The Public Sector Equality Duty - what does it mean and how does it work?

Sun, 05 Feb 2012

By David Lock
This paper deals with the present state of the law concerning the Public Sector Quality Duty (“the PSED”) and how public bodies are required to act in order to comply with the duty.
 
The legislation:
On 5 April 2011 the public sector equality duty (the equality duty) came into force in England, Scotland and Wales replacing the existing race, disability and gender equality duties. The aim of the legislation is to ensure that public bodies play their role to promote equality of opportunity which involves:
•    Removing or minimising disadvantages suffered by people due to their protected characteristics.
•    Taking steps to meet the needs of people from protected groups where these are different from the needs of other people, and 
•    Encouraging people from protected groups to participate in public life or in other activities where their participation is disproportionately low.
 
The Guidance from the Equality and Human Rights Commission (see http://www.equalityhumanrights.com/uploaded_files/EqualityAct/PSED/essential_guide_guidance.pdf) says the broad purpose of the equality duty is to positively contribute to the advancement of equality and good relations into the day-to-day business of public authorities. It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review (see http://homeoffice.gov.uk/equalities/). It has published an “Equality Strategy - Building a Fairer Britain”.
 
The PSED is now in section 149 of the Equality Act 2010 which provides as follows:
“(1)    A public authority must, in the exercise of its functions, have due regard to the need to— 
(a)    eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; 
(b)    advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c)    foster good relations between persons who share a relevant protected characteristic and persons who do not share it”.
 
Statutory predecessors of this duty were contained in a number of statutes dealing with discrimination including section 49A of the Disability Discrimination Act 1995. In R (on the application of Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) Aitkins LJ said at §79:
 
“ ..the aim of the 2005 amendments to the DDA is to make public authorities place disability equality for all at the centre of their organisation, policy making and functions, so as to further the important goal of the elimination of discrimination and harassment of disabled people and the promotion of equality of opportunity for them in society in general”
 
The Judge also said at §80:
 
“The section 49A(1) duties are mandatory, as is clear from the opening words of the section; public authorities "shall", in carrying out their functions (as public authorities), "have due regard" to six "needs" which are identified in the paragraphs (a) to (f) of section 49A(1). Each "need" identifies a particular goal, which, if achieved, would further the overall goal of the legislation dealing with disability discrimination”
 
The observations apply just as much to the present version of the PSED. The public authority needs, for example, to specifically bear in mind the effect of all of its decisions on those who have disabilities in order to understand how a general decision, which on its face does not appear to be intentionally discriminatory, may nonetheless affect those with disabilities. The duty can include a duty to consider taking active steps to promote the identified “needs” tackle discrimination where the discrimination is created by others who the public body can influence as well the public body not actively discriminating itself. 
 
There are a number of elements to this statutory definition which need examination, namely:
1.    Which bodies are included within the expression a "public authority"?
2.    What is meant by a protected characteristic?
3.    When does the duty apply?
4.    What is meant by the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it?
5.    What is meant by the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it?
6.    What is the meaning of "due regard"?
7.    What about countervailing factors?
8.    What information is a public authority required to publish?
9.    How and where do Equality Impact Assessments fit in?
10.    Remedies. 
 
1.    Who is a public authority?
Public law statutes which impose duties on public bodies fall into two categories. Some statutes include a defined list of public bodies for the purpose of the statute. Others apply to any public body discharging public functions. An example of the former is the Freedom of Information Act 2000 and an example of the latter is the Human Rights Act 1998. The Equality Act 2010 defines list of public authorities caught by the statutory duty in Schedule 19 to the Act. The Schedule includes for example primary care trusts, all government departments, local authorities and police authorities.
 
2.    What is meant by a protected characteristic?
The protected characteristics are listed in section 149 as follows: disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
 
3.    When does the duty apply?
The duty applies whenever a public body is exercising any of its functions. In R (on the application of W) v Birmingham City Council [2011] EWHC 1147 (Admin) Walker J decided that the duty applied to individual decisions concerning individual service users just as it applied to policy decisions:
 
“To what decisions does the duty apply?
i. The duty applies to all decisions taken by public bodies, including policy decisions and decisions on individual cases; 
ii. The duty 'complements' specific statutory schemes which may exist to benefit disabled people; 
iii. The disability equality duty is at its most important when decisions are taken which directly affect disabled people; 
iv. The duty requires public authorities to take action to tackle the consequences of past decisions which failed to give due regard to disability equality; 
v. The duty requires the circumstances of the full range of disabled people to be taken into account and may require certain groups of disabled people to be prioritised, for example on the basis that they experience the greatest degree of exclusion”.
 
4.    What is meant by the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it?
 
Section 149(3) involves having due regard, in particular, to the need to—
 
“(a)    remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; 
 
(b)    take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; 
 
(c)    encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low”
There has been little litigation about what these mean, and in any event any analysis would be highly fact specific depending on the circumstances of an individual case.
 
5.    What is meant by the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it?
 
Section 149(5) provides that having due regard to the need to foster good relations between persons who share a relevant protected characteristic and those who do not share it involves having due regard, in particular, to the need to (a) tackle prejudice, and (b) promote understanding. Once again the duty here includes a duty to consider taking active steps to create a discrimination free society where the discrimination is created by others as well as the public body not actively discriminating itself.
 
6.    What is the meaning of "due regard"?
 
The duty under section 149 is a duty to have "due regard" to the matters set out in the section. In Brown the Court said due regard means “the regard that is appropriate in all the particular circumstances in which the public authority concerned is carrying out its function as a public authority” and that “public authorities have to have a proper regard for the need to achieve those goals”.
 
The Divisional Court in Brown identified 6 principles:
 
1.    Those in the public authority who have to take decisions that might affect disabled people must be aware of their duty to have "due regard" to the identified goals.
2.    The "due regard" duty must be fulfilled before and at the time that a particular policy is being considered by the public authority. It involves a conscious approach.
3.    The duty must be exercised in “substance, with rigour and with an open mind”. It is not a question of "ticking boxes".
4.    The duty imposed on public authorities that are subject to the section 49A(1) duty is a non – delegable duty. In practice another body may actually carry out practical steps to fulfil a policy stated by a public authority that is charged with the section 49A(1) duty. In those circumstances the duty to have "due regard" will only be fulfilled by the relevant public authority if (1) it appoints a third party that is willing and capable of fulfilling the "due regard" duty; and (2) the public authority maintains proper supervision over the third party to ensure it carries out its "due regard" duty.
5.    The duty is a continuing one.
6.    It is good practice to keep an adequate record showing that they had actually considered their disability equality duties and relevant questions. Proper record - keeping encourages transparency and will discipline those carrying out the relevant function to undertake their disability equality duties conscientiously.
 
7.    What about countervailing factors?
 
There have been a number of cases where public bodies have understood that their decisions will have adverse effects for those groups that have a protected characteristic, but nonetheless they actively make those decisions because of other factors, notably budget pressures. In R (Baker) v. Secretary of State for Communities and Local Government [2008] EWCA Civ 141, which was a planning case, Dyson LJ said:
 
"In my judgment, it is important to emphasise that the section 71(1) duty is not a duty to achieve a result, namely to eliminate unlawful racial discrimination or to promote equality of opportunity and good relations between persons of different racial groups. It is a duty to have due regard to the need to achieve these goals. The distinction is vital.....What is due regard? In my view, it is the regard that is appropriate in all the circumstances. These include on the one hand the importance of the areas of life of the members of the disadvantaged racial group that are affected by the inequality of opportunity and the extent of the inequality; and on the other hand, such countervailing factors as are relevant to the function which the decision-maker is performing."
What if the Council says that it accepts that the imposition of extra charges on the disabled but it says that its higher priority is not increasing the taxes on existing Council tax payers? This would be a policy which would be hard to fit into the statutory scheme. It was nearly considered in R (on the application of Domb and Ors) v London Borough of Hammersmith and Fulham and Ors [2009] EWCA Civ 941 but the court ducked the issue on the facts. 
 
However they said:
 
“.. in another case, it might .. be necessary for a local authority to be able to demonstrate, as a matter of its duty to have due regard to the need to promote disability equality that it had considered, in substance and with the necessary vigour, whether it could by any means avoid a decision which was plainly going to have a negative impact on the users of existing services”
 
8.    Publication of information
 
Under the previous statutory schemes, public bodies were required to publish “schemes” to show how they would comply with their obligations. For example see the Sex Discrimination Act 1975 (Public Authorities) (Statutory Duties) Order 2006 which required public bodies to publish a Gender Equality Scheme showing how it fulfilled its duties under section 76A(1) of the SDA and that Order. The publication of “schemes” has been abandoned by the present government and regulation 2 of the Equality Act 2010 (Specific Duties) Regulations 2011 now provides:
 
“Each public authority listed in either Schedule to these Regulations must publish information to demonstrate its compliance with the duty imposed by section 149(1) of the Act”
 
Those public bodies, including NHS bodies, listed in Schedule 1 to the Regulations must publish the required information by 31st January 2012 and those in Schedule 2 must publish by 6th April 2012 and thereafter “subsequently at intervals of not greater than one year beginning with the date of last publication”.
Regulation 4 (which only applies to public bodies with more than 150 employees) provides:
 
“The information a public authority publishes in compliance with paragraph (1) must include, in particular, information relating to persons who share a relevant protected characteristic who are—
 
(a) its employees;
 
(b) other persons affected by its policies and practices”
 
Under Regulation 3 each public body must also prepare and publish one or more “specific and measurable” objectives it thinks it should achieve to do any of the things mentioned in paragraphs (a) to (c) of subsection (1) of section 149 of the Act not later than 6th April 2012 and subsequently at intervals of not greater than four years beginning with the date of last publication (See http://www.equalityhumanrights.com/advice-and-guidance/public-sector-equality-duty/news-and-updates-on-the-equality-duty).
 
9.    Where do Equality Impact Assessments fit in?
 
An Equality Impact Assessment (“EqIA”) is a systematic method of assessing and recording the likely differential impact of proposed policies, initiatives or changes to services/procedures on equality target groups served by the public body or in the community generally. The aim is to anticipate any adverse impacts and amend the proposals to deal with them. There is no statutory obligation to carry out an EqIA but it is a method of demonstrating compliance. However if the impact assessment is carried out it needs to be undertaken properly. In R (on the application of Kaur and Shah) v London Borough of Ealing and Anor [2008] EWHC 2062 (Admin) Moses LJ said:
 
“The need for advanced consideration must be distinguished from the use of such impact assessments for what Lord Justice Sedley described as a rearguard action following a concluded decision...What is important is that a racial equality impact assessment should be an integral part of the formation of a proposed policy, not justification for its adoption”
 
10. Remedies
 
Section 156 provides that a failure in respect of a performance of a duty imposed by or under this Chapter does not confer a cause of action at private law.
 

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