Introduction

The case of Petition of AB for Judicial Review ([2022] CSOH 68) addresses the legality of the Scottish Borders Council's decision to decommission the Teviot Day Service in Hawick. CD, a service user with Alzheimer's disease, was directly impacted by this closure. AB, CD's son and guardian, challenged the decision on grounds that the council failed to conduct a proper Equality Impact Assessment (EIA) and did not adequately consult the service users, thereby violating the public sector equality duty under the Equality Act 2010. The case delves into the obligations of public authorities in policy-making, especially concerning vulnerable populations.

Summary of the Judgment

Lady Carmichael, delivering the judgment for the Outer House of the Court of Session, concluded that the Scottish Borders Council's decision to close the Teviot Day Service was unlawful. The primary reasons cited were the council's failure to perform a compliant EIA and inadequate consultation with the service users. The EIA presented was found to be superficial and not specific to the Teviot Day Service, lacking substantive evidence and user input. Additionally, the council's attempt to claim that consultation had occurred was rejected due to the meeting's lack of clear communication about the closure proposal and the absence of meaningful engagement with the users' needs. As a remedy, Lady Carmichael reduced the council's decision concerning the Teviot Day Service and granted a declarator of unlawfulness.

Analysis

Precedents Cited

The judgment extensively referenced key legal precedents to frame the decision's context:

• R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345: This case elucidates the requirements of the public sector equality duty, emphasizing that authorities must have due regard to eliminate discrimination and advance equality.
• McHattie v South Ayrshire Council 2020 SLT 399: Lord Boyd of Duncansby's endorsement in this case was pivotal in underscoring the necessity for rigidity and substance in fulfilling equality duties.
• R (Moseley) v Haringey LBC [2014] 1 WLR 3947: This precedent was critical in defining the contours of legitimate expectations regarding consultation processes.
• R (Osborn) v Parole Board [2014] AC 1115: Cited to highlight the importance of procedural fairness in consultation, ensuring that decisions are informed and just.

Legal Reasoning

The court's legal reasoning centered on two main pillars: the Public Sector Equality Duty (PSED) under the Equality Act 2010 and the principles of procedural fairness in consultations.

• Public Sector Equality Duty: The council was mandated to eliminate discrimination and advance equality for individuals sharing protected characteristics, notably age and disability in this case. The EIA provided by the council was deemed inadequate as it lacked specificity, comprehensive evidence, and did not genuinely engage with the needs of the service users. The superficial nature of the EIA failed to demonstrate that the council had considered or mitigated the disadvantages faced by users like CD.
• Consultation Process: Effective consultation requires clear communication of proposals, adequate time for feedback, and genuine consideration of stakeholders' inputs. The council's meeting on 14 March 2019 was criticized for its lack of clear intent regarding the service's closure and inadequate engagement with the users' concerns. The judgment emphasized that meaningful consultation was absent, thereby violating procedural fairness.

Impact

This judgment sets a significant precedent for public authorities, reinforcing the necessity of thorough and genuine compliance with equality duties and consultation requirements. Future cases involving service closures or policy changes affecting vulnerable populations will likely reference this decision to ensure that authorities conduct in-depth EIAs and uphold procedural fairness. Additionally, it underscores the judiciary's role in scrutinizing the substantive and procedural aspects of public decision-making, thereby promoting accountability and protecting individuals' rights.

Complex Concepts Simplified

Public Sector Equality Duty (PSED)

The PSED is a legal requirement for public authorities to actively consider how their decisions and policies affect individuals with protected characteristics, such as age and disability. It mandates the elimination of discrimination and the promotion of equality.

Equality Impact Assessment (EIA)

An EIA is a systematic process used by public authorities to assess the potential effects of a proposed policy or decision on different groups of people, particularly those with protected characteristics. A comprehensive EIA identifies possible negative impacts and strategies to mitigate them.

Legitimate Expectation

This legal principle holds that individuals may have a justified belief that a public body will follow certain procedures or policies based on past practices or explicit promises. If such expectations are not met, it can constitute a breach of procedural fairness.

Procedural Fairness in Consultation

Procedural fairness ensures that decision-making processes are transparent, inclusive, and considerate of stakeholders' inputs. It involves clear communication of proposals, adequate time for feedback, and earnest consideration of the feedback received.

Conclusion

The judgment in Petition of AB for Judicial Review ([2022] CSOH 68) serves as a crucial reminder of the obligations public authorities hold under the Equality Act 2010. It underscores the importance of conducting thorough Equality Impact Assessments and engaging in meaningful consultations, especially when decisions significantly impact vulnerable populations. By declaring the council's decision unlawful, the court has reinforced the principles of equality, fairness, and accountability in public decision-making. This case will undoubtedly influence future administrative practices, ensuring that the rights and needs of individuals are diligently considered and upheld.