High Court upholds challenge to Barnet and Portsmouth service changes

A High Court judge has quashed plans by the London Borough of Barnet and Portsmouth City Council to change the way they provide support to people living in sheltered accommodation.

Barnet had sought to terminate contracts for on-site warden based services and in its place develop a peripatetic support service with the retention of an alarm service. The initiative was expected to save the council some £400,000 a year.

Five claimants – two of whom were disabled within the meaning of section 1 of the Disability Discrimination Act 1995– argued that Barnet had failed to fulfil its statutory duties under section 49A(1) of that Act. They also claimed that the council had neither followed its own equality scheme (because it did not sufficiently involve disabled persons or groups representing their interests in the decision-making process), nor followed the Disability Rights Commission's statutory code in assessing the impact of the proposals.

Barnet rejected the claims, insisting that it had complied with its duty under the 1995 Act in substance and had carried out a robust consultation exercise. The London borough also said there was no duty to carry out a full equality impact assessment.

In the Portsmouth case, the cabinet member responsible for housing decided to terminate the provision for sleep in, night-time staff at each of its category 2.5 sheltered housing schemes and replace it with a mobile night service. A preliminary impact assessment had been conducted by a policy development manager in the council’s housing service, who concluded that the changes would have no adverse effect or impact on members of equality groups, including disability groups. The council's scrutiny committee subsequently approved the decision.

In this instance, the claimant was in his mid-sixties, registered blind and with mobility and other health issues. Portsmouth rejected similar claims to those in the Barnet case that it had breached its duties.

Judge Milwyn Jarman QC ruled that while the decision-makers in the two cases may have had a general awareness of their duty under the 1995 Act, this “does not amount to a substantial rigorous and open-minded approach”. Although in each case the residents concerned – including those with disabilities – were questioned and consulted, this was part of an approach to residents as a whole, he said.

The judge added that while both councils had some regard to the impacts on residents as a group, “neither authority in my judgement had any or sufficient regard to such an impact upon those residents with disabilities as a separate group or to the need to recognise that the taking into account of those disabilities may involve treating disabled persons more favourably than others.”

He added that references in the documentation before the decision-makers in each case to disabilities or to rights of equality “do not fulfil the requirement of such recognition. Nor does a general awareness amongst officers or decision-makers of the duty under section 49A(1).”

The judge found that Barnet’s consultation exercise “amounted to the sort of involvement envisaged by the DES (Disability Equality Scheme)”, but “the same cannot be said of Portsmouth”. The latter’s exercise, which failed properly to involve the residents affected, was “inadequate”.

He added: “I have come to the conclusion that the failings in each case are sufficiently serious for the decision to be quashed and for the matter to be reconsidered.”

In a statement, Barnet welcomed the judge’s findings on the extent of its consultation, and pointed out that the majority of complaints were either abandoned by the claimants or rejected by the court.

“However, the judgment suggests that a council has to demonstrate that every member, not just officers, involved in the decision making gave full and stated consideration to all relevant legislation and guidance,” it said. “This raises profound issues for the working of local government.”

The council also warned that reform, which is vital in the current economic circumstances, “could become almost impossible” and that “every reform has the potential to become a protracted legal challenge”.

Barnet will meet with lawyers later this week with a view to lodging an appeal. “The pressing need to reform our warden service, which reflects an outdated and unbalanced model of supporting older people, and is not available to people who remain in their own homes, is as strong as ever,” it said. “The status quo is as open to challenge as any change.”