• Embed Doc
  • Copy Link
  • Readcast
  • Collections
  • CommentGo Back
Download
 
Empowering
 
 
the voluntary sector
Issue 7, November 2008
 
1
Welcome to the seventh edition of the newsletter.As the profile of the Empowering the Voluntary Sector Project andPublic Law Project has increased, so has the number of successful judicial review cases taken against public bodies involvingvoluntary sector organisations. In our first two articles, LouiseWhitfield outlines recent judicial reviews involving voluntary sectororganisations in the areas of race and disability equality duties.Terry Perkins and Louise Whitfield then give us an overview of theplans the project has to deliver masterclasses in public law in early2009, including details on how to book for these events.Finally, we have our usual listing of workshops that are plannedfrom now until the end of March.
Southall Black Sisters – The caseagainst Ealing
Louise Whitfield, PLP
 
R (Kaur & Shah) v London Borough of Ealing 
In July 2008, two service-users of Southall Black Sisters (SBS) tookEaling Council to court over their decision to change the way they fundedsupport services for victims of domestic violence (DV). The judgment ishelpful in clarifying the law on a number of points concerning localauthorities’ duties under the Race Relations Act (RRA) and the provisionof specialist services for BME groups.
 
 2
Empowering the voluntary sectorIssue 7 
Background and the basis of the claim
The case was about a decision by Ealing Council to switch funding awayfrom SBS’ specialist domestic violence service for BME women and touse that funding to provide an “all-women” service of the same standardwhich would also target certain groups. However, no additional fundingwas being made available by the council; the successful bidder was toprovide a similar level of service to all women without any extra funding.Initially Ealing intended to implement this decision (i.e. go ahead withcommissioning a new service on this basis) and then carry out a raceequality impact assessment (REIA). When litigation was first threatenedby the service-users in December 2007 (on the basis that the REIAshould be done first), the council agreed to withdraw their decision, dothe REIA and then re-take the decision.However, the REIA that was then produced and consulted on wasseriously flawed, and Ealing’s decision to approve the new grant criteriawas therefore unlawful. The service-users relied on a number of legalpoints to argue that Ealing had acted unlawfully:
•
 The REIA was inadequate and the council therefore had not met theirduty under s.71(1) RRA (the duty to promote race equality).
•
 The council had failed to follow its own EIA guide.
•
 The council had misinterpreted the figures and so had made falseassumptions about the prevalence of domestic violence amongstBME communities.
•
 The council had wrongly relied on the cohesion guidance for fundersand their cohesion strategy generally to argue that a generic servicewas necessary.
•
 The council had misunderstood how it should (orcould) promote good race relations.In response, the council claimed their REIA wassufficient and they carried out a further, fuller REIA afterthe case started. They also claimed that it would beunlawful to fund SBS unless there was a special case(i.e. specific evidenced need for BME only services)
…the REIA that was then produced and consulted on was seriously flawed,and Ealing’s decision to approve the new grant criteria was therefore unlawful 
 
 3
Empowering the voluntary sectorIssue 7 
and s.35 of the RRA applied. Section 35 is the part of the RRA thatallows services to be for particular groups only, an essential part ofequality and anti-discrimination legislation.
The court case
Proceedings were begun in the High Court in April and a two-day trialstarted on Thursday 17 July. At lunchtime on Friday, the council withdrewfrom the case, agreeing to their decision on the grant criteria beingquashed, and confirming that they would go back to the drawing boardand start the entire process again including a fresh REIA on any newproposals. This meant that Ealing did not finish their legal submissions,but the judge agreed to give judgment to provide guidance on the keyissues.The key findings for the voluntary sector are as follows (see below fornotes of what the judge actually said):
•
 REIAs must be undertaken before policy is decided upon orimplemented;
•
 REIAs cannot be a rearguard action to justify a policy alreadydecided;
•
 the impact on those losing a service should be assessed, not just thenew service that is being proposed;
•
 in this case Ealing should have done the REIA before they decided tolimit applications to one provider or a consortium;
•
 Ealing’s interpretation of s.35 RRA was wrong; it was not unlawful tofund such a group, in fact it was sometimes essential to do so.
Quotes from the judgment by Lord Justice Moses
“The jurisprudence [legal theory] relative to the issues reinforces the importance of considering the impact of any proposed policy before it is adopted as part of the significant role of section 71 in fulfilling the aims of anti-discriminatory legislation…In considering the impact, the authority must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated.” 
of 00

Leave a Comment

You must be to leave a comment.
Submit
Characters: ...
You must be to leave a comment.
Submit
Characters: ...