Recent court cases have revealed the important role of equality duties can play in challenging decisions to cut public sector spending. Birmingham City Council has for instance been subject to two successful challenges in recent weeks. Amongst these was the decision of the Council to stop funding legal advice services in order to reduce its budget (Rahman) v. Birmingham City Council [2011]). Withdrawal of funding would have led to a severe reduction in the services that were offered by three voluntary organisations advising ethnic minorities and disabled people on their legal entitlements.
The Council was challenged (amongst other things) for breach of the Public Sector Equality Duty (PSED), in particular with regard to race and disability. While the Equality Act 2010 (brought in to reform and harmonise equality law) will now be the statute to be used in such cases, in framing his decision, the judge in this case referred to the earlier statues as the facts of the case took place before the coming into force of the single equality duty.
The judge noted that the Council failed to have due regard to its equality duties. The initial decision was unlawful because there was no evidence that the council was aware of its equality duties. And although by the time of the second decision, the Council was aware of the equality impact assessment that assessment was also defective because it seemed to have been ‘driven by the hopes of the advantages to be derived from a new policy rather than focussing upon the assessment of the degree of disadvantage to existing users of terminating funding arrangements until new arrangements can be put in place’. This looked like ‘policy based evidence rather than evidence based policy’.
The judge also found that even where the context of the decision was a local authority’s limited financial resources, that did not excuse compliance with the equality duties. He observed that ‘even in straitened times the need for clear, well-informed decision making when assessing the impacts on less advantaged members of society is as great, if not greater’.
In some of the early cases, the courts have traditionally given an extremely wide margin of discretion to local authorities in budgetary decisions. However, recent cases have emphasised that the courts will hold local government to account for failing to have in mind the equality duties, even when this involves overruling cuts decisions. It is still unlikely that any judge will directly interfere in the financial decision of a local authority, but courts will have to be persuaded that due regard was paid in the decision-making process, including that alternative options to where savings can be made were considered where there is potentially an adverse impact. It is fairly likely that similar legal actions be mounted in the months to come.
The outcome was that Birmingham Council reinstated the funding until March 2012, then groups will have to follow the tendering process. Below is a link to a full copy of the judgment.
http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/birmingham-city-council-19052011.pdf
Howzat!