Barnet unlikely to appeal sheltered housing judgement - a stay of execution?

Reading a paper for the Cabinet of 3 February 2010, it looks like Barnet council will not appeal the legal judgement against their decision to axe the sheltered housing wardens. The reasons given are sketchy, but probably include political calculations - they would want to avoid having a wardens protest in the borough around the time of the council elections.

Rather than appealing, it seems likely that they will improve their consultation procedure, to take fuller account of the impact of their proposals on disabled people, and have another go at a later date. How much later? Remember, also, that all they have to do is prove that they consulted: they are quite free to ignore (as they did the first time) the outcome of any consultation.

So we can't quite call this a victory, and, moreover, it doesn't stop other councils going ahead and cutting their wardens (this campaign hasn't just been about Barnet). Nevertheless, a welcome stay of execution.

I'm pasting below quite a lot of Cabinet report. In red are the salient points (as far as my layperson's eye can tell):

USE OF RESOURCES IMPLICATIONS...

The 2010/11 budget as set out in the budget headlines assumes that sheltered housing warden provision remodelling would be completed from the second quarter of 2010/11 realising a £300,000 efficiency saving. As the remodelling cannot now proceed, the £300,000 efficiency cannot be achieved. It is proposed that this is met for 2010/11 from central contingencies.

...As a result of the judgment, the ongoing deficit in the Council’s proposed budget for 2011/12 onwards, due to the absence of a full year efficiency saving of £400,000 arising from changes to warden provision in sheltered housing will need to be considered as part of the 2011/12 budget process [does this mean they are giving up on the plan altogether?]

LEGAL ISSUES

In brief the judgment of the High Court was that, in taking the decision on 8 June 2009, Barnet did not demonstrate that it had ‘due regard’ to its duties under s49A (1) of the Disability Discrimination Act 1995 and the conclusion drawn in its equalities impact assessment, whilst properly considering an ‘adverse impact’, failed to consider a ‘different impact’ and further was considered to be “Wednesbury” unreasonable. [a new word to look up]

...Portsmouth City Council (PCC) were subject to a similar judicial review challenge on the changes to their sheltered housing provision; their judicial review was joined with the Council’s. Their decision was also quashed. PCC obtained permission to appeal on 18 January 2010. In order to protect its position, Officers lodged an application on behalf of the Council for permission to appeal on 19 January 2010, which was the last day for making an application, so that more detailed consideration could be given to the merits of an appeal.

...Officers have considered whether there are grounds for appeal and are of the view that it would not be appropriate to go to appeal based on the facts of this case which focus on whether in taking the decision on the 8 June 2009, Cabinet could demonstrate that they had had sufficient due regard to the duties under the terms of the Disability Discrimination Act 1995.

...With the judgment quashing the decision of Cabinet made on 8 June 2009, implementation of the changes to the sheltered housing warden arrangements cannot proceed unless Cabinet takes a new decision to remodel warden provision to sheltered housing. Any future decision must clearly demonstrate (in a manner that would satisfy the Court) that ‘due regard’ has been had to the entirety of Section 49A(1) of the Disability Discrimination Act 1995...

...The judgment raises a number of issues for attention by Cabinet as it seeks to implement fundamental service redesign through the Future Shape programme and to reshape its relationship with citizens. A review of the judgment has been conducted by Legal Services and the Council’s Strategic Equalities Adviser...

The judgment expressly states that “Councillors should be aware of the special duties the Council owes to the disabled before they take a decision”. ...The judgment states that the requirement of decision-makers goes beyond awareness and requires a ‘rigorous and open minded approach’ and there needs to be evidence of this approach....

...The Court ...considered that the Council had involved disabled people in the consultation process in this matter and had amended the proposal to reflect the feedback received. However the analysis of the responses to the consultation did not differentiate between those of disabled tenants who would be affected by the proposals and other respondents.