CA-2024-002348 - [2025] EWCA Civ 1390

The respondent, in its respondent’s notice, submitted that the Judge erred in finding that there was a breach of section 149 because of the failure to monitor or record statistics. Mr Paget, in his written skeleton argument, submitted that there was no duty to monitor but simply a duty on the respondent to ensure it was sufficiently informed so that it could comply with its duty under section 149. There was nothing to suggest that there had been any breach of that duty in the present case. Alternatively, if there were a breach, Mr Paget submitted that the Judge was right to refuse a remedy for the reasons she gave.

Ms Davies submitted that the Judge was right to find that there was a breach of section 149 but wrong to refuse a remedy. She submitted that the decision under challenge, the 23 May 2023 decision, was unlawful because the failure to monitor meant that the respondent did not have sufficient information to have due regard to the relevant equality considerations. She submitted that the point about the impact on homeless households with disabled members had been raised before 23 May 2023, as it had been referred to in the pre-action protocol letter, and the respondent had taken no steps to “have due regard”. Ms Davies relied upon the decision R (DXK) v Secretary of State for the Home Department [2024] EWHC 579 (Admin), [2024] 4 WLR 46 (“DXK”).

Ms Davies submitted that the Judge was wrong to refuse a remedy. The correct approach was set out in R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214; [2020] PTSR at [272] which indicated that it would often be difficult for a court to conclude that the outcome would not have been substantially different if the public body concerned had not made the error. She referred to R (AK) v Westminster City Council [2024[] EWHC 769 (Admin), [2024] PTSR 940 as an example of the correct approach.