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The Public Sector Equality Duty, the Duty to Consult and Cuts to Budgets

on Wednesday, 19 September 2018.

On 3 August the High Court sitting in Bristol handed down judgement in a judicial review brought by parents in Bristol about the City Council's proposed reduction of approximately £5 million to the 'high needs block' special education needs (SEN) budget.

(R (ota) (1) KE (2) IE (3) CH - and - Bristol City Council [2018] EWHC (Admin) 2103)

The challenge was brought on 5 grounds:

  1. a failure to consult, by the City Council when it was required to do so
  2. breach of the public sector equality duty (PSED) in s.149 of the Equality Act 2010
  3. breach of s.11 of the Children Act
  4. breach of s.27 of the Children and Families Act 2014
  5. breach of the common law requirement to act reasonably, to take into account all relevant considerations, and to ask and answer the right questions (the duty of sufficient inquiry)

The Claimants succeed on all grounds. The Court clarified how the law should be interpreted and applied and set aside the City Council's decision to reduce the 'high needs block' budget allocation. The City Council therefore now has to reconsider its funding allocation in this area in light of the resources available.

Although the case was brought in connection with the City Council's proposals to cut the 'high needs block' SEN budget, the judgement is particularly interesting from a public law perspective as it gives an in depth view of the public sector equality duty (PSED), and its implication for public body decision makers, and also the extent of the duty of 'sufficient inquiry', pointing out that context is everything.  

HHJ Judge Cotter Q.C. found that "consideration of the issue of whether there has been due regard to the listed equality needs requires analysis of substance not form. There is by implication a duty of inquiry upon any decision maker who must take reasonable steps to inquire into the issues, so that the impact, or likely impact, of the decision upon those of the listed equality needs who are potentially affected by the decision can be understood. […] this may require no more than an understanding of the practical impact on the people with protected characteristics who are affected by the decision […]. However, it may require much more, including consultation. Context is everything."   

This judgement emphasises the need in times of budgetary constraints for local authorities to carefully consider the impact that cuts in budgets will have to members of the local community with protected characteristics. We are aware that other local authorities are facing challenges of a similar nature to their proposed SEN funding decisions. 

For more information please contact Tracey Eldridge-Himners on 020 7665 0802.

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