Domb & Ors, R (on the application of) v London Borough of Hammersmith and Fulham & Ors

Factual and Procedural Background

On 16 June 2008, the Council decided to introduce charges for non-residential home care services under its statutory power pursuant to section 17 of the Health and Social Services and Social Security Adjudications Act 1983. The claimants—individuals with disabilities requiring home care assistance—challenged this decision by way of judicial review, arguing that the Council failed to have due regard to its equality duties under the Disability Discrimination Act 1995, the Sex Discrimination Act 1975, and the Race Relations Act 1976.

The initial judge granted permission for judicial review but refused to quash the Council’s decision, concluding that the Council had in substance complied with its equality duties. Permission to appeal was initially refused but subsequently granted in respect of several grounds, excluding the issue of legitimate expectation. The claimants became appellants, and the Council the respondent.

The Council had previously charged for home care services until 2006, when the policy was discontinued. Following financial pressures and budget considerations, the Council considered either increasing eligibility thresholds or reintroducing charges. After consultation and an impact assessment, the Council resolved to consult on reintroducing charges. The consultation was extensive, involving various disability and community groups, and was integrated into a Predictive Equalities Impact Assessment (PEIA) process. The Council’s decision-making process was informed by statutory duties and relevant guidance, including the Fairer Charging Guidance issued by the Department of Health.

Legal Issues Presented

1. Whether the Council failed to have due regard to its disability equality duties under section 49A of the Disability Discrimination Act 1995 in making the decision to introduce charges for home care services.
2. Whether the Council failed to have due regard to its gender and race equality duties under the Sex Discrimination Act 1975 and the Race Relations Act 1976 respectively.
3. Whether the Council’s consideration of options was unlawfully constrained by prior budget decisions, thereby limiting the scope of its positive duty to promote equality.
4. Whether the impact assessment and the report to the Cabinet adequately reflected the equality considerations required by law.

Arguments of the Parties

Appellants' Arguments

• The Council failed to comply with its positive duty under section 49A(1)(c) of the Disability Discrimination Act 1995 by limiting its consideration to two options—charging or raising eligibility thresholds—without considering broader budgetary alternatives.
• The PEIA contained findings of specific adverse impacts on ethnic minority groups and women that were not carried forward into the Cabinet report, indicating a failure to have due regard for race and gender equality duties.
• The PEIA’s characterization of charging as having a "positive impact" was perverse and misleading, as charging would negatively affect disabled service users.
• The Council’s consultation and impact assessment processes were inadequate to satisfy the statutory equality duties, particularly regarding the positive duty to promote disability equality.
• The Council failed to consider the adverse impact on carers, who were predominantly women, as evidenced in the PEIA but not in the Cabinet report.

Respondent's Arguments

• The Council had conducted a comprehensive consultation and a robust PEIA, which was one of the most thorough seen by the Principal Equalities Officer.
• The Council’s report to Cabinet sufficiently reflected the equality considerations, including the alternatives and mitigating actions.
• The PEIA did not identify any disproportionate adverse impact on ethnic minorities or women; any differential impact was explained by demographic and income data and was not considered discriminatory.
• Prior budget decisions, including the council tax reduction, were fixed and not subject to challenge; thus, the Council’s consideration of charging versus raising eligibility thresholds was reasonable and realistic.
• The duty to have due regard is one of substance, not form, and the Council complied with it in a meaningful way.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the Council’s decision-making process, focusing on the consultation, the Predictive Equalities Impact Assessment (PEIA), and the report to Cabinet. It acknowledged that the Council had statutory powers to charge for home care services and was under duties to have due regard to eliminate discrimination and promote equality under multiple statutes.

The court recognized the appellants’ main contention that the Council’s consideration was improperly constrained by prior budget decisions, limiting its positive duty to consider all reasonable alternatives to achieve budget savings without disproportionately impacting protected groups. However, the court found that the prior budget decisions, including the council tax reduction, were fixed and not challenged, and thus the Council’s realistic choice was between charging and raising eligibility thresholds.

The court accepted that the consultation was extensive and that the PEIA was robust and comprehensive, involving relevant stakeholder groups and reflecting the Council’s efforts to assess impacts. The court noted that while some criticisms were made about the PEIA and Cabinet report not fully aligning, the differences did not amount to a failure to have due regard.

Regarding the alleged racial and gender adverse impacts, the court found no evidence of disproportionate or indirect discrimination. The statistical data and expert evidence indicated that the impact on ethnic minorities and women was consistent with demographic and income profiles and that mitigation measures were planned.

The court emphasized that the duty to have due regard is substantive, not a formality, and that the Council had engaged with its duties in substance. It rejected the argument that the PEIA’s description of charging as having a “positive impact” was perverse, accepting that maintaining eligibility thresholds was a relevant comparator.

Finally, the court acknowledged the appellants’ principled objection to charging but held that the Council’s decision was lawful and that no material failure of due regard had been demonstrated.

Holding and Implications

The court DISMISSED THE APPEAL.

The decision confirms that a local authority’s duty to have due regard to equality considerations requires substantive engagement with the issues but does not necessitate considering every theoretical budgetary alternative beyond those reasonably available. The ruling underscores that prior budget decisions, if unchallenged, set a realistic framework within which equality duties are to be discharged. The court found the Council’s consultation, impact assessment, and reporting sufficient to meet its statutory equality duties. No new precedent was established, and the direct effect is that the Council’s decision to introduce charges for home care services stands.