R (on the application of Kaur and Shah) v London Borough of Ealing [2008] EWHC 2062 (Admin)

In brief

Southall Black Sisters had provided specialist domestic-violence services to Asian and Afro-Caribbean women since 1979, funded in part by the London Borough of Ealing since the mid-1980s [2]. In 2007 Ealing moved to commission borough-wide domestic-violence services by open competition rather than fund specialist organisations directly [3], and on 26 February 2008 decided to fund only a single provider (or consortium) serving all residents irrespective of ethnicity [6]. Kaur and Shah, both recipients of Southall Black Sisters' services, challenged that decision as reached in breach of the race equality duty at section 71 of the Race Relations Act 1976 [7], with the Equality and Human Rights Commission intervening [9]. Ealing conceded on the second day of the hearing that the decision could not be maintained [10], but Lord Justice Moses gave judgment anyway to state the governing principles [11]. He held that Ealing breached section 71 by fixing its funding criteria before carrying out a full racial equality impact assessment: 'This failure establishes a clear breach of Section 71 of the 1976 Act' [43]. Such an assessment must be integral to forming the policy, not a justification produced afterwards [24], and must be undertaken 'as a matter of substance and with rigor', not by 'ticking boxes' [25]. Ealing's statistical reasoning, which found no correlation between domestic violence and ethnicity by comparing raw reported-victim proportions without reference to the underlying population, was 'perverse' [46]. Section 35 of the 1976 Act (special provision for a racial group's special needs) was not a derogation requiring narrow justification but part of the equality scheme itself [52], and specialist, ethnicity-targeted services were not in tension with promoting cohesion [55]-[56]. By consent, Ealing's decision was quashed, with costs against Ealing [59]-[60].

Key provisions

• §20, §24, §25 — Equality impact assessment must precede and inform the policy, not justify it afterwards, and must be rigorous rather than formal : [20] the impact of a proposed policy on race equality must be assessed, and adverse impact addressed, before adoption; [24] a racial equality impact assessment 'should be an integral part of the formation of a proposed policy, not justification for its adoption'; [25] 'the process of assessment is not satisfied by ticking boxes. The impact assessment must be undertaken as a matter of substance and with rigor.'
• §36-§37 — A policy adopted contingent on a future assessment is unlawful : [36] 'The authority was not entitled to formulate policy before any equality impact assessment. Thus it is unlawful to adopt a policy contingent on an assessment.'; [37] described, adopting counsel's phrase, as smacking 'of policy-based evidence rather than evidence-based policy'.
• §45-§47 — Statistics must be read against the relevant population, not as raw proportions : [45] Ealing's finding of no correlation between domestic violence and ethnicity compared the raw proportion of reported victims by ethnicity without reference to each group's share of the local population (58% of Ealing's female population was white European but only 41% of reported domestic violence; 8.7% of the population was Indian/Pakistani/other Asian but 28% of reported domestic violence); [46] 'Any such conclusion was, in my judgment, perverse'; [47] under-reporting in those communities would understate the disparity further.
• §51-§56 — Specialist provision for a group's distinct needs is not a derogation from equality but a means of achieving it : [52] 'Section 35 is not an exception to the 1976 Act. It does not derogate from it in any way... [I]t is a manifestation of the important principle of anti-discrimination and equality measures that not only must like cases be treated alike but that unlike cases... must be treated differently.'; [55]-[56] 'There is no dichotomy between the promotion of equality and cohesion and the provision of specialist services to an ethnic minority.'

When relevant

A race-discrimination and equality-duty-process case, not an authority on gender reassignment or trans inclusion — the judgment does not mention either. The decision-maker is a local authority exercising public functions in setting criteria for funding domestic violence services [13]-[14]; the affected population includes service users, particularly black and minority ethnic women, and the claimants were recipients of the specialist service [27], [34]-[35]. Relevant to trans inclusion work only by analogy to its account of how courts scrutinise a public body's equality-duty process: (i) a public body proposing to replace or dilute trans-specific specialist provision with a 'universal' service should be expected to assess the likely impact on that specific group before deciding, not after [20], [24]; (ii) an equality impact assessment produced to justify a decision already made, or promised only as future monitoring, is unlikely to satisfy a public-law process duty [36]-[37]; (iii) specialist, identity-targeted services are not inherently in tension with equality or cohesion aims [52], [55]-[56]. Our analysis, not the court's: the judgment itself says nothing about which population these principles govern beyond a local authority exercising its race-equality duty under the 1976 Act. Coverage gap named: the toolkit does not hold the Race Relations Act 1976, the Equality Act 2010 Public Sector Equality Duty (s.149), or the other authorities this judgment relies on (R (Munjaz) v Mersey Care NHS Trust, R (Elias) v Secretary of State for Defence, R (BAPIO) v Secretary of State for the Home Department, R (Baker) v Secretary of State and London Borough of Bromley) as catalogue records; verify on cite. This record is classified Practice-Only under CANON §45 (no TNB nexus in the judgment itself; relevance by analogy only to the Public Sector Equality Duty) — see notes.md. Decision support, not legal advice.