R (Rajput and Shamji) v London Borough of Waltham Forest; R (Tiller) v East Sussex County Council [2011] EWCA Civ 1577


In the first appeal, both Cs were disabled and sought judicial review of a decision by D to close the Crownfield
Road day centre in Stratford whilst providing what they saw as an inadequate alternative. An Equality Impact
Assessment had been completed. Cs contended that D had failed to take into account specific potential
disadvantages to disabled persons and had made the unwarranted assumption that it could proceed and
mitigate any negative effects on a case-by-case basis. In the second appeal, C was a tenant in a sheltered
housing site owned by Lewes District Council, the majority of the funding for which was provided by East Sussex
County Council. In October 2009 a decision was taken to discontinue 24/7 warden service at the sheltered home
and replace it with an on-site manager during working hours and an alarm-operated ”telecare” system out-of-
hours. C sought judicial review inter alia on the basis that the decision was unlawful for failing to take in account
the potential effect on tenants, particularly disabled tenants contrary to D's disability equality duty.


The Court of Appeal (Lord Justice Rimer) at paragraphs 29 — 30 of their judgment summarised the principles set
out in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) governing the
application and implementation in practice of the public sector equality duty.

In the Tiller appeal, the Court of Appeal held that although the report the decision maker relied upon and his
reasons for accepting its recommendations could have been fuller, and although it would have been good
practice to refer to the duty imposed by 5 49A DDA 1995 explicitly and to explain how the decision maker had
discharged that duty the decision maker had not actually failed to comply with the duty. The decision maker had
been aware of D's obligations to have “due regard” and his reasons for the decision show that he was satisfied
that the alternative proposed arrangements would provide the tenants with sufficient support and care.

The issues were very narrow on the appeal in Rajput. In fact, Cs had had their argument rejected summarily
below by Calvert-Smith J, who had simultaneously discharged D from an undertaking that they should give 14
days notice to C5’ solicitor of any proposed physical change or future use of the Crownfield centre. By the date
of the hearing, the site had already been converted to a Resource Centre and had been fully operational since
July 2011, rendering the question under appeal academic. The Court reminded Cs that judicial review was a
discretionary remedy and in deciding whether to grant permission the court was entitled to look at the case
overall. They would take account of any lack of urgency by the C5 in pursuing their case and any detriment to
good administration caused by their failure to do so. On the facts, the undue and unexplained delay in
responding to the new situation resulting from the discharge of the undertaking undoubtedly had been
prejudicial to good administration and justified the Court of Appeal in confirming the refusal of permission.


The judgment from the Court of Appeal provides a useful summary of the principles governing the disability
equality duty under the old law which are equally applicable to the new public sector equality duty under s 149
of the EA 2010. It also offers a reminder that judicial review is a discretionary remedy and claimants who do not
pursue their claim quickly and expeditiously are unlikely to be successful.

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