taken to engage and involve “stakeholders” (service users, carers, the public etc) in the formulation of the proposed development.[9]By October 2011 Enhanced Recovery Services had been re-named “the Mental Health Urgent Care Services Project”. A Task and Finish Group was set up, and the report to the first meeting of that Group on 14 October 2011 explained the aims and nature of the Project. “The project aims to provide sustainable and accessible urgent care services within mental health for people in the west of Dorset … Proposals would cover the three primary care localities of North Dorset, West Dorset, and Weymouth & Portland, for people aged 18 years and over. … The project proposes The project proposes 1. The clinical and operational integration of crisis resolution, home treatment and inpatient services. 2. The extension of locality-based services to include crisis accommodation and day treatment, based on the reinvestment of money released by reductions in the number of inpatient beds. 3. The updated of the environments within the retained inpatient services together with the replacement of the Linden Unit. … The proposed new services will be created by combining Crisis Response and Home Treatment (CRHT) teams with inpatient staff to provide alternatives to hospital admission within a unified team and management structure. The proposals also involve re-investment in an expanded range of local services designed to help people stay at home wherever it is safe for them to do so. … The Mental Health Urgent Care Service will be structured about a hub and spoke model of service provision …. Services will be accessed through both the central hub and locality services on the basis of a single triage and assessment process (“no door is the wrong door”).”

The project proposes

[10]The hub and spoke model was illustrated in a diagram. The hub provided for inpatient admission and treatment units, emergency response within four hours, Mental Health Act assessments, admissions to designated places of safety and prison placements. From that hub radiated three spokes for, respectively, West Dorset Locality, Weymouth & Portland Locality, and North Dorset Locality. Each spoke provided for urgent assessments, treatment programmes, home treatment and “Crisis Accommodation”.[11]The report continued:
“The proposed changes are based on a phased programme of bed closures and complementary investment in locality based services. This would involve the reduction in the number of functional inpatient beds from the current establishment of 58 to 38 beds which equates to a 35% reduction.”
The existing 58 beds were listed: nine at Stewart Lodge, Sherborne; seven at Hughes Unit, Bridport; sixteen at Linden Ward, Weymouth; fourteen at Minterne Ward, Dorchester; twelve at Melstock Unit, Dorchester. The report explained that the proposed “bed reductions and reinvestment in locality services” would be based on the phased closure of the Hughes Unit (“7 beds for younger adults”) and Stewart Lodge (“4 beds for older adults and 5 beds for younger adults”). The report set out a “phased programme plan”; Phase 1 provided for a formal consultation process in February/March 2012 and a final decision in March 2012. Phases 2 and 3 provided for implementation to commence in June 2012.[12]The minutes of the meeting of the Task and Finish Group on 14 October 2011 recorded the intention behind the phased implementation of the proposals:
“The Project would be managed carefully so that patients were not put at risk and a phased approach to implementation had been adopted to ensure this. The Project would be carried out in three phases to ensure that service improvement was aligned with bed reductions and the outcome of one phase would be reviewed before the next phase started.”
[13]The minutes of the meeting also show that the question of cost and funding was raised:
“A question was asked as to why funding had not been mentioned and that the public’s perception of this would be that the Trust were saving money by closing beds because no detail of the plans for home treatment and more flexible service provision were known. It was felt that the Trust should be open with the public about the costs, savings and benefits of the proposals as people were less likely to object if they understood the rationale behind the changes. The Deputy Director of Joint Commissioning and Partnerships explained that on balance it had been decided not to include figures, although they were available and could be shared with the public. The engagement process would give people, including those who might oppose the proposals, an opportunity to discuss and influence them.”
[14]Appended to the report to the meeting on 14 October 2011 was a “Communication & Engagement Plan”, which showed how it was proposed to engage stakeholders in the Project. The proposals for patients, carers and supporters included publications, group-specific presentations and “workshops to service users and carers & supporters in locations affected by the proposed service changes”. In accordance with that proposal, service users were invited to a series of workshops in the late part of 2011 in order that they might learn of the proposals and give their views. It had originally been intended that the workshops would run until December 2011, but attendance was poor and the exercise was extended until mid January 2012. A summary of the engagement plan was prepared by the interested party in a Feedback Report to the Task and Finish Group dated 28 February 2012.[15]The Task and Finish Group met again on 9 March 2012. The minutes of that meeting recorded that some areas of concern had been raised in the engagement exercise and that, although the basic details of the proposals had not changed, “some additional features had been included to go some way to reflect those concerns”.[16]Five further points may be drawn from the minutes of the meeting on 9 March 2012. First, concerns were raised in respect of access and transport if services were to be provided elsewhere than in the town where the service users resided. Second, there remained some concern that the public might wrongly think that the proposed changes were driven by considerations of economy rather than care:
“One member drew attention to the fact that the proposed changes were cost neutral and that this wasn’t evident to the public. The Deputy Director of Joint Commissioning and Partnerships confirmed that overall the budget was neutral. The cost of the crisis house would be over and above the existing budget so would be a real increase in overall spending. The number of staff for locality services were being increased by 231 due to changing the skill mix, with some of this increase improving staffing levels in the adult inpatient units.”
Third, it was proposed that “some peer specialists would be employed as part of their own recovery and some would act as volunteers”. The thinking behind this proposal was that “service users had lived experience and expertise and were able to offer something back to society which would form part of their own recovery.”[17]Fourth, there had been a revision of the original proposal. The hub and spoke model mentioned at the earlier stage had provided for three crisis house, one in each of the spoke localities. This was no longer the proposal; rather it was intended to have a single crisis house. “One member remained concerned about the proposals and in particular that resources should be available for those living alone in isolated areas. He questioned whether the provision of one crisis house was sufficient. Other members echoed the concern that it would be difficult for one crisis house to meet the meets of the whole of the West of Dorset. The Chairman informed the Group that he had been shown figures to support that one crisis house was sufficient provision.”[18]Fifth, the engagement and consultation process was reviewed. “In response to a question as to whether there had been consultation, the Deputy Director of Joint Commissioning and Partnerships explained that there had been consultation and it was then further clarified that this was not formal consultation under the Act.” I do not know what the concluding part of that minute means. At all events, the only consultation with which I am concerned in this case was the consultation undertaken in purported discharge of the duty under section 242 (1B) of the 2006 Act. No “formal consultation” is required by that provision. The minutes show that there was general satisfaction with the engagement exercise but recognition that no consultation or Equality Impact Assessment (EIA) had been undertaken on the revised model of care. The Group was of the view that any further consultation should not duplicate that which had already been undertaken but should concentrate on the revised model. It was resolved that formal consultation take place on the revised model and that an EIA of the revised model be completed.[19]In accordance with that resolution, a further EIA was undertaken in March 2012 by way of a revision of the earlier assessment. The EIA showed a further review date of May 2012.[20]Also in accordance with the decision taken on 9 March 2012, a further period of consultation took place from 23 April to 30 May 2012. The defendant published a new consultation document, entitled, “Mental Health Urgent Care Services[:] A new approach for the west of Dorset”. In the introduction, the document said:
“We have consulted widely with many interested parties including patients, health professionals, carers, support groups, social services staff and local councillors. Their views have been taken on board and a final proposal for new Mental Health Urgent Care Services for people aged over 18 has now been developed. … Before it is adopted formally, we would like to hear your final comments. We enclose a response form and we would be grateful if you would take a few minutes to jot down your views and return it to us by 30 May 2012.”
[21]The proposal section of the consultation document set out the greater emphasis on care in the community rather than in-patient treatment. The section on crisis housing summarised the revised proposal:
“Care for people may also be provided in ‘recovery accommodation’ (sometimes called crisis housing). This will be a home in either Weymouth or Dorchester, where people can stay for short periods. It will be for patients who have been in a mental health unit and recovered enough to be discharged but who still need some support before going home. It will also be used for people who may avoid going into a mental health unit if they are given extra support in the recovery accommodation for a short period.”
The section on in-patient care set out the aim of ensuring that only those who presented a serious risk to themselves or others would need in-patient care. It said:
“As a result, inpatient units must: • develop a wide range of therapeutic activities and psychological help to enable a patient to gain control over their general recovery • have enough suitably-qualified and experienced staff to care safely for patients who are in crisis. The small community units such as the Hughes Unit and Stewart Lodge are not able to do this but they will continue to provide outpatient and day treatment services. Staff will be redeployed in the community and 10 additional people will be employed. Inpatient care will be provided at the Linden Unit in Weymouth and the Minterne Unit in Dorchester for the intensive care of younger adults. Both units will have more staff.” “As a result, inpatient units must: • develop a wide range of therapeutic activities and psychological help to enable a patient to gain control over their general recovery • have enough suitably-qualified and experienced staff to care safely for patients who are in crisis. The small community units such as the Hughes Unit and Stewart Lodge are not able to do this but they will continue to provide outpatient and day treatment services. Staff will be redeployed in the community and 10 additional people will be employed. Inpatient care will be provided at the Linden Unit in Weymouth and the Minterne Unit in Dorchester for the intensive care of younger adults. Both units will have more staff.”
[22]The final page of the document provided a comparison of the existing care services and the revised care services provided in local areas in the west of Dorset. The existing model involved in-patient care in community units (Hughes Unit and Steward Lodge) and in acute mental health units (Linden in Weymouth, and Minterne in Dorchester), with respite housing at Blandford and Weymouth. The revised model replaced the in-patient care in community units with treatment in the patients’ homes and day-treatment services (at Hughes Unit, Stewart Lodge, Linden and Minterne); and it added crisis housing in Dorchester or Weymouth.[23]A final reference to the consultation document is in point. A section headed “Investing in community transport” read:
“We know that getting around Dorset is not easy for people without cars, so we are also investing money to support the development of community transport schemes that will be of benefit to patients.”
[24]On 23 April 2012 the interested party’s Director of Joint Commissioning and Partnerships sent the revised EIA and the consultation document to the chairman of the Dorset Health Scrutiny Committee of Dorset County Council.[25]On 24 May 2012, six days before the end of the consultation period, Dorset Health Scrutiny Committee held a meeting, at which was presented a report on “Recommendations arising from the meeting of the Task and Finish Group on Mental Health Urgent Care Services in the West of Dorset”. At the hearing of this claim, this report drew criticism, on the basis that it showed that the defendant and the interested party were pre-empting the results of a consultation process that had still not been completed. That criticism is unfair. The meeting was of a committee of the county council, not of a committee of the defendant or the interested party, and it appears that the Project was only one item on the agenda. Further, the report itself shows that it was prepared by the county council’s Health Partnerships Officer on behalf of the county council’s Director for Adult and Community Services. The report annexed the latest EIA and the consultation document and other documentation and made clear that the consultation process was ongoing. The report recommended that the Scrutiny Committee confirm its satisfaction that the NHS had fulfilled its duty to engage under sections 242 and 244 of the 2006 Act.[26]The Scrutiny Committee resolved that, while it was satisfied that the NHS had fulfilled its duty to engage under sections 242 and 244 of the 2006 Act, it be informed of any significant responses received during the final part of the further engagement period.[27]One of the documents before the Scrutiny Committee was a Summary Briefing Report from the interested party. Three points may be noted from the report. First, it was stated that no financial savings would be made as a result of the bed closures, because of the additional investment that would be made in locality-based services. Indeed, the Crisis House was an increased cost, being funded by the NHS by “new and additional funding of up to £250k”. Second, the report summarised population figures and data from a mental health needs index, which were said to show the need to concentrate in-patient resources in the west of Dorset around the areas of Weymouth and Dorchester. Third, the report recognised the fact that the proposals were a matter of concern to service users and their carers; it said:
“We are however convinced this is a more clinically appropriate model, and believe we have done all we reasonably can to provide reassurance, including the dual running of inpatient facilities and community services for a period of 6 months.”
[28]The matter of dual running of in-patient facilities and community services attracted a considerable amount of discussion at the meeting of the Scrutiny Committee on 24 May 2012. A number of passages from the minutes of the meeting give a sufficient indication of what was said. “The Director for Joint Commissioning and Partnerships [said that the] six month dual running would start once agreement to proceed had been reached. The Committee noted that additional funding had been received for the employment of additional staff to run services in tandem for six months. … The Director of Pan-Dorset Mental Health Services explained that it was difficult to find the perfect means on which to base their calculations. He expected demand for beds to reduce as the use of home treatment services increased and so he was not expecting an increased demand for beds. The six month period was long enough to demonstrate that the right services were in place prior to inpatients units closing. The Consultant Psychiatrist and Clinical Director explained that following a successful six month period, beds would be removed from the Hughes Unit to create space for more patient appointments and day treatment services. The Hughes Unit could also be used whilst the Linden Unit was rebuilt if this was necessary. … The Chairman stated that it was his understanding that the two services would run together for six months and that units would not close until all services were in place. It was now suggested that the six month period start immediately without the crisis house being available and that this would only just be in place at the end of the six month period. He suggested that the six month period should not start until the crisis house was available. The Director of Joint Commissioning and Partnerships explained that the crisis house was in addition to the revised services which could be introduced without the provision of a crisis house whereas the community health staff were essential to enable the dual running of services. The Chairman stated that originally reference had been made to crisis houses being available in each area but now only one was to be introduced to serve the whole of the West of Dorset. He considered this to be an essential part of the scheme and he reiterated his view that the six month period should not start until all services were in place, including the crisis house. The Consultant Psychiatrist and Clinical Director explained that some patients were currently in hospital beds when they could receive home or day treatment but had nowhere suitable to sleep. It was envisaged that people who currently used in-patient beds at the Hughes Unit or Stewart Lodge would go to the crisis house in future. He confirmed that beds would remain available at the Hughes Unit and Stewart Lodge during the six month period but at the end of this time the crisis house would be in place and the system would be working well.”[29]After the end of the consultation process, in June 2012 a further revision of the Equality Analysis took place. The following summary sections remained unaltered from the March revision and give the flavour of the Analysis:
“Summary of analysis: Taking current service provision as the benchmark against which the potential for differential impact is measured, it is anticipated that the proposed service would be better placed to meet the needs of people with protected characteristics; through the delivery of a proactive and integrated community based response to urgent need in a variety of different settings, that provides people with the greatest choice and control over their own lives through the adoption of recovery principles, that are focussed about the delivery of personalised care.” “What is the overall impact?: Overall the proposed model for urgent care mental health services with its focus on the delivery of recovery[-]focussed, person-centred care to people experiencing a mental health crisis would have a beneficial impact on the care received by people with protected characteristics, being better able to meet their particular care requirements.” “Addressing the impact on equalities: Where transport issues may be of a concern either for a service user, their carer or family, to and from inpatient facilities, this would be identified through the initial assessment, and supportive measures put in place. A review is taking place of community transport schemes, which seek to support the transport requirements of people accessing services across the Dorset health network, and will focus on the needs mental health users and their carers accessing this urgent care services. NHS Dorset will be supporting the infrastructure development of organisations providing community transport schemes.”
[30]The responses to the consultation were collated. These included at least eight responses received after the meeting of the Scrutiny Committee on 24 May 2012; of those, three responses were received after the official close of the process on 30 May 2012, the latest responses being dated 6 June 2012. During the hearing, I was at no stage referred to the contents of any of the responses received. The defendant subsequently confirmed to the Scrutiny Committee that no significant responses had been received after the meeting on 24 May 2012. Before me, the accuracy of that confirmation was not challenged; the complaint, to which I shall turn, was rather to the effect that an absence of information meant that it was difficult to make a significant response.[31]On 14 June 2012 the defendant made its formal decision to approve the reconfiguration of the services. There are no minutes of that meeting.[32]On 11 July 2012 solicitors instructed on behalf of the claimant, Scott-Moncrieff & Associates LLP (SMA), wrote to the defendant asking whether a formal decision on the reconfiguration of services had been taken. The letter raised numerous points said to raise questions over the legality of the consultation process; these included matters relating to budget/costs, transport, the lack of detailed information and the quality of the EIA. The letter requested, among other things, a copy of the budget showing the savings anticipated from the closure of the in-patient beds at the Hughes Unit.[33]On 13 July 2012 the defendant informed SMA that a formal decision had been taken. On 16 July 2012 it declined to release a copy of the budget.[34]I shall not summarise the subsequent correspondence, but I shall say something about what happened after the permission hearing on 16 January 2013.

After the permission hearing

[35]The grant of permission to bring this claim was made on agreed terms: first, that it should not itself be taken as interfering with the proposed closure of the Hughes Unit on 31 March 2013; second, that the parties hold a meeting, for the purposes of which the claimant would provide a list of questions.[36]SMA provided a list of 36 questions on 23 January 2013. The questions sought both reasons for aspects of the reconfiguration of services and information about the implementation of that reconfiguration. A response to the questions, running to seven pages, was provided on 31 January 2013. Four questions and their answers may be mentioned:
“1. What was the reason for the decision to move from the original proposal to have three crisis houses to the proposal to have a single crisis house? During the consultation process, and in response to demographic and performance data, it was decided that a seven-bedded house would provide sufficient crisis accommodation within the west of Dorset. Prior to the opening of any additional facilities performance would be reviewed by NHS Dorset to establish future service requirements. 7. Is it proposed that any patients will be transferred directly from the Hughes Unit and Stewart Lodge to the Crisis House? No, it is felt that it would not be appropriate for the Recovery House to operate as a step-down facility in this instance. 33. What steps have been taken to date by the Trust, NHS Dorset and/or Dorset County Council to address the concerns raised during the consultation about the transport problems in the county? NHS Dorset made a commitment to work with appropriate partner organisations to strengthen the community transport infrastructure. The anticipated outcome will be easier access to health related appointments for people who have difficulty in travelling. Currently a working group is meeting regularly under the Chairmanship of a Dorset County Councillor, to review the current provision of volunteer car driver schemes, identify where there are gaps and then implement plans to fill the gaps and provide better coordination. Improved coordination is likely to be provided by a single point of access on both sides of the County. There is great enthusiasm within the group and good progress is being made. 34. In light of the steps that have been taken, please explain how patients will be expected to travel from the available in-patient facilities or the Crisis House to their homes during the day and how carers, relatives and friends will be expected to travel to the available in-patient facilities or the Crisis House to visit service users (i.e. please indicate whether people without cars will be expected to use public transport, the ambulance service or some form of ‘community transport’). Volunteer transport schemes have and are being developed to support the needs of patients, service users and carers from across Dorset. These services are open to all people who wish to access health services.”
No, it is felt that it would not be appropriate for the Recovery House to operate as a step-down facility in this instance. Currently a working group is meeting regularly under the Chairmanship of a Dorset County Councillor, to review the current provision of volunteer car driver schemes, identify where there are gaps and then implement plans to fill the gaps and provide better coordination. There is great enthusiasm within the group and good progress is being made.[37]A meeting between the parties and their representatives took place on 8 February 2013, chaired by Professor Andrew Rutherford. The questions and answers were used as a basis for discussion. In the course of discussion about the transport issues, the defendant’s representatives indicated that there were ongoing discussions with the County Council and providers of voluntary services, such as the W.R.V.S., who had agreed to be part of the proposed transport systems. Transport would be available to and from the recovery houses. Ambulances “or more appropriate services” would be requested where required. The defendant’s Director of Mental Health Services “agreed that this was an area that needed to be clarified and that there was a need to consider and raise greater awareness” and said that he “would take these discussions back and discuss with the relevant parties”.[38]On 11 February 2013 the claimant submitted a note of remaining areas of concern. A response was given on 8 March 2013. A further letter from the defendant’s solicitors was sent on 12 March 2013. SMA replied on 13 March 2013. I do not need to recite the terms of those letters.[39]The upshot of all of this communication was a great deal of paper and effort but no agreement. Although the claimant’s case as presented before me has made reference to responses given by the defendant, it has been the claimant’s position that no amount of post-decision information can cure a defective consultation. That is accepted as correct by the defendant, albeit with an air of tired resignation. On the basis that it is good to talk, I cannot say that the efforts since 16 January have been entirely pointless. But nothing I have seen or heard has led me to form any view other than that the process that was undertaken could never have achieved resolution of these proceedings unless the defendant had agreed to re-open the consultation process or to make significant alterations in its plans. Any hope that the provision of further information would lead to acceptance of the existing plans by the claimant seems to me to have been quite forlorn. It is a pity that the parties embarked on the recent process of communications with such different expectations.

First ground of challenge: inadequate consultation

[40]The first ground of challenge to the defendant’s decision is that it failed adequately to consult with service users.[41]Section 242 does not impose a duty necessarily to consult the users of health services; consultation is one means by which the obligation to involve the users in the decision-making process may be satisfied. However, in the present case the defendant did carry out a process of consultation.

The law on consultation

[42]The requirements of a lawful consultation were identified by the Court of Appeal inR (Coughlan)v North and East Devon Health Authority [2001] 1QB 213:
“108. It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken (R v Brent London Borough Council, ex parte Gunning (1985) 84 LGR 168) …. 112 ... It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it might be quite onerous, goes no further than this.”
[43]For the purposes of this case, it will suffice to refer, by way of glosses on that statement of principle, to two further passages in the cases. In R (Wainwright) v Richmond upon Thames LBC [2001] EWCA Civ 2062, Clarke LJ, with whom Henry LJ and Wall J agreed, said:
“9. There remains an issue between the parties as to the extent of the consultation that discharge of the duty to notify and consult required. The underlying principles are not in dispute. They were identified by Mr Stephen Sedley Q.C. in argument in R v Brent LBC ex p Gunning (1985) 84 LGR 168 and were adopted by Hodgson J in his judgment in that case at p 189. They are: “First, that the consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third, that adequate time must be given for consideration and response, and finally, fourth that the product of consultation must be conscientiously taken into account in finalising any statutory proposals.” 10. Those principles were elaborated in this way by McCullough J in ex p Cran at p 38 as follows: “What kind and amount of consultation is required in a particular case must depend on the circumstances. A few general principles can however, be stated. The process of consultation must be effective; looked at as a whole, it must be fair. This requires that: consultation must take place while the proposals are still at a formative stage; those consulted must be provided with information which is accurate and sufficient to enable them to make a meaningful response; they must be given adequate time in which to do so; there must be adequate time for their responses to be considered; the consulting party must consider responses with a receptive mind and a conscientious manner when reaching its decision.” 11. So far as they go, those passages in my judgment correctly state the relevant principles. They do not, however, provide a complete answer to the question which arises for decision in this case. Thus, they do not address the question what is the necessary extent of the notification or consultation required in order to discharge the duty. As McCullough J pointed out, all will depend upon the circumstances. For example, a national project with wide implications for society as a whole will require far more extensive consultation than the installation of a pedestrian and cycle crossing. Provided that the notification and consultation satisfy the principles set out above, it appears to me that council must have a comparatively wide discretion as to how the process is carried out. The council cannot be in breach of duty unless the extent of the consultation process was such as to be outside the ordinary ambit of its discretion. In short, in order to be unlawful the nature and extent of the process must be so narrow that no reasonable council, complying with the principles set out above, would have adopted it.” “First, that the consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third, that adequate time must be given for consideration and response, and finally, fourth that the product of consultation must be conscientiously taken into account in finalising any statutory proposals.” “What kind and amount of consultation is required in a particular case must depend on the circumstances. A few general principles can however, be stated. The process of consultation must be effective; looked at as a whole, it must be fair. This requires that: consultation must take place while the proposals are still at a formative stage; those consulted must be provided with information which is accurate and sufficient to enable them to make a meaningful response; they must be given adequate time in which to do so; there must be adequate time for their responses to be considered; the consulting party must consider responses with a receptive mind and a conscientious manner when reaching its decision.”
[44]In Devon County Council v Secretary of State for Communities and Local Government[2010] EWHC 1456 (Admin) Ouseley J. said:
“68. What needs to be published about the proposal is very much a matter for the judgment of the person carrying out the consultation to whose decision the courts will accord a very broad discretion …. But, in my judgment, sufficient information to enable an intelligible response requires the consultee to know not just what the proposal is in whatever detail is necessary, but also the factors likely to be of substantial importance to the decision, or the basis on which the decision is likely to be taken …. 70 … a flawed consultation exercise is not always so procedurally unfair as to be unlawful; R (Greenpeace) v Secretary of State for Trade and Industry [2007] Env LR 29, Sullivan J … the true test is whether the consultation process was so unfair that it was unlawful ….”

The parties’ cases on consultation

[45]The claimant’s complaint about the consultation process is put on a threefold basis: that the consultation did not take place when the proposals were still at a formative stage; that the defendant did not approach the consultation with an open mind; and that the defendant failed to provide sufficient information to enable those consulted to engage meaningfully with the proposals. In argument, Ms Olley focused on the third point. The claimant’s witness statement in these proceedings suggests that she, for her part, regards the consultation as little more than a performance to clothe with legality a decision that had already been made and was never going to be altered; cf. paragraph 9 of the statement.[46]Regarding the first point (consultation at a formative stage), Ms Olley complained that the original proposal was changed between the initial engagement process in 2011 and the formal consultation that took place in the spring of 2012. In particular, any form of consultation before the latter period is irrelevant when considering compliance with the defendant’s duties, because the proposal had been fundamentally different: the original proposal was for three crisis houses in three different locations (paragraphs 9 to 11 above), whereas the later proposal was for a single crisis house. There was also a retreat from any commitment that the crisis house would be run alongside current in-patient provision for a six-month period.[47]Regarding the second point (consultation with an open mind), reliance was placed mainly on the supposed decision to report to the Scrutiny Committee six days before the consultation process ended and on the lack of evidence that the defendant took time to consider the responses to the consultation before making its final decision.[48]Regarding the third point (provision of information), the complaint related to two main areas, namely cost and transport. As for cost, Ms Olley submitted that merely to inform service users that the proposals were “cost neutral” and that the crisis house would be paid for from additional funding did not enable consultees to come to an informed view as to the viability of the proposals or, indeed, to assess whether the proposals were genuinely cost neutral. As for transport, the submission was made that the proposals relate to an area with poor transport links; the defendant gave no detail as to what investment was to be made in transport or how patients and carers would gain access to the new facilities if they did not have access to private transport.[49]For the defendant, Mr de Bono submitted that the consultation in the spring of 2012 could not be viewed in isolation from the earlier engagement process, particularly as the consultation was not intended to go over old ground. Far from being pre-determined, the proposals evolved during the earlier engagement process, and the consultation was on the basis of the revised proposals. So far as concerns supposed deficiencies in the information provided to consultees, the matter has to be viewed in context. In circumstances where there was no reduction in funding, the provision of detailed financial information was pointless and unnecessary. Transport was, and was known by all to be, a problem; but the defendant was entitled to take the view that difficulties over transport were not themselves determinative of the matter and to place reliance on the commitment of the interested party and the County Council to develop community transport schemes.[50]These very brief summaries of counsel’s detailed submissions do them little justice but must suffice for present purposes.

Conclusion on the first ground of challenge

[51]I reject the first ground of challenge, for the reasons appearing below.(1) It is as well to remember that the process of engagement and involvement with service users, including the consultation with them, did not turn the service users into decision-makers and was not intended to do so. The authorities on the lawful requirements of consultation do not have the effect of imposing on the decision-maker a requirement to provide to consultees all of the information that would be material to the decision-making process. This point was, effectively, accepted by Ms Olley, because she accepted that it was not a requirement of the consultation process that consultees be provided with detailed financial information. But it is well to keep the point in sight in the interests of proper perspective and realism.(2) There is also a practical consideration. If the purpose of the consultation is not to turn service users into surrogate decision-makers but to obtain input from them as people liable to be affected by any changes to the provision of services, it is by no means obvious that the process is well served by an overly technical or legalistic approach. The nature and purpose of the consultation cannot be ignored and the judicial decisions on lawful consultation do not require that they be so. A consultation by the Law Commission on reform of the law of easements, or by the financial services authorities on the practices of the City of London, is likely to be a very different animal from the consultation with service users in the present case. The approach that might be adopted in the former cases would be likely to be entirely self-defeating in the present context.(3) Ms Olley repeatedly suggested that everything that had happened before 23 April 2012 was irrelevant for the purposes of considering the adequacy of the consultation that commenced on that date, because the proposals had altered since their original publication and because the meeting of the Task and Finish Group on 9 March 2012 had acknowledged that the duties under the 2006 Act had not been complied with. I cannot accept that submission, at least in the way it was advanced. The alteration in the original proposals merely indicates that there was an ongoing process; it does not detract from the fact that the engagement with service users in late 2011 and early 2012 had been in performance of the duty under section 242. The alteration of particular aspects of the proposals was properly considered to require a further period of engagement (though the Task and Finish Group’s apparent belief that it required a formal consultation is at least open to question). However, this does not negate the steps that had already been taken. To ignore those steps is to uproot the consultation in the spring of 2012 from its context and to obscure the fact that it formed one part of the engagement with service users that had begun several months previously.(4) The context of the consultation also serves to answer the complaint that the consultation did not occur during the formative stages of the proposal. The engagement with the service users in performance of the statutory duty had commenced in the autumn of 2011. The proposals had developed during the period of engagement. One might have thought that this was a good thing, inasmuch as it tended to indicate that the defendant and the interested party did not approach the Project from the outset as a fait accompli or the proposals as written in stone. It is not altogether clear to me what the complaint against the defendant is. It can hardly be objected that the proposals should not have altered during the period of engagement. Nor can it reasonably be said that the defendant ought to have consulted in the autumn of 2011 on a proposal (namely, to have one Crisis House instead of three) that had not yet been made—unless it were said that the defendant always intended only to have one Crisis House and suppressed that intention for tactical reasons; but this has not been alleged before me.(5) The complaint that the defendant did not approach the consultation with an open mind was advanced diffidently by Ms Olley, though as I have said it appears to be at the heart of the claimant’s concerns. It is inevitable that a health authority or trust that identifies a need to make changes to the provision of services will have some clear views on why those changes are necessary and what they will involve. Those views will arise from a number of different factors, including matters of clinical judgment. If the health authority or trust wants to act upon its views rather than ignoring them, it will be bound to comply with its duty under section 242 and is entitled in doing so to consult with service users. It in no way follows that the process of engagement or consultation is a charade designed to lend a cloak of legality to a decision already made. I have been referred to nothing to demonstrate that the defendant was not engaging and consulting in good faith or that it had made up its mind to implement its proposals no matter what responses it received.(6) On behalf of the claimant, particular mention has been made of the meeting of the Scrutiny Committee on 24 May 2012; see paragraphs 25 to 28 above. I reject the contention that the report to that committee or the minutes of its proceedings show that the defendant prejudged the outcome of the consultation process. In the light of the facts that I have already set out, it is quite wrong to suggest that the defendant sought to curtail the process or made a decision before it was completed.(7) I also reject the contention that the defendant failed to have regard to the consultation when making its decision. The point is rightly made that the defendant did not adduce evidence in respect of the decision-making process relating to the decision on 14 June 2012; that omission was unfortunate, the more so since there are no minutes of the decision. However, the burden of establishing illegality rests on the claimant. The decision was not made until a full fortnight after the close of the consultation, and the consultation responses, which are in evidence, do not indicate any good reason to suppose that a longer period would have been required to make any properly considered decision.(8) The nub of the claimant’s case, as advanced before me, was not that the results of the consultation had been ignored but that insufficient information had been provided to service users to enable them to engage with the process in a meaningful way. I reject that criticism. In my judgment the defendant provided sufficient information about the proposals to enable service users to make informed responses in respect of the range and delivery of services and the effects of the proposed alterations on them and other service users.(9) There is an air of unreality about the complaint that the defendant did not provide to the consultees sufficient information to enable them to assess the financial viability of the proposals. The duty on the defendant was to involve the service users in the proposals; there was no duty as such to consult. The defendant chose to discharge its duty by means of a process of engagement that included a period of consultation in the spring of 2012. The consultation that was carried out was required to be carried out lawfully: it had to be real and meaningful consultation. That is not to say, however, that the scope of the consultation was required to be unlimited or even wider than it was. The defendant did not seek service users’ views on financial viability because the proposals were advanced as being cost-neutral. I can see no sound reason why the defendant should have been required to consult service users on financial viability. In the circumstances of this case, having regard both to the defendant’s financial assessment of the proposals and to the purpose of the consultation, the defendant’s decision as to the extent of the information to be published fell well within the broad discretion of the defendant.(10) As Mr de Bono accepted, transport issues have been a continuing problem in respect of the provision of mental health services in the west of Dorset. This is principally because the part of Dorset in question is a large rural area with (I am told) relatively poor public transport services. However, the transport problem is not a matter of surprise arising after the consultation was over and the proposals were implemented; it was understood to be a problem and formed the basis of a number of representations against the proposals. The transport issue was identified in the consultation document itself; see paragraph 23 above. The complaint is made that the defendant’s comments on transport were vague and unspecific and have remained so. I accept that there is some force in that complaint. However, I do not consider that this is a deficiency giving rise to unfairness such as to make the consultation unlawful. In particular, the simple fact appears to have been that the information provided to service users accurately reflected the ill-defined state at which proposals to address the transport issues had arrived; the defendant was not withholding information but accurately reflecting the lack of concrete plans to provide transport solutions. The consultation raised the question of transport squarely and did not withhold material information but gave to the service users the opportunity to make their concerns and requirements known. Despite the somewhat amorphous nature of the proposals for transport, the defendant’s decision to approve the proposals has not been challenged, and cannot now be challenged, on the basis that it was irrational, having regard to the inadequacy of the arrangements made for transport. In fact, recent responses by the defendant to the claimant’s enquiries have indicated that the interested party is now in the process of commissioning a new patient transport system that is due to commence operation in April 2013.(11) It seems to me that, though transport remains an issue for the provision of mental health services, it arises in the context of this case largely as a result of a lack of meeting of minds. At the centre of the reconfiguration of the services is a move away from in-patient treatment to home treatment. The point of closing the in-patient facility at the Hughes Unit is not to move the patients to in-patient facilities further afield; it is to provide treatment for them at home. Although it is true to say that, where in-patient treatment is required, fewer centres will be available and the potential for increased journeys will exist, the reconfiguration involves a reduction and not a relocation of beds. The basic model being implemented is likely to have the natural effect of decreasing rather than increasing the incidence of travel. In his letter dated 13 March 2013 to the defendant’s solicitor, the defendant’s Director of Mental Health Services made the following pertinent observations: “[I]f someone is well enough to leave hospital as and when they wish (i.e. are not subject to detention under the Mental Health Act) and there are no risks associated with them leaving hospital and travelling home, then that person should not be in hospital, as people who suffer with metal ill health should be treated in the least restrictive environment. … Therefore, if someone is well enough to travel home for the day, we should be facilitating their discharge. If, however, as part of their recovery, someone has section 17 leave from their detention under the Mental Health Act, it would be the hospital’s responsibility to ensure transport is available to support that person … [The claimant has expressed] concerns with regards to the difficulty carers will face in visiting their loved ones when they are in a hospital which is further away from their home. I appreciate this concern, unfortunately, there is little I am able to do to improve this. The NHS is not resourced to provide transport for carers to visit people while they are in hospital.”(12) Although some complaint was made concerning the alterations of the proposals from autumn 2011 to the spring of 2012, the consultation under challenge took place squarely on the basis of the proposals as they stood at the time. The claimant has come nowhere near establishing that any unfairness arose from a failure to involve the service users with proposals as they fell to be considered.(13) In conclusion, the engagement with service users pursuant to section 242 of the 2006 Act and the consultation that formed part of that process were conducted lawfully. It was for the defendant to judge what information to disclose for the purposes of the consultation and that judgement had to be exercised with regard to the factors that were liable to affect the ultimate decision on the proposals and to the purpose of the consultation. In that regard, the decision was a practical one; the edge of the consultation might as well be dulled by a surfeit as by a lack of information. I hold that the manner in which the defendant approached the consultation was well within the scope of its discretion, and I reject the contention that the consultation was so unfair that it was unlawful. Second ground of challenge: equality The public sector equality duty: law

Second ground of challenge: equality

[52]The starting-point for consideration of this second ground of challenge is the public sector equality duty imposed on the defendant by section 149 of the Equality Act 2010, the most relevant provisions of which are 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. (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. age; disability; gender reassignment; pregnancy and maternity; race; religion or belief; sex; sexual orientation.”
[53]The principles pertaining to the discharge of the public sector equality duty appear from the judgment of the Divisional Court (Scott Baker and Aikens LJJ) in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), which was a decision on the relevantly similar section 49A (1) of the Disability Discrimination Act 1995:
“89. … [W]e do not accept that either section 49A(1) in general, or section 49A(1)(d) in particular, imposes a statutory duty on public authorities requiring them to carry out a formal Disability Equality Impact Assessment when carrying out their functions. At the most it imposes a duty on a public authority to consider undertaking a DEIA, along with other means of gathering information, and to consider whether it is appropriate to have one in relation to the function or policy at issue, when it will or might have an impact on disabled persons and disability. … 90. Subject to these qualifications, how, in practice, does the public authority fulfil its duty to have “due regard” to the identified goals that are set out in section 49A(1)? An examination of the cases to which we were referred suggests that the following general principles can be tentatively put forward. First, those in the public authority who have to take decisions that do or might affect disabled people must be made aware of their duty to have “due regard” to the identified goals …. Thus, an incomplete or erroneous appreciation of the duties will mean that “due regard” has not been given to them …. 91. Secondly, the “due regard” duty must be fulfilled before and at the time that a particular policy that will or might affect disabled people is being considered by the public authority in question. It involves a conscious approach and state of mind. … Attempts to justify a decision as being consistent with the exercise of the duty when it was not, in fact, considered before the decision, are not enough to discharge the duty …. 92. Thirdly, the duty must be exercised in substance, with rigour and with an open mind. The duty has to be integrated within the discharge of the public functions of the authority. It is not a question of “ticking boxes”. … 93. However, the fact that the public authority has not mentioned specifically section 49A(1) in carrying out the particular function where it has to have “due regard” to the needs set out in the section is not determinative of whether the duty under the statute has been performed: see the judgment of Dyson LJ in Baker [R (Baker) v Secretary of State for the Environment [2008] EWCA Civ 141] at paragraph 36. But it is good practice for the policy or decision maker to make reference to the provision and any code or other non-statutory guidance in all cases where section 49A(1) is in play. “In that way the [policy or] decision maker is more likely to ensure that the relevant factors are taken into account and the scope for argument as to whether the duty has been performed will be reduced”: Baker at paragraph 38. 94. Fourthly, the duty imposed on public authorities that are subject to the section 49A(1) duty is a non-delegable duty. … 95. Fifthly, (and obviously), the duty is a continuing one. 96. Sixthly, it is good practice for those exercising public functions in public authorities to keep an adequate record showing that they had actually considered their disability equality duties and pondered relevant questions. Proper record-keeping encourages transparency and will discipline those carrying out the relevant function to undertake their disability equality duties conscientiously. If records are not kept it may make it more difficult, evidentially, for a public authority to persuade a court that it has fulfilled the duty imposed by section 49A(1) ….”
[54]Among the many cases that have considered section 149 of the 2010 Act, I need refer only to the very recent judgment of Supperstone J in R (Buckley) v Sheffield City Council [2013] EWHC 512 (Admin):
“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.” “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.” “…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. …” “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.”

The parties’ cases on equality

[55]For the claimant, Ms Olley submitted that neither the defendant nor the interested party had adduced any evidence to demonstrate that the duty under section 149 had been addressed, far less that it had been complied with, by the defendant. The defendant had served no witness statements, and there were no minutes of the meeting on 14 June 2012, at which the decision under review was made; there was nothing before the court to show what matters were brought to the attention of the decision-makers or what was in their minds. In those circumstances, the basis for inferring compliance with the public sector equality duty could only be the contents of the EIAs undertaken on behalf of the defendant. As those EIAs were admittedly deficient, they could not demonstrate compliance with the duty. Further, as the defendant was required to comply with its duty at the time of the decision under review, nothing that had occurred since the making of the decision or, in particular, the grant of permission to apply for judicial review, could cure a breach of duty.[56]For the defendant, Mr de Bono accepted that the public sector equality duty was engaged in this case and that, if the defendant was in breach of duty when it made the decision under review, subsequent events could not cure that breach. However, he submitted that the defendant was not in breach of its duty. That the duty was in the minds of the decision-makers was indicated by the contents of the minutes of the Scrutiny Committee both before and during the period of the formal consultation. More importantly, the issue at the heart of the equality duty was in this case the very issue for decision and consultation, namely how best to reconfigure services for the benefit of mental health service users. This might (he suggested) explain why the claimant’s case in respect of the second ground of challenge proceeded at a high level of generality and lacked any substantive content, for example as regards the identification of any factors that should have been considered but were not.[57]I reject the second ground of challenge, for the reasons appearing below.(1) The burden is on the claimant to establish a failure to comply with section 149 (1). It is not on the defendant to prove that it has complied with that provision. Therefore the fact that the defendant and the interested party have not filed witness statements in respect of compliance does not itself determine the case against them, though when taken in conjunction with the lack of minutes from 16 June 2012 it makes the defendant’s position more difficult; cf. R (Brown), paragraph 53 above.(2) It is in my judgment completely obvious that the defendant had the public sector equality duty well in mind. This appears from the narrative that I have set out above and, in particular, from the fact that an Equality Analysis was procured and repeatedly reviewed and from the minutes of the meeting on 9 March 2012 of the Task and Finish Group.(3) Further, as Mr de Bono says, one cannot ignore the nature of the decision in question. If the decision were, for example, to replace the municipal bus fleet with buses of a different design, one might well have cause to ask whether the authority had borne its equality duty in mind (for example, are the buses capable of being used by people with a disability or in a wheelchair?). But in the present case the decision was specifically in respect of the provision of services to persons with a relevant protected characteristic, and the relevant protected characteristic was the reason for the provision of services to them. It does not necessarily follow that the defendant had “due regard” to the need to advance equality of opportunity. But reference to the nature of the decision does make the claimant’s contention that the defendant failed to have due regard rather less plausible.(4) The public sector equality duty is not a back door by which challenges to the merits of decisions may be made. The defendant remains the decision-maker and its decisions remain lawful whether or not this person or that agrees with them. Unlawfulness for these purposes will exist only if, as a matter of substance rather than of form, there has been a failure to comply with the duty. I repeat the words of Dyson LJ in R (Baker), cited in paragraph 54 above: “it is important to emphasise that the … duty is not a duty to achieve a result …. 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.”(5) The furthest that the claimant’s case under section 149 goes is, as it seems to me, that the EIA was deficient. The defendant accepted that the EIA could have been more thorough. I agree with Mr de Bono, however, that the deficiencies in the EIA were not such as to give rise to a breach of the duty under section 149. First, an EIA is not itself a requirement of the Act; it is a tool whereby a decision-maker may inform its efforts to comply with section 149. Second, it is quite wrong to subject EIAs to minute forensic analysis. To do so would be likely to stultify public decision-making and would rest, in my view, on a misunderstanding of the statutory duty. Third, Ms Olley’s submission that the Equality Analysis in August 2011 was immaterial, as having been acknowledged by the Scrutiny Committee to be inadequate, and that the later analyses were too late in the process is in my view unjustified. The Equality Analysis was kept under review; this was entirely proper. The first version pre-dated significant changes to the proposals and was for that reason inadequate; but that is not to say that there was anything wrong with it, merely that matters had moved on. The later revisions are only capable of being criticised for being too late in the process if one chooses to ignore that they are revisions of an earlier exercise. Fourth, the specific criticism of the analysis relating to transport (cf. the text at paragraph 29 above) has substance only inasmuch as it points out that transport was a problem to which no detailed solution had been formulated. However, as I have already mentioned, the general solution had been identified and it was appreciated both that the details had to be “firmed up” and that the needs of each specific case would be subject of an assessment in the normal way. The defendant clearly considered the transport issue. It was not bound to take the view that supposed transport difficulties were a determinative objection to its proposals. Fifth, the claimant has not demonstrated any other matter of substance that tends to indicate that the impact of the proposals on persons with relevant protected characteristics has not been duly considered, although it is clear that she does not agree with the defendant’s conclusions. Sixth, in circumstances where clinical considerations (viz. relating to persons with relevant protected characteristics) are said to have driven the proposals and are inherently likely to have been of primary importance in the formulation and assessment of the proposals, I cannot help thinking that the second ground of challenge rests on a certain kind of legalism rather than on realism.

Conclusion

[58]For the reasons given, this claim is dismissed. _________________________

Cited in 3 later judgments