SCTSPRINT3

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 117

 

P407/14

OPINION OF LORD UIST

in the petition of

HONOR WATT

for Judicial Review of a decision of Lothian Health Board to withdraw the provision of homeopathic services.

Petitioner:  Mitchell QC, Gibson;  Drummond Miller LLP

Board:  Khurana;  National Health Service Central Legal Office

28 August 2015

Introduction
[1]        On 26 June 2013 Lothian Health Board (“the Board”) decided (i)  to cease provision of an NHS homeopathy service in Lothian and cease referral to the Glasgow Homeopathic Hospital from 1 April 2014;  (ii)  to honour the current Service Level Agreement with NHS Greater Glasgow and Clyde in respect of the referral of patients to the Glasgow Homeopathic Hospital for a period of 2 years;  (iii)  to review the clinical needs of patients who use the homeopathy service funded by the Board and also based on current evidence look to re‑invest the funding into NHS healthcare of clinical value such as pain and chronic pain, palliative and chronic fatigue services in line with the aims of NHS Lothian’s strategic clinical framework.  In these proceedings the petitioner seeks reduction of that decision on the ground that it was unlawful as it was taken without due regard, in terms of section 149 of the Equality Act 2010 (“the Act”), to t.he need to eliminate discrimination prohibited by the Act et separatim the need to advance equality of opportunity between persons who shared the relevant protected characteristics under the Act and those who did not share them.

 

Section 149 of the Equality Act 2010
[2]        Section 149 of the Act imposes on public authorities what it calls a public sector equality duty (PSED).  It provides as follows:

“(1) A public authority must, in the exercise of its functions, have due regard to the need to –

 

  1. eliminate discrimination, harassment, victimisation and any other conduct that is prohibited under this Act;

     

  2. advance equality of opportunity between persons who share a relevant protected characteristic and those who do not share it;

     

  3. foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

 

(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).

 

(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to –

 

(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

 

(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;

 

(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

 

(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities.

 

(5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to -

 

(a) tackle prejudice, and

 

(b) promote understanding.

 

(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.

 

(7) The relevant protected characteristics are –

 

age;

disability;

gender reassignment;

pregnancy and maternity;

race;

religion or belief;

sex;

sexual orientation.

 

(8) A reference to conduct that is prohibited by or under this Act includes a reference to -

 

(a) a breach of an equality clause or rule;

(b) a breach of a non-discrimination rule.

 

(9) Schedule 18 (exceptions) has effect.”

 

It is accepted that the Board is a public authority and bound by the PSED under section 149 of the Act.

 

The Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012
[3]        The Board is a listed authority for the purpose of these regulations, which came into force on 27 May 2012.  Regulation 5 provides as follows:

5 – Duty to assess and review policies and practices

 

  1. A listed authority must, where and to the extent necessary to fulfil the equality duty, assess the impact of applying a proposed new or revised policy or practice against the needs mentioned in section 149(1) of the Act.

     

  2. In making the assessment a listed authority must consider relevant evidence relating to persons who share a relevant protected characteristic (including any received from those persons).

     

  3. A listed authority must, in developing an authority or practice, take account of the results of any assessment made by it under paragraph (1) in respect of that policy or practice.

     

  4. A listed authority must publish, within a reasonable period, the results of any assessment made by it under paragraph (1) in respect of a policy or practice that it decides to apply.

     

  5. A listed authority must make such arrangements as it considers appropriate to review, and, where necessary, revise any policy or practice that it applies in the exercise of its functions to ensure that, in exercising those functions, it complies with the equality duty.

     

  6. For the purposes of this regulation any consideration by a listed authority as to whether or not it is necessary to assess the impact of applying a proposed new or revised policy or practice under paragraph (1) is not to be treated as an assessment of its impact.”

 

Homeopathy
[4]        The Oxford Medical Dictionary (4th Ed, 2007) defines homeopathy as:

“a complementary therapy based on the theory that ‘like cures like’. It involves treating a condition with a tiny dose of a substance that in larger doses would normally cause or aggravate that condition. The dose is made smaller by diluting it many times in purified water; it is activated by shaking it in an exact way. Homeopathy was developed by a German doctor, Samuel Hahnemann (1755-1843) in 1796.”

 

[5]        Homeopathy is controversial.  The Wikipedia entry about it includes the following statements:

“Homeopathy is not a plausible system of treatment, as its axioms about how drugs, illness, the human body, liquids and solutions operate are contradicted by a wide range of discoveries across biology, psychology, physics and chemistry made in the two centuries since its invention. … Continued homeopathic practice, despite the evidence that it does not work, has been criticised as unethical because it discourages the use of effective treatments, with the World Health Organisation warning against using homeopathy to try to treat severe diseases such as HIV and malaria. The continued practice of homeopathy, despite a lack of evidence of efficacy, has led to it being characterized within the scientific and medical communities as nonsense, quackery and a sham.

 

Assessments by the Australian National Health and Medical Research Council and the Swiss and British government health departments have each concluded that homeopathy is ineffective, recommending against the practice receiving any further funding.”

 

There are those, including the petitioner and her supporters, who take the opposite view.  The British Homeopathic Association, a charity whose purpose is to promote patient access to homeopathy, has a campaign to save NHS Homeopathy.  On its website it declares:

“There is a growing body of evidence to show that homeopathy has a positive effect.

 

Six out of seven major systematic reviews of RCTs (randomised control trials) have concluded (with important caveats) that homeopathy has an effect greater than placebo.”

 

It is not, of course, for me to adjudicate in these proceedings between these two competing views on the merits or otherwise of homeopathy.

 

The decision-making process
[6]        In January 2012 the Board, through Midlothian Community Health Partnership (“the CHP”) undertook a review of the homeopathy service which it was providing in the context of how best to use the resources available to it  in providing healthcare services in its area by publishing a paper entitled “A Review of Homeopathy Services in NHS Lothian”.  It described its current service activity as follows:

“Across NHS Lothian current specialist homeopathic treatment provided is part of a limited configuration of clinics which were commissioned separately by the then NHS Trusts some years ago. There are currently clinics at Dalkeith Medical Centre and Leith Community Treatment Centre which are hosted and managed by Midlothian CHP. In addition, there is a clinic at St John’s Hospital, Livingston, management responsibility for which is hosted by Lothian University Hospitals Division. Staffing is a mix of local homeopaths and staff provided by Glasgow Homeopathic Hospital”.

 

The review recorded that the percentages of males and females attending homeopathy outpatient appointments between April 2010 and March 2011 was 21% male attendance and 79% female attendance and that the distribution of age and sex patterns of those using homeopathic services was similar to that seen in those accessing general medical practice “and no specific conclusions can be drawn from this information”.

[7]        As part of the review the Board’s Head of Equality and Diversity arranged for the preparation of an Initial Equality and Diversity Rapid Impact Assessment dated 30 August 2012 (“RIA 30 August 2012”).  At section 7 there was presented in tabular form the various population groups considered and the potential differential impacts upon them.  One of the groups was:

“Disabled people (includes physical disability, learning disability, sensory impairment, long term medical conditions, mental health problems.”

 

The potential differential impact on that group was stated to be as follows:

“Common for people to seek treatment for disabilities and long term conditions such as skin problems, mental health and wellbeing. However, no definitive service data on conditions presented.”

 

The same entries appeared in the revised RIA dated 7 June 2013.

[8]        At section 11 the authors stated:

“Due to the almost complete absence of patient data from the service it was agreed that, should funding continue, the staff involved should be requested to gather monitoring data on all new and repeat patients. This will allow future reviews of the service to have much better quality data at their disposal.”

 

They suggested that this should include as a minimum the age, gender, ethnicity and religious belief of the patient.  They did not recommend that further data be gathered in the consultation exercise which was to follow.  They noted that in the main the proposal to withdraw homeopathic services would have a neutral impact on patients as the majority of patients were from more affluent areas and could afford alternative provision.  The RIA 7 June 2013, which followed upon the public consultation exercise mentioned below, concluded that there would be a negative impact on a group of people in more deprived areas should the service cease.  It stated at para 6.2:

“The revised impact assessment finds that there remains no evidence of illegal discrimination should there be changes in service provision as proposed, and repeats the earlier recommendation to develop patient monitoring.”

 

[9]        The CHP undertook a consultation process between 10 September and 10 December 2012.  It issued a questionnaire to obtain information in the form of views from consultees about whether the Board should continue to pay for homeopathy services, but not, the petitioner avers, about how the withdrawal of those services would affect the consultee, the medicines and treatments taken, the conditions and symptoms treated, the effects experienced and whether conventional treatments had ever been tried by the consultee and to what effect, information as to whether service users might be able to afford to pay privately for homeopathic treatment or how any adverse effects of withdrawal of homeopathy services for the consultee might be ameliorated.

[10]      The Board published an Initial Report on the consultation on 14 February 2013 and amended it on 15 March 2013.  It noted that there had been 3,350 electronic and 367 paper responses submitted to the questionnaire.  There were about 503 users of the service.  The officers of the Board who prepared the RIA 30 August 2012 became aware that information from a sample of patients using homeopathic services at the clinics at Dalkeith and Midlothian Community Hospital showed that 50% of the patients in the sample were in receipt of long term benefits and a quarter of the remainder had retired early from work on medical grounds.  There was no information available about the majority of those using the homeopathy service and none was sought.  The RIA 30 August 2012 was revised on 7 June 2013 to note the new information but the comments and conclusions about the potential differential impact of withdrawal of the homeopathic service expressed in the RIA 30 August 2012 were not altered in the revised RIA 7 June 2013, although it noted that evidence from two clinics would suggest more patients than had originally been suggested might have low incomes and might not be able to afford to pay for private homeopathic provision and that limited evidence would suggest that the proportion of patients on lower incomes might be higher than indicated by the very low levels of patient data available for the RIA 30 August 2012.

[11]      The petitioner avers that the authors of the revised RIA 7 June 2013 did not have any data which would allow them to consider the religious beliefs, sexual orientations, ethnicity, pregnancy or maternity or disability of those using the homeopathy service and how its withdrawal might affect them and that no attempt was made to analyse the results of the consultation exercise in terms of the PSED under section 149 of the Act.  She also avers that the contents of the RIAs 30 August 2012 and 7 June 2013 were not made available to the Board itself but were summarised by Alyson Malone in her Report on the NHS Lothian Homeopathy Service dated 13 June 2013, which was made available to the Board.  In that report she stated that the withdrawal of funding for homeopathic services would have a limited negative impact on patients and staff;  the majority of patients were from more affluent areas and it was felt that they could perhaps afford to self‑fund alternative provision;  the withdrawal of the service would have a negative impact on those who lived in more deprived areas due to reduced access to homeopathy, fewer opportunities to have a holistic discussion about health and wellbeing with healthcare staff, less opportunity for support and the potential for greater stress; and that the revised RIA 7 June 2013 concluded that there was no evidence, in the event of withdrawal of homeopathic services, of illegal discrimination against those on long term benefits and who had retired early on medical grounds attending the Dalkeith Clinic and Midlothian Community Hospital.  At its meeting on 26 June 2013 the Board had before it a document dated 11 June 2013 entitled “Summary Paper – NHS Lothian Homeopathy Service” prepared by Professor Alex McMahon, Director of Strategic Planning, and Alyson Malone, Strategic Programme Manager recommending the withdrawal of homeopathy services, which the Board accepted.

[12]      The petitioner avers that the only information relevant to the Board’s PSED available to it on 26 June 2013 was the summary of the RIAs 13 August 2012 and 7 June 2013 (without the evidence upon which the assessments were based or any explanation of their reliability) and that the Board failed to discuss or consider any issues relevant to its PSED, in particular, the impact of the withdrawal of the homeopathy service against the needs mentioned in section 149(1) of the Act to the extent required to fulfil its duty under the section.

[13]      In answer the Board, under reference to the documents referred to, aver that they fulfilled all their duties and obligations under the Act.  The Board was aware of the two RIAs, that a thorough consultation process had been conducted and the active participation of homeopathic practitioners in both the assessments and consultation process had been ensured.  In addition, it had invited Mr Cook, Chairman of the British Homeopathy Society, to address the meeting on 26 June 2013 and raise any concerns that he had before the decision was made.  The Board was also aware that an application procedure would be available to those affected by the decision under which applications could be made to the Exceptional Cases Panel if there was felt to be a need for continual treatment for any patient.  The Board also aver that, if they did fail in their PSED, they would have reached the same decision had they not so failed.

 

The petitioner
[14]      The petitioner is 73 years old and resides with her 78 year old husband, who is her carer.  She is disabled by arthritis and receives attendance allowance.  She was first referred to the homeopathic service in 2003 for anxiety, for which she takes homeopathic medicines called Agaricus and Rockrose.  She takes a homeopathic medicine called Bovista for her arthritis, having found that conventional treatments for that condition were ineffective and produced undesirable side effects.  She experiences great relief of her symptoms from these homeopathic medicines.  She was given a final appointment with the homeopathic service on 8 January 2014 and informed that she was not entitled to homeopathic treatment thereafter.  The service which she previously received consisted of the prescription of homeopathic medicines and consultation with a clinician at the Dalkeith clinic, which is near her home.  She continues to receive a prescription of homeopathic medicines but no longer has consultations with a locally based practitioner in homeopathic medicine.  She is not fit to travel to Glasgow to consult with a homeopathic practitioner there.  It was stated by her counsel at the hearing that her personal circumstances were of no moment as her challenge to the Board’s decision was in the nature of a general public law challenge, but that they provided the background to it.

 

The PSED
[15]      The PSED in its current form was introduced by section 149 of the Act, which came into force on 5 April 2011, replacing a number of earlier different statutory duties relating to race and disability.  It consists of the general duties in section 149 of the Act and the specific duties in regulation 5 of the regulations, which has no equivalent in the corresponding English regulations.  Reference was made in the course of the hearing to eight English cases dealing with the PSED and to various judicial dicta in them, which I now turn to consider in chronological order.

[16]      R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213 dealt with section 71 of the Race Relations Act 1976 which imposed on the Secretary of State the duty to have regard to the need to eliminate unlawful race discrimination in carrying out his duties.  At p 3268 E-G, para 274 Arden LJ stated:

“It is the clear purpose of section 71 to require public bodies to whom that provision applies to give advance consideration to issues of race discrimination before making any policy decision that may be affected by them. This is a salutary requirement, and this provision must be seen as an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation. It is not possible to take the view that the Secretary of State’s non-compliance with that provision was not a very important matter. In the context of the wider objectives of anti-discrimination legislation Section 71 has a significant role to play. I express the hope that those in government will note this point for the future.”

 

[17]      R(Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) was concerned with the duties owed to disabled people in respect of  post office closures proposed by the government in 2007.  Aikens LJ, giving the judgment of the Divisional Court on the duties imposed on public authorities under section 49A(1) of the Disability Discrimination Act 1995 (the DDA) stated as follows:

“79 There is no dispute that the aim of the 2005 amendments to the DDA is to make public authorities place disability equality for all at the centre of their organisation, policy making and functions, so as to further the important goal of the elimination of discrimination and harassment of disabled people and the promotion of opportunity for them in society in general. This new aim focusing on public authorities is to be achieved through two key sections in the new statutory provisions. First, the new section 21B of the DDA, which makes it unlawful for a public authority to discriminate against a disabled person in carrying out its functions. Secondly, by imposing on public authorities the duties set out in section 49A(1).

 

80 The section 49A(1) duties are mandatory, as is clear from the opening words of the section: public authorities ‘shall’, in carrying out their functions (as public authorities) ‘have due regard’ to six ‘needs’ which are identified in paragraphs (a) to (f) of section 49A(1). Each ‘need’ identifies a particular goal which, if achieved, would further the overall goal of the legislation dealing with disability discrimination.

 

81 However, it is important to appreciate, as Dyson LJ held in relation to analogous provisions in section 71(1) of the Race Relations Act 1975, that the imposition of a duty to have ‘due regard’ to the various identified ‘needs’ does not impose a duty to achieve results. It is a duty to have ‘due regard’ to the ‘need’ to achieve the identified goals. This is a vital distinction …

 

82 What is meant by ‘due regard’? Dyson LJ stated … that ‘due regard’ in the Race Relations Act provision meant the regard that is appropriate in all the particular circumstances in which the public authority concerned is carrying out its function as a public authority. The same principle applies here. There must, therefore, be a proper regard for all the goals that are set out in section 49A(1), paragraphs (a) to (f) in the context of the function that is being exercised at the time by the public authority. At the same time, the public authority must also pay due regard to any countervailing factors which, in the context of the function being exercised, it is proper and reasonable for the public authority to consider. What the relevant countervailing factors are will depend on the function being exercised and all the circumstances that impinge upon it. Clearly, economic and practical factors will often be important. Moreover, the weight to be given to the countervailing factors is a matter for the public authority concerned, rather than the court, unless the assessment by the public authority is unreasonable or irrational …

 

 

85 … the public authority concerned will, in our view, have to have due regard to the need to take steps to gather relevant information in order that it can properly take into account disabled persons’ disabilities in the context of the particular function under consideration. We emphasise once again that the duty is to have due, ie proper, regard to ‘the need to take steps’.

 

 

89 … we do not accept that either section 49A(1) in general, or section 49A(1)(d) in particular, imposes a statutory duty on public authorities requiring them to carry out a formal Disability Equality Impact Assessment when carrying out their functions. At the most it imposes a duty on a public authority to consider undertaking a DEIA, along with other means of gathering information, and to consider whether it is appropriate to have one in relation to the function or policy at issue, when it will or might have an impact on disabled persons and disability. To paraphrase the words of W B Yeats in An Irish Airman Foresees his Death, the public authority must balance all and bring all to mind before it makes its decision on what it is going to do in carrying out the particular function or policy in question.”

 

At para 90 he went on to state that an incomplete or erroneous appreciation of the duties will mean that ‘due regard’ has not been given to them.

[18]      R (Domb) v London Borough of Hammersmith and Fulham [2009] EWCA Civ 941 involved a challenge to the lawfulness of the decision taken by the Board to make charges for non-residential home care services in order to fund a reduction in council tax.  At para 75 Rix LJ stated:

“In sum, like the judge, I would conclude that the council did in substance, not just in form, have due regard to the need to eliminate discrimination and to promote equality of opportunity in relation to the relevant equality duties. The council carried out a substantial consultation, which was part of the general exercise of paying ‘due regard’. It also commissioned a careful impact assessment, the essence of which was translated into the report to cabinet. .. Essentially, decisions which had already been taken as part of the budgetary process, such as the decision to reduce the council tax, were water under the bridge. There were also substantial countervailing factors which had to be considered, such as (in the circumstances) the council’s budgetary needs, as well as the comparison of the situation with every single other council in the country. … all in all, I agree with the judge that there is no reason to find any failure of ‘due regard’ in the present case.”

 

At para 79 Sedley LJ observed:

“Members are heavily reliant on officers for advice in taking these decisions. That makes it doubly important for officers not simply to tell members what they want to hear but to be rigorous in both inquiring and reporting to them.” 

 

[19]      R (Bailey) v London Borough of Brent [2011] EWHC 2572 (Admin) involved a challenge by residents of Brent to the lawfulness of a decision taken by the council to close six of the twelve public libraries in the borough on the ground inter alia that it breached the PSED by failing to have due regard to the risk of indirect discrimination against Asian residents of the borough.  At para 102 Pill LJ stated:

“The importance of complying with s 149 is not to be understated. Nevertheless, in a case where the council was fully apprised of its duty under s 149 and had the benefit of a most careful Report and EIA, I consider that an air of unreality has descended over this particular line of attack. Councils cannot be expected to speculate on or to investigate or to explore such matters ad infinitum; nor can they be expected to apply, indeed they are to be discouraged from applying, the degree of forensic analysis for the purpose of an EIA and of consideration of their duties under s 149 which a QC might deploy in court. The outcome of cases such as this is ultimately, of course, fact-specific … All the same, in situations where hard choices have to be made it does seem to me that to accede to the approach urged … in this case would, with respect, be to make effective decision making on the part of local authorities and other public bodies unduly and unreasonably onerous.”

 

[20]      R (Hurley and Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) involved a challenge by students to the lawfulness of the decision effected by two separate sets of regulations to allow institutes of higher education to increase tuition fees up to £9,000 a year, one ground of challenge being that the decision was made in breach of the PSEDs then imposed by three separate Acts.  Elias LJ at paras 70 to 78 made clear that compliance with the PSED is an essential preliminary to public decision making;  that the PSED required a conscious directing of the mind to the obligations;  that the exercise is not satisfied merely by ticking boxes as it was a matter of substance and had to be undertaken with rigour;  that the carrying out of an equality impact assessment did not in itself demonstrate compliance with the PSED, but if one was done it should indicate with some particularity how the PSED was discharged;  that the PSED did not impose a duty to achieve a particular result, but simply to have “due regard” to certain matters; that the concept of “due regard” required the court to ensure that there had been a proper and conscientious focus on the statutory criteria, but if that was done, the court could not interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker;  and that the decision maker must be clear precisely what the equality implications were when he put them in the balance and recognise the desirability of achieving them, but ultimately it was for him to decide what weight they should be given in light of all the relevant factors.

[21]      R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 concerned a challenge to the lawfulness of the decision of the Minister for Disabled People to close the fund known as “The Independent Living Fund” on inter alia the ground that he failed to discharge the PSED under section 149 of the Act.  McCombe LJ stated at paras 25 and 26:

“25 Two lever arch files of authorities were placed before the court which included some thirteen cases in which relevant duties and the requirement placed on public authorities have been considered. Fortunately the principles were not significantly in dispute between the parties. I summarise the points identified ..

 

  1. As stated by Arden LJ in R(Elias) v Secretary of State for Defence … equality duties are an integral part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation.

     

  2. An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in in seeking to meet the statutory requirements: R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWHC 199 (QB) (Stanley Burton J (as he then was)).

     

  3. The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the mind of officials in proffering their advice: R(National Association of Health Stores) v Department of Health [2005] EWCA Civ 154 at [26-27] per Sedley LJ.

     

  4. A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a ‘rearguard action’ following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur and Shah v London Borough of Ealing [2008] EWHC 2062 (Admin) at [23-24].

     

  5. These and other points were reviewed by Aikens LJ , giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) as follows:

     

    1. The public authority decision maker must be aware of the duty to have ‘due regard’ to the relevant matters;
    2. The duty must be fulfilled before and at the time when a particular policy is being considered;
    3. The duty must be ‘exercised in substance, with rigour, and with an open mind’. It is not a question of ‘ticking boxes’; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument;
    4. The duty is non-delegable; and
    5. Is a continuing one.
    6. It is good practice for a decision maker to keep records demonstrating consideration of the duty.

       

  6. ‘[G]eneral regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria (per Davis LJ (as he then was) in R (Meany) v Harlow DC [2009] EWHC 559 (Admin) at [84], approved in this court in R (Bailey) v Brent LBC [2011] EWCA Civ 1586 at [74-75].

     

  7. Officials reporting to or advising Ministers / other public authority decision makers on matters material to the discharge of the duty must not merely tell the Minister / decision maker what he / she wants to hear but they have to be ‘rigorous in both enquiring and reporting to them’: R (Domb) v Hammersmith and Fulham LBC [2009] EWCA Civ 941 at [79] per Sedley LJ.

     

  8. Finally, and with respect, it is, I think, helpful to record passages from the judgment of my Lord, Elias LJ, in R (Hurley and Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) (Divisional Court) …”

 

[22]      The passages referred to in point (8) from the judgement of Elias LJ are as follows:

[77] Contrary to a submission advanced by Ms Mountfield, I do not accept that this means that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then, as Dyson LJ in Baker (para [34]) made clear, it is for the decision maker to decide how much weight should be given to the various factors informing the decision.

 

[78] The concept of ‘due regard’ requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but, if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in light of all the relevant factors. If Ms Mountfield’s submissions on this point were correct it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making.

 

[89] It is also alleged that the PSED in this case involves a duty of inquiry. The submission is that the combination of the principles in Secretary of State for Education v Tameside Metropolitan Borough Council [1977] AC 1014 and the duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available there will be a duty to acquire it and this will frequently mean that some further consultation with appropriate groups is required. Ms Mountfield referred to the passage from the judgment of Aikens LJ in Brown (para [85]) ...

 

[90] I respectfully agree ...”

[23]      R (Robson) v Salford City Council [2015] EWCA Civ 6 involved a challenge to the lawfulness of the decision by Salford City Council to stop its transport service for disabled adults between their homes and adult day centres and to make alternative transport arrangements for them as part of a package of cost-cutting measures on the ground inter alia that it failed to comply with its PSED.  At para 47 Richards LJ stated:

“In my judgment the council did have due regard to the matters identified in section 149 in relation to the disabled adults potentially affected by the decision … Through the carrying out of individual transport assessments and a lawful consultation exercise it had obtained sufficient information to discharge the duty of inquiry for the purposes of section 149. The information obtained was analysed in the Community Impact Assessment. It may be that the imperfections of that document went even further than was recognised by the judge, but in my view he was entitled to find on the basis of the document taken as a whole that the council had proper regard to the section 149 matters. I do not accept the submission that a greater degree of analysis was required. The judge was also right to look at the matter more widely … and to find that in its decision making process as a whole the council was evidently aware of the potential adverse impacts on disabled adult service users and was actively considering steps to meet the needs of such persons and to eliminate, reduce or mitigate those impacts.” 

 

[24]      Hotak v London Borough of Southwark [2015] UKSC 30 concerned the statutory duty of local housing authorities towards vulnerable people with a priority need for the provision of housing accommodation and also the consideration of the Equality Act 2010.  Lord Neuberger held at para [82] that the PSED had had been complied with on the ground that the reviews officer who had carried out a review of the applicant’s priority need for housing had approached the question of his vulnerability in a sufficiently full and considered way to satisfy the PSED.  The review addressed each aspect of his disability, carefully addressed the questions of how they would be dealt with if he was homeless, how they would affect him if he was homeless, whether he would be vulnerable and why, in her view, he would not.  His lordship did not place significant weight on the fact that she specifically mentioned the PSED and stated that, if the earlier part of the review letter had not complied with the duty, he doubted very much that the throw-away reference to the PSED could have saved it.

 

Submission for the petitioner
[25]      The broad proposition advanced on behalf of the petitioner was that the Board had given no consideration whatsoever to its PSED when it reached its decision of 26 June 2013 to withdraw the provision of homeopathic services.  That was the end of the case.  None of the protected characteristics, including that of the petitioner’s disability, had been taken into account.  There had been a failure on the part of the Board to acquire the information which it was necessary for it to have in order to comply with the PSED.  Miss Lumsden in her review had suggested that if the service were to continue the information should be obtained.  The necessary information related to a small, discrete group of people.  None of the exercise had been carried out at all.  It was suspected that none of the officials was aware of the way the PSED worked.  The statutory duty was not mentioned anywhere in the documents.  The PSED was now “constitutional bedrock” which placed a vision of society on the decision maker.  The petitioner was not seeking a merits review by the court.  The personal circumstances of the petitioner were neither here nor there.  The decision should be reduced.

 

Submission for the Board
[26]      It was submitted for the Board that the personal circumstances of the petitioner were relevant to the balancing act that the Board had to carry out when reaching its decision.  It had a statutory duty to provide healthcare but no individual had a right to any particular health care provision.  The Board had to take into account the limited resources available to it.  The petitioner was now being provided with full access to homeopathic services on the National Health Service.  The real force behind the petition was a charity, not the petitioner.

[27]      Before it reached its decision the Board had before it the summary paper dated 11 June 2013 and the report dated 13 June 2013 with its appendices.  Appendix 1 consisted of the review paper, appendix 2 of the initial report on the consultation and appendix 3 of the homeopathy options.  In appendix 1 there was set out the context of the review and also the age and sex distribution of homeopathy patients.  A degree of information was available although it was not perfect.  The level of information provided could always be improved, but that did not mean that the information before the Board was insufficient to allow it to have regard to its PSED.  The author of the RIA, which had been thoroughly assessed by the Board, could have stated if he thought that the information available was insufficient.  The consultation process was long and detailed and based on a wide canvassing of views.  The membership of the review group was as inclusive as possible.  A detailed analysis of the response to the consultation had been undertaken, including a breakdown of the responses.  A questionnaire had been issued, public meetings had been held and the Board had other sources of information.  The Healthcare Governance Committee (HGC), some members of which were also members of the Board, met on 4 June 2013 and considered the review paper.  The minute recorded that there had been 3,700 responses to the consultation, the majority of which opposed the continued provision of the homeopathy service by NHS Lothian, with 24% of responses for the continuation of the service.  At para 18.3.6 it was recorded that Mr Glover, Head of Equality and Diversity, stated that a decision to cease the homeopathy service could not be recommended until there was a robust case to ensure equality.  The HGC agreed to the recommendation that NHS Lothian cease to provide a homeopathy service in Lothian and cease referrals to the Glasgow Homeopathic Hospital.

[28]      So far as the minute of the Board meeting of 26 June 2013 was concerned, it should not be interpreted to the effect that the Board did not, and could not, have had regard to its PSED.  If there had been a paragraph containing specific reference to the PSED it would have been merely a box-ticking exercise.  The Board would not have made a decision without an equality impact assessment.  The HGC had all the material before it and the chairman was also a member of the Board.  It was clear from a fair reading of the material produced that the Board had had due regard to its PSED.  The Board had to balance its duty with other factors.  None of the issues identified was deemed to be sufficient, so nothing further required to be done by the Board.  Measures were put in place to mitigate the effect of the decision.  Any patient affected would be able to access NHS care through his or her GP.  There was no significant difference between those seeking homeopathy and the general population seeking healthcare.  It was a reasonable inference that the Board was satisfied that there was no discrimination on any ground.  The two RIAs were not before the Board at its meeting but the Board was entitled to have regard to the fact that the members of the HGC had discussed the issues and were content to make the recommendation.  The whole decision‑making process had to be considered.  The very fact that an RIA was done and presented to the Board could mean only that the Board had complied with its PSED, and, in particular, with its statutory duty under regulation 5.

[29]      In any event, even if the Board had failed to comply with its PSED, reduction should be refused on the grounds that there is no real possibility that the decision would have been different had it complied (Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 per Lord Reed at para 31 and also that it would be disproportionate to reduce the decision (R (English Speaking Board (International) Ltd) v Secretary of State for the Home Department [2011] EWHC 1788 (Admin) at paras 59 to 64).

 

Decision
[30]      The petitioner does not in these proceedings challenge the lawfulness of the decision of the Board on the ground that it was a decision which no reasonable Board acting reasonably could have reached.  Her challenge is based purely on an alleged procedural irregularity, namely, the failure of the Board to comply with its PSED under section 149 of the Act.  In considering whether the board did comply with its PSED I take into account, so far as relevant, all the dicta from the English cases which I have set out above.  At the outset I remind myself that the PSED did not impose on the Board the duty to achieve any particular result when reaching its decision, but only to have regard to certain needs.  I also must consider the whole decision-making process, not only what happened at the meeting of the Board on 26 June 2013, but also all that preceded it.  It is essential to recognise that the governing body of a public authority functions to a large extent with the assistance of officials and committees who make recommendations to it.  There is a major difference between, on the one hand, officials or committees themselves taking a decision and, on the other hand, recommending to the governing body what course of action should be taken.  In this instance it was the Board itself which took the decision and there is therefore no question of its having delegated its duty under section 149 of the Act.

[31]      It is clear to me from an examination of the relevant documents that the Board was from the outset consciously focusing on its PSED.  It commissioned the RIA through its Head of Equality and Diversity.   The RIA 7 June 2013 found, after the consultation exercise had been completed, that there remained no evidence of illegal discrimination should there be changes in service provision.  It identified only a negative impact on people from more deprived areas.  While it might well have been possible for the RIA to have sought further and better particulars of those making use of the homeopathy service, the Board could not, as Pill LJ said at para 102 in R(Bailey) v London Borough of Brent, “be expected to speculate on or to investigate or to explore such matters ad infinitum”.  The question is not whether more information could have been obtained, but whether more information had to be obtained.  The public consultation exercise undertaken by the Board also, to my mind, indicates that it wished to canvas as many views as possible and, in particular, to hear the views of those who might be affected by the withdrawal of the homeopathy service.  The information gathered from the RIAs and the outcome of the consultation exercise was presented to the Board at its meeting by way of the RIA summary report.  I see nothing wrong with that.  I do not accept the submission for the petitioner that none of the protected characteristics in section 149 of the Act were taken into account by the Board.  These very characteristics were mentioned in the two RIAs and in the summary report.  It was not necessary for the Board to have carried out a full census or survey of all patients using the homeopathic service.  I have reached the conclusion that the Board had a proper and conscientious focus on the statutory criteria and that it had obtained sufficient information to discharge its duty of inquiry under section 149 of the Act.

[32]      In any event, even if I had concluded that the Board had failed to comply with its PSED, I would have refused to reduce the decision under review.  It is plain that the Board, as it was entitled to do, accepted the view that there was no scientific evidence for the efficacy of homeopathy and that funding for it was a waste of the limited funds at its disposal.  In these circumstances the countervailing factor in this case was so powerful, indeed overwhelming, that no decision other than the one taken by the Board was conceivable.  A different decision, namely, to continue spending money on a service whose efficacy was not established, would have been unreasonable.  It is notable that the fact that the percentages of those attending homeopathy outpatient appointments between April 2010 and March 2011 was 21% male and 79% female did not prevent the Board reaching its decision to withdraw the homeopathy service on the ground that to do so would result in sex discrimination against females.

[33]      Reduction is an equitable remedy (Cooney v Dumfries and Galloway Council, unreported, 29 March 2001 per Lord Prosser at para [4] and Clyde and Edwards on Judicial Review at p 628, para 23.32):  it is in the discretion of the court to refuse to grant it where it would serve no useful purpose.  At para 31 in Tesco Stores Ltd, a planning case, Lord Reed said:

“Finally, I would observe that an error by the respondents in interpreting their policies would be material only if there was a real possibility that their determination might otherwise have been different. In the particular circumstances of the present case, I am not persuaded that there was any such possibility. The considerations in favour of the proposed development were very powerful. They were also specific to the particular development proposed: on the information before the respondents there was no prospect of any other development of the application site, or of any development elsewhere which could deliver equivalent planning and economic benefits. Against that background, the argument that a different decision might have been taken if the respondents had been advised that the first criterion in the policies in question did not arise, rather than that criterion had been met, appears to me to be implausible.”

 

In my opinion that reasoning applies mutatis mutandis to the facts of this case.  I am satisfied that reduction of the Board’s decision of 26 June 2013 would result only in a waste of time and public funds as it would inevitably result in exactly the same decision being taken by the Board.

[34]      For the reasons given above the petition is refused.