R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin)

18 December 2008

Link to judgement

Discrimination grounds

Summary of case
The case involved the proposal to close an accessible local post office and whether in making proposals to reduce post office services, the postal service had given adequate consideration to their Public Sector Equality Duty in respect of disability.

The Court set out some general principles about the steps a public authority should take to comply with the Duty to give ‘due regard’ to the relevant equality needs. These include that:

a. When a public authority makes decisions that do or might affect an equality group, it must be made aware of its duty to have due regard to the equality goals in the Equality Duties. An incomplete or erroneous appreciation of these Duties will mean that ‘due regard’ has not been paid.

b. The ‘due regard’ must be exercised with rigour and with an open mind. It is not a question of ‘ticking boxes’. The Duty has to be integrated within the discharge of the public functions of the authority. It involves a conscious and deliberate approach to policy-making and needs to be thorough enough to show that ‘due regard’ has been paid before any decision is made.

c. If the public authority has not specifically mentioned the relevant general Equality Duty when carrying out a particular function, this does not mean that the Duty to have ‘due regard’ has not been performed. However, it is good practice for the policy itself or the public authority to make reference to the Duty and any code or other non-statutory guidance. This will reduce the chance of someone successfully arguing that ‘due regard’ has not been paid to equality considerations. This is also likely to enable a public authority to ensure that factors relevant to equality are taken into account when developing a policy.

d. It is good practice for public authorities to keep an adequate record showing that they had actually considered their Equality Duties and pondered relevant questions. Appropriate 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 will be difficult, evidentially, for a public authority to persuade a court that it has fulfilled its general Equality Duty.