So, another public body – Birmingham City Council – has breached equality laws when cutting budgets. It's no surprise that the problem arose in adult social care, where demand is very high, provision very expensive, and equality issues more than usually important.
Everyone knows local authorities have very, very difficult decisions to make, and that it is impossible to meet as many needs as they would like. But it certainly doesn't help any authority if it can't defend its decisions in law. Is this out-of-touch judges meddling in things they don't understand, or does the case reveal a real problem?
I fear it reveals a problem. The case reports a telling remark from counsel for Birmingham, that the decision was a ‘matter of high policy’, being challenged on matters of ‘petty bureaucracy, at quite a low level’. It would not be fair to read too much into this exact wording, but the suggestion that decisions of ‘high policy’ do not need to consider equality issues that may become apparent at the individual level, is flat-out wrong.
General awareness and overarching statements are not enough. There has to be hard data and rigorous analysis, even (perhaps, especially), when making ‘high policy’.
A further point was that the council had not considered whether it should have raided its reserves or cut other budgets. This is, potentially, a very alarming criticism, but it is important to stress that the requirement was to have asked the question, not, necessarily, to have adjusted the budget. It is still unlikely that any judge will directly interfere in the financial decisions of a local authority.
So, how to avoid being the next case? The most important message is never, never to consider (or describe) equality impacts as ‘petty bureaucracy’. They rank equally in importance with any other consideration, including financial. (Maybe even more important, in the sense that the courts will directly interfere on the grounds of breach of equality duties, but would be unlikely to become involved in financial decisions.)
No authority would take a budget decision without an expert team who build up models from very detailed, low-level financial information. The same must be true of equality duties. The alternative is clear: litigation expense, delay, and loss of reputation.
Stephen Hocking is public law department partner at Beachcroft
