Court of Session finds Council's closure of day care service unlawful

A recent decision in the Outer House found that a local authority's decision to decommission a local day care service was unlawful as a result of the failure to carry out an equality impact assessment. Public authorities are required under Regulation 5 of the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012/162 to assess the impact of applying a proposed new policy against the needs mentioned in the public sector equality duty.

Background

The petitioner had attended a day care service for adults that was operated by Scottish Borders Council. In June 2019, the Council's Executive Committee agreed to decommission individual day care services where suitable alternatives were identified. As a result of the pandemic, the service stopped operating in March 2020. It had never reopened. The petitioner brought a challenge by judicial review against the Council's decision, claiming it was unlawful as no equality impact assessment had been carried out prior to the decision having been taken. They also challenged the Council as having had neglected to fulfil its duties to service users and that service users had a legitimate expectation to be consulted on the proposed closure of the service.

The Council's position was that although the decision had been made to close the service, the actual closure was conditional on suitable alternative provision being available for service users. The Council relied on events that had happened prior to the June 2019 Committee meeting, in particular a meeting that took place in March 2019 which the Council argued amounted in substance to a consultation.

The decision

Lady Carmichael decided in favour of the petitioner. She found that the decision to close the day care service was unlawful. The Council had failed to perform its statutory duty in terms of the public sector equality duty, and it had frustrated the legitimate expectations of the petitioner to be involved in the consultation process. Lady Carmichael looked at the two grounds of challenge in turn when reaching her decision:

The public sector equality duty and equality impact assessment

On the first ground, she found that although the Council had carried out an equality impact assessment it referred generally to the decommissioning of existing day care services, rather than the specific service that was the subject of the petition. The equality impact assessment also contained no relevant evidence from service users. Lady Carmichael was satisfied that the Council had not fulfilled its duty to consult with service users, in the absence of which the equality impact assessment was not properly conducted.

The Council's contention that it had regard to the needs of individuals who had the protected characteristics of age and disability was rejected by Lady Carmichael. She found that the duty on local authorities is not confined to considering the impact of a new policy on existing service users, but it must also have due regard to the needs identified in the Equality Act 2010 which relate to persons with protected characteristics more generally. Lady Carmichael was satisfied the Council had failed to have regard in particular persons with needs similar to those of the petitioner, and additionally no alternative provision was found for the petitioner either.

Consultation

In terms of the consultation process, Lady Carmichael found that the consultation meeting in March 2019 was held at very short notice and did not let persons with an interest know in clear terms that the proposal was to close the service. The meeting was described as an opportunity for council officers to "describe the vision for transformation" and it was not clear from this that the proposal was actually to close the service.

Lady Carmichael was satisfied the meeting was not held at a formative stage in the proposal, and the language used by council officers at the meeting indicated there was a clear plan to decommission the service. The decision was moderated only to the extent of delaying the closure until the individual needs of the service users had been met. At the time of the meeting in March 2019, the Council was not open to the possibility that the service would not be decommissioned. The meeting therefore lacked a number of essential features of consultation and was unlawful.

What does this judgement mean?

This recent judgement highlights the purpose of the public sector equality duty and equality impact assessments and the obligation on public authorities to have due regard to all groups who may be affected by their decisions. Councils will note the importance of engaging with and involving service users and relevant stakeholders at an early stage in the consultation process and ensuring that this is a transparent and open process that provides adequate notice of and opportunity to respond to proposals that are being consulted on.