R (Williams & Ors) v Surrey County Council [2012] EWHC 867 (QB)

Cs claimed that D’s decision to restructure its library services was taken without due regard to the public
sector equality duty (“PSED”). The Administrative Court ruled that D’s decision was unlawful and they had
failed to have “due regard” to the PSED.

Facts

D was under pressure to reduce spending. It conducted a review of its library service and took the decision
that the lowest scoring libraries would be subject to a Community Partnership model (”CPL”) approach
and would become staffed by volunteers. A lengthy consultation was embarked upon which included
holding meetings on the subject with Disability Empowerment Boards (DEBs). D had conducted a full EIA
of its library services in March 2008 and separate EIAs on discrete areas thereafter. A Public Value Review
Report in February 2011 included consideration of “Equalities impiications”. Cs argued that there was no
EIA subsequent to February 2011 and D did not have regard to the equality issues identified of the need
for training for volunteers. It was argued that these training needs were not addressed in the September
report upon which the decision to proceed with the project was based. Ds submitted that no more needed
to be said in the September report and that it had grappled with the need for training in the previous
report.

Held

One legal issue in dispute was whether the test for whether D had had ”due regard” was a matter to be
determined by the Court or whether it was a matter for D subject to challenge on Wednesbury grounds.
The Court decided that the correct reading of the caselaw in this area sets out that at the first stage, the
question of whether there has been “due regard” is for the Court. However, once there has been a
determination of “due regard”, whether the decision then taken was lawful can only be negated if C
establishes Wednesbury unreasonableness (para 20, 24).

C5 succeeded. D had failed to have “due regard” to the PSED. The failure to have regard to a relevant
consideration, namely the provision of training of those who would staff the CPLs as volunteers also
rendered the cabinet’s decision Wednesbury unreasonable. D had erred in law by concluding that no new
equality impact issue had arising in the course of consultation after February 2011 and that when it had
given “due regard” to issues in February 2011 that remained sufficient to satisfy the duty in September
when considering their substantive decision to proceed with the CPLs.

Comment

The law on whether a public authority has given “due regard” to the PSED is well-established and is
helpfully summarised in para 16 of the judgment of Mr Justice Wilkie.

It was clear from the judgment that what had swayed the court was the preliminary nature of the
consultation in February 2011. The judge also criticised the “bland assertions that training would be
required and monitored” (para 127) as falling substantially far short of demonstrating compliance with the
duty. This should provide guidance to public authorities that they should fully consider the equality issues
inherent in any proposal and make sure decisions are taken on up-to-date information.