From an equality perspective, we are undoubtedly living in interesting times. One unintended consequence of the widespread cuts in public spending has been the sharp increase in litigation using the Public Sector Equality Duty (PSED), as the vehicle for challenging decisions regarding the reduction or cessation of spending on certain activities and services.
These cases arguably increase the importance of equality considerations within the public sector, at a time when resources are being severely stretched.
Gone are the days when equality could be viewed in isolation as a matter for HR alone. Decision makers in public authorities need to make more than a high level nod to the PSED when making tough decisions about funding services. What is clear from recent cases is that vulnerable groups must be given adequate consideration, and courts have shown that they will intervene when the appropriate process has not been followed. It is also clear that PSED compliance means keeping up to date with the principles flowing from what might be termed the “due regard” case law which has built up over the last few years.
The s 149 duty
Irene Henery’s article (see panel) touches on the PSED in her introduction to the new specific duties in Scotland. Broadly speaking, s 149 of the Equality Act 2010 requires public authorities to pay “due regard” to the need to eliminate unlawful discrimination, and advance equality of opportunity.
Prior to the Act, equality duties only existed in relation to sex, race and disability. Now the duty is much broader and covers eight protected characteristics, the additional ones being age, gender reassignment, religious belief, sexual orientation, and pregnancy and maternity.
Combining the additional obligations in the new specific duties with the need to consider equality objectives across all eight characteristics will not be easy. One must have a great deal of sympathy for public sector bodies grappling with the question of how to prioritise resourcing and the implementation of these changes. Yet a failure to grasp the nettle now may lead to an expensive legal challenge in the future.
Recent years have seen the practical significance of the PSED transformed from what was suggested to be an overly process- driven, action-planning bureaucratic concept to a mechanism that can be used to challenge the lawfulness of the process adopted to implement financial decisions via judicial review. Until the cases that followed the first spending review in 2010, PSED litigation to challenge financial decision making was rare.
One early case to use the PSED to challenge a funding decision was R (Kaur) v London Borough of Ealing  EWHC 2062 (Admin), raised by the Southall Black Sisters (SBS), who challenged Ealing Borough Council’s decision to fund only organisations providing borough-wide services to all individuals experiencing domestic violence. SBS provided such services to Asian and Afro-Caribbean women. Concerned that this change in funding would have a disproportionate effect on ethnic minorities, they argued that the council had failed to comply with the PSED, and, in particular, had failed to carry out an equality impact assessment (EQIA) regarding racial impact. The court held that the council’s racial EQIA should have been an integral part of the formation of the policy decision, as opposed to justification for its adoption.
The critical aspect of these recent cases is this concept of “due regard” in s 149, which involves an assessment of relevance and proportionality, the key approach being to identify a sliding scale of priorities: in summary, the greater the relevance for equality, the higher the priority.
A body of English case law has built up around these two words, and “due regard” has led to some important principles being established which are known broadly as the Brown principles, from R (Brown) v Secretary of State for Work and Pensions  EWHC 3158 (Admin). The Equality and Human Rights Commission (“EHRC”) summarises the principles as follows:
Decision-makers must be made aware of their duty to have “due regard” to the aims of the duty.
Due regard is fulfilled before and at the time a particular policy that will or might affect people with a protected characteristic is under consideration, as well as at the time a decision is taken.
Due regard involves a conscious approach and state of mind. A body subject to the duty cannot satisfy the duty by justifying a decision after it has been taken. Attempts to justify a decision as being consistent with the exercise of the duty, when it was not considered before the decision, are not enough to discharge the duty. General regard to the issue of equality is not enough to comply with the duty.
The duty must be exercised in substance, with rigour and with an open mind in such a way that it influences (in the sense of informing) the final decision.
The duty has to be integrated within the discharge of the public functions of the body subject to the duty. It is not a question of “ticking boxes”.
The duty cannot be delegated and will always remain on the body subject to it.
It is good practice for those exercising public functions to keep an accurate record showing that they had actually considered the general equality duty and pondered relevant questions. If records are not kept, it may make it more difficult, evidentially, for a public authority to persuade a court that it has fulfilled the duty imposed by the equality duties.
Testing the process
In R (Rahman) v Birmingham City Council  EWHC 944 (Admin), the council (“BCC”) decided to terminate funding for organisations delivering legal entitlement and advice services, prior to a major recommissioning exercise affecting these services. The claimants, service users affected by the closures resulting from the funding reduction, challenged that decision, arguing a breach of the PSED.
In ruling that the duty had been breached, the court explained that there was no evidence that all decision-makers were aware of the race and disability PSED. In addition, the relevant service providers who could identify the consequences of the decision had not been consulted.
The key point to note is that the court is not saying that the conclusion and outcome of the funding allocation itself is inevitably “wrong”, rather that there had been inaccurate and inadequate consideration of the factors that the PSED necessarily imports. Consequently, the process that led to the decision was flawed, such that the decision could not stand by virtue of the process which led to it.
A similar approach was adopted by the court in R (W) v Birmingham City Council  EWHC 1147 (Admin). BCC decided to restrict eligibility for adult social care services to people with critical level needs. Previously, care had been given to those judged as having critical and substantial needs. Again, the court held that there had been a breach of the PSED due to a failure by the council to ask “the right questions” in the course of the equality impact assessment in relation to disabled service users. There was no assessment of mitigating factors which could reduce the severity of the proposal on disabled persons, and those who were consulted were not asked to consider whether a “substantial” criterion for eligibility should be retained.
And most recently, in R (Williams) v Surrey County Council  EWHC 867 (QB), the claimants successfully argued that the council had failed to give due regard to the PSED in relation to a decision regarding the closure of certain libraries and the move to a community partnership model. In particular, the court highlighted that relevant decision makers had failed to give proper consideration to the need for equality training for the volunteers who would staff the library following the restructure.
This case is also interesting from a technical perspective in extending the list of Brown principles to some 14 factors. This may be particularly relevant to English authorities, who have very basic, light-touch specific duties. At the moment, the steps set out by the judicial principles in relation to the scope of “due regard” appear to be filling the vacuum left by the minimal process involved in the English specific duties.
In contrast, unsuccessful PSED challenges, where the court rejected a contention that a flawed decision-making process was applied, include R (D and S) v Manchester City Council  EWHC 17 (Admin), and R (Bailey) v London Borough of Brent  EWHC 2572 (Admin);  EWCA Civ 1586. Here the public authorities were able to demonstrate (via evidence brought before the court as opposed to mere assertion); the adoption of sound equality processes, effective consultation with stakeholders affected by the proposed spending reduction, relevant impact assessment, and that decision makers were fully aware of what “due regard” means in practice. This includes the need to consider alternatives and ways of mitigating impact, prior to making a decision.
In an interesting twist, the Government itself was forced to explain the steps which had been taken to comply with the PSED during the 2010 spending review. Under s 31 of the Equality Act 2006, the EHRC can conduct an assessment into compliance with the PSED. This followed an unsuccessful attempt to bring judicial review proceedings challenging the June 2010 emergency Budget. The EHRC’s findings were published last month and concluded that “overall, the Commission found a serious effort by ministers and officials to meet their obligations under the existing equality duties”.
The time and effort required to cure a flawed decision-making process as identified in the Rahman and W cases above should not be underestimated. In order to be able to implement decisions promptly and with reasonable confidence that will not be open to PSED challenge, public bodies need to be seen to be engaging actively with the Brown principles – in other words, giving due regard to “due regard”.
Spelling out the equality rule
Irene Henery explains what is required by the specific duties now applied to public authorities in Scotland by regulations under the Equality Act 2010
On 27 May 2012, the long-awaited Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 came into force.
The specific duties apply to the public authorities listed in the schedule to the regulations. There are separate regulations for England & Wales.
The Scottish specific duties are summarised here. Guidance issued by the Equality and Human Rights Commission (EHRC), referred to below, gives more detailed practical advice.
A means to an end
The key to understanding the specific duties is remembering that their purpose, set out in s 153(3) of the Equality Act 2010, is to enable better performance of the general equality duty under Part 11 of the Act. This has been in force since 5 April 2011 and listed authorities will be familiar with its requirements.
The general equality duty requires public authorities to have due regard to the need to:
- eliminate discrimination, harassment, victimisation and any other prohibited conduct;
- advance equality of opportunity by having due regard in particular to the need to: remove or minimise disadvantage; meet the needs of particular groups that are different from the needs of others; and encourage participation in public life;
- foster good relations, in particular by tackling prejudice and promoting understanding.
The general equality duty applies to all public authorities included in sched 19 to the Act (as amended by the Equality Act 2010 (Specification of Public Authorities) (Scotland) Orders 2011 and 2012), and applies to all of their functions. It also applies to others not listed, but who exercise public functions, in respect of those particular functions. Only authorities listed in the regulations are subject to the additional specific equality duties. However, other authorities will find that meeting the requirements of the specific duties will assist them to meet the general equality duty and to demonstrate how this has been done.
The specific duties
To enable better performance of the general equality duty, the specific duties require authorities to:
• Report progress on mainstreaming the general equality duty
By 30 April 2013, and every two years thereafter, authorities should report on their progress in mainstreaming equality: that is, their work to make meeting the general duty integral to their functions. The report must include an annual breakdown of employee information gathered, together with details of progress made in using the information to assist the authority in meeting the general equality duty.
• Publish equality outcomes and report progress in meeting those
Authorities must set equality outcomes, results that the authority aims to achieve in furthering one or more of the needs of the general duty. In other words, equality outcomes are the improvements in the lives of people affected by what the authority does, as a result of the actions it takes. An example might be to improve educational attainment and achievement for disabled children/young people and Gypsy Traveller children/young people.
In setting those outcomes, authorities must take reasonable steps to involve people with protected characteristics and those the authority thinks represent their interests, and also consider relevant evidence. If the set of outcomes does not further all parts of the general equality duty in relation to every characteristic, the authority must publish reasons for this. The first set of outcomes should be published by 30 April 2013, with each subsequent set at intervals of no more than four years. Reports on progress are required every two years.
• Impact-assess new or revised policies and practices and make arrangements to review existing policies and practices
For the first time there is a specific duty to assess equality impact. To ensure due regard, authorities have a duty to assess the impact of applying a new or revised policy or practice against the needs of the general equality duty. Previously impact was assessed against equality for certain groups. In meeting this duty, authorities must consider relevant evidence, and take account of the results of any assessment. If a decision is taken to apply the policy or practice, the authority must publish, within a reasonable period, the results of its assessment.
• Gather, use and publish employee information
Every year, an authority must take steps to gather information on the number and characteristics of its employees, and their recruitment, development and retention. It must then use the information to assist it in meeting its general equality duty.
• Publish gender pay gap information and an equal pay statement
For the period an authority has 150 or more employees, it must publish pay gap information – the percentage difference between men’s average hourly pay and women’s average hourly pay (excluding overtime) – and an equal pay statement. The information should be published in its mainstreaming report by 30 April 2013 and every second year thereafter.
The equal pay statement must contain the authority's policy on equal pay, and occupational segregation between: women and men; disabled people and non-disabled people; people in a minority racial group and people who are not. However the authority’s first report only requires information in relation to women and men. The statement should be published by 30 April 2013 and every fourth year thereafter.
• Consider adding equality criteria and contract conditions in public procurement exercises
If an authority intends to enter a procurement agreement which is “the most economically advantageous”, it must have due regard to whether the award criteria should include considerations which will help it meet its general equality duty. This would depend on the relevance to equality of what is being procured, and the proportionality of taking action. Also, if an authority intends to put performance conditions into an agreement, it needs to have due regard to whether these should include considerations which will help it meet its general equality duty. No action is needed if, in all the circumstances, the general equality duty is not related to the subject matter of the contract and action would not be proportionate.
The regulations require that all publication must be accessible and that, so far as practicable, an existing means of public performance reporting should be used.
There is a separate duty on Scottish ministers to publish proposals for activity to enable listed authorities to better perform the general equality duty.
There is quite a wide divergence between the duties in Scotland, and England & Wales. In England the focus is on “transparency” and there are only two duties: to set one or more objectives, and to publish information to demonstrate compliance with the general equality duty.
Keeping in line
Judicial review of an authority can be taken by any person (including the EHRC) or group of people with an interest, in respect of alleged failure to comply with the general equality duty. Only the EHRC can enforce the specific duties. A failure to comply with the specific duties may however be used as evidence of a failure to comply with the general duty.
To coincide with the regulations coming into force, the EHRC has published a range of guidance on the specific duties:
1. Essential guide to the public sector equality duty
2. Equality outcomes and the public sector equality duty
3. Evidence and the public sector equality duty
4. Involvement and the public sector equality duty
5. Assessing impact and the public sector equality duty
6. Mainstreaming the equality duty
7. Employee information and the public sector equality duty.
Further information can be found on the public sector equality duty section of the Commission’s website: www.equalityhumanrights.com/scotland/public-sector-equality-duty-in-scotland/
For copies of the guidance in alternative formats and/or languages contact:
Equality and Human Rights Commission Helpline – Scotland
PO Box 26961
Glasgow G2 9DU
Telephone: 0845 604 5510
Textphone: 0845 604 5520
Fax: 0845 604 5530
In this issue
- Prescription and title to moveable property
- Gold-plated pension liabilities – what next for law firms?
- Getting your fix
- A trainee perspective on business development
- Embedding ADR in the civil justice system
- From death to life
- Reading for pleasure
- Appreciation: Alistair Hamilton
- Who shares in the common grazings?
- Opinion column: Mev Brown
- Book reviews
- Council profile
- Why the dual role works
- Rights both ways: a contrary view
- President's column
- Property reports relaunched
- Equality in austerity
- How old is too old?
- Expanding the country file
- The social side of practice
- Judicial minefield
- Program protection
- Life bans just not sporting
- Coleman revisited
- Never mind the reasons
- Another year in focus
- Law reform roundup
- Business checklist
- Banks: POA campaign continues
- Ask the experts
- Ask Ash