Clarifying PSED Compliance by Actual Decision-Makers in Local Authority Charging Policies

Introduction

This landmark decision in YVR, R (On the Application Of) v Birmingham City Council ([2025] EWCA Civ 393) addresses how the Public Sector Equality Duty (PSED) under section 149 of the Equality Act 2010 must be discharged by the person who actually takes a decision, even where constitutional arrangements allow delegation to officers. The appellant is a severely disabled young man dependent on state benefits whose local authority charges him the maximum permitted under the Care Act 2014 for meeting his assessed social care needs. He challenged Birmingham City Council’s decision to maintain its charging policy unchanged after the High Court’s decision in R (SH) v Norfolk County Council [2020] EWHC 3436 (Admin), which had held that a policy of maximum charging for those unable to work unlawfully discriminated against the severely disabled.

The appeal before the Court of Appeal raised three broad issues:

Whether the Council’s decision-maker for PSED purposes was the full Cabinet (which alone could have reversed the policy) or the officers who decided not to change it;
Whether those officers, as the actual decision-makers, properly gathered and considered evidence of the policy’s impact on the severely disabled;
Whether, even if a PSED breach occurred, it was highly likely that the decision-making outcome would have been the same.

Summary of the Judgment

The Court of Appeal (Males LJ, Whipple LJ and King LJ) unanimously dismissed the appeal. It held that:

The PSED applied in full to the January 2023 decision to re-publish the charging policy without substantive change;
The duty is non-delegable but attaches to whoever in fact takes the decision under the authority’s constitution—in this case two senior officers, not the Cabinet;
Those officers had conducted an extensive “post-Norfolk” review focusing directly on equality considerations and there was no requirement to gather statistical data on every conceivable impact;
Even if the Cabinet had been the decision-maker, it was “highly likely” (s. 31(2A) Senior Courts Act 1981) that the same decision would have been made in light of the Council’s severe financial crisis;
The appeal on all grounds therefore failed and permission to appeal was refused.

Analysis

Precedents Cited

R (SH) v Norfolk County Council [2020] EWHC 3436 (Admin): Held that a change in charging policy to remove a discretionary benefit disregard unlawfully discriminated against those unable to work by taking a higher proportion of their income in charges.
R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26: Established the “manifestly without reasonable foundation” test for justifying differential treatment under Article 14 ECHR.
R (Sheakh) v Lambeth LBC [2022] EWCA Civ 457: Confirmed that PSED compliance focuses on obvious equality impacts rather than exhaustive data gathering.
R (Hunt) v North Somerset Council [2013] EWCA Civ 1320: Illustrates that non-delegable duties under the Equality Act must be personally discharged by the decision-maker.

Legal Reasoning

The crux of the court’s analysis lay in correctly identifying “the person who exercises the function” under section 149 and ensuring that person had “due regard” to the need to eliminate discrimination and advance equality of opportunity. The court rejected the argument that the Cabinet was the relevant decision-maker for PSED purposes, since:

Under Birmingham City Council’s constitution, officers (Professor Betts and Mr Williams) had express delegated authority to decide not to amend the existing policy;
Section 149 imposes the duty on the public authority and, by natural construction, on the person who actually makes the decision in accordance with the authority’s scheme of delegation;
Non-delegable means that the identified decision-maker cannot pass the duty to someone else—it does not import a hypothetical rerouting of every decision to a higher body.

Having identified the officers as the decision-makers, the court found that their “post-Norfolk” review:

Was expressly focused on the equality/discrimination issues;
Considered legal, policy and financial dimensions of Norfolk;
Included transparent assessment of alternative options (e.g. raising the Minimum Income Guarantee, further PIP disregards, or not charging at all) but concluded that the Council’s unprecedented financial crisis made substantive change impossible;

Thus, the PSED was properly discharged. Finally, under section 31(2A) of the Senior Courts Act 1981, even a hypothetical PSED breach would not have altered the outcome given the Council’s dire budget gap.

Impact

This decision clarifies that in local authority decision-making:

PSED compliance attaches to whoever, under the authority’s constitution, makes the challenged decision;
Officers can discharge PSED personally when they have express delegated power, without referral to the full Cabinet or council body;
Evidence gathering for PSED purposes need only address the obvious equality impacts—it is unnecessary to undermine administrative efficiency by demanding detailed statistical surveys of all affected individuals;
Section 31(2A) provides a robust threshold to refuse relief where it is “highly likely” that an unlawful procedural defect would not have changed the outcome.

Future PSED challenges to delegated decisions will be guided by this ruling, and local authorities may take reassurance that thorough, focused equality impact reviews by authorised officers can satisfy the duty.

Complex Concepts Simplified

Public Sector Equality Duty (PSED): A duty on public authorities to have “due regard” to eliminating discrimination, advancing equality, and fostering good relations for protected groups (including disability) whenever they exercise any of their functions.
Minimum Income Guarantee (MIG): A protected income floor below which a local authority cannot charge for care services; enhanced for disabled people.
Disability-Related Expenditure (DRE) Disregard: Under the charging regulations, certain costs (e.g. disability aids, specialist clothing, carer costs) must be deducted from income when setting care charges.
Personal Independence Payment (PIP) & LCWRA: Non-means-tested and means-tested benefits respectively that compensate disabled individuals for extra costs; some or all must be disregarded when calculating care charges.
Section 31(2A) Senior Courts Act 1981: Provides that judicial review relief must be refused if it is “highly likely” that the outcome would have been the same, even if the alleged wrongdoing had not occurred.

Conclusion

YVR v Birmingham City Council ([2025] EWCA Civ 393) is a pivotal decision on the scope and practical application of the PSED in delegated decision-making contexts. It confirms that:

The duty to have due regard to equality considerations lies with the person who actually takes the decision under the authority’s constitution;
Non-delegable duties are satisfied by those authorised officers performing a focused equality impact review;
Administrative efficiency and financial imperatives can legitimately inform the balance of options, subject to rigorous consideration of equality impacts;
Where procedural irregularities are unlikely to have changed the outcome, relief will be refused under section 31(2A).

This decision provides clarity for local authorities on how to structure their decision-making and equality impact processes, ensuring that disabled service-users’ rights are protected without imposing unworkable procedural burdens.