Wednesday 28 December 2011

Challenging cuts part trois

We moved house on 17th December – what a damn fool time to move!!  Not that you really have any control over that but suffice it to say we had a somewhat chaotic Christmas.  Hope you all had festive frolicks and are enjoying the yuletide break.

Ok so we’ve looked at legal duties and best interests (part 1); consultation and human rights (part 2); now we turn our attention in part 3 to the disability equality duty and a conclusion to the feature.

Disability equality duty

The disability equality duty is a duty on public bodies to have ‘due regard’ to a number of specified needs, including the need to promote equality of opportunity for disabled children. The duty applies to all decisions by public bodies, including those in relation to individual cases; see Pieretti v Enfield [2010] EWCA Civ 1104. So when (for example) a local authority is deciding what level of service it should provide to an individual disabled child it must consider the need to promote that child’s equality of opportunity compared with other children.

However, the disability equality duty also applies when high-level decisions are taken about the nature and shape of services. In discussions about the future of services to be provided to disabled people, public bodies need to be able to show that they have had the disability equality duty in mind at all relevant times. If they cannot, it is likely that, if challenged, the High Court will quash any decision taken and require it to be taken again with due regard to the duty.

It is important to understand that the disability equality duty does not require the public body to achieve equality of opportunity for disabled people – just to pay due regard to this need when reaching its decisions. However, it may be extremely difficult for a public body which is proposing a substantial cut to services which are valued by disabled children and/or disabled adults to show how it has had ‘due regard’ to the duty.

An important issue is when precisely in a decision-making process must a public body have regard to the disability equality duty. The Southall Black Sisters case (R (Kaur and another) v Ealing LBC [2008] EWHC 2062 (Admin)) shows that equality duties must be considered when proposals are drawn up. It is therefore unlikely to be good enough for a public body to commit to doing a disability equality impact assessment after a consultation – even if before the actual decision is taken.

The disability equality duty can be enforced on an application for judicial review by any disabled person or their family if they are potentially affected by the decision. The remedy will be to quash any decision taken without due regard to the duty and an order requiring it to be retaken lawfully.


The general duties set out in this article all have a role to play in challenges to cuts to services which benefit disabled children and/or disabled adults. Underpinning all of them is a requirement under domestic law and international law that disabled children and their families should be supported to live ‘ordinary lives’. Respect for the human dignity of disabled children and disabled adults is nothing less than what the law requires. Disabled people, families, local groups and their lawyers and advisers have the legal tools to ensure that, even in a time of intense pressure on public finances, the legal rights of disabled people and their families are respected.

Don't forget - if you need to challenge a social care decision through the courts in England and Wales, it is possible to bring the challenge in the name of the child or adult with autism.  An adult who is on benefits and children who are of course minors are likely to be eligible for legal aid. 
Unfortunately, the same does not hold for challenges to education :(  I guess the system would be inundated with requests for legal aid if it did.  If you need to challenge an education decision, these guys are a good starting point.

Steve Broach practices at Doughty Street Chambers and also writes for the publication Autism Eye.  He can be contacted at Please put NNNJ in the subject line for any enquiries to him.

Best wishes to everyone for the New Year.

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