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Public Sector Equality Duty: Practical Pointers

Katherine Apps

The PSED

Section 149 of the EA 2010 requires a local authority “in the exercise of its functions” to have “due regard” to the need to:

1. Eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
2. Advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
3. Foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

 There is no shortage of case law under section 149. Key principles include: 

1. The duty must be considered before the policy/ decision is made, and not afterwards: (Kaur & Shah v London Borough of Ealing [2008] EWHC 2062 (Admin)).
2. “General regard to the issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria.” (David J in R (Meany v Harlow District Council [2009] EWHC 559; R (Bailey) v Brent LBC [2011] EWCA Civ 1586 at 74-75).
3. All the same it is not a “tick box” exercise for the decision maker: (R (Hurley) v Secretary of State for Business, Innovation and Skills [2012] HRLR 374, per Elias LJ at 87).
4. The duty includes a duty to gather relevant information, but Courts should not “micro manage” that exercise: (R (Bailey) v London Borough of Brent [2011] EWCA Civ 1586, per Davis LJ at 102).
5. Section 149 imposes a duty to have “due regard” and not a duty to achieve a result: this distinction is “vital” (R (Baker) v Secretary of State for Communities and Local Government [2008] EWCA Civ 141, [2008] LGR 239, per Dyson LJ at 7).

For those advising local authorities, section 149 poses a practical challenge: how to demonstrate a paper trail of compliance, without being said to have adopted a purely tick box approach?

EIAs

Equality Impact Assessments (EIAs)/ Equality Analyses (EAs) can be a helpful starting point.

In Judicial Review challenges Courts often grapple with the wording used in an EIA/ EA. However, as Underhill J said in R (Bailey & Ors) v Brent LBC [2011] EWCA Civ 1586 para 35 “[the court is] not concerned with a drafting competition, and EIAs are not legal documents. Their purpose is to evidence that due regard has been had to the specified factors (so far as they are in play).”

• Cases where both EIAs/ EAs and consultation had been carried out, but a PSED challenge succeeded, are plentiful. For example:
     
• R(W) v Birmingham City Council [2011] EWHC 1147 (Admin) there was both a preliminary EIA, and a revised EIA and a document called the “full” Equality Impact Needs Assessment (EINA). Walker J referred to the substantial volume of work which had gone into the EINAs. However, even though they were thorough, they had not asked the “right” questions (para 189). There was also no evidence that any Council member making the decision had in fact had regard to them during the meeting at which the decision was taken, and no evidence that the EINA had been read by them. Although Walker J found that these points were not critical (having found the PSED was not satisfied for other reasons), he prominently parked these features as “left over” points, which could prove decisive in other cases.

• Blake and others v London Borough of Waltham Forest [2014] EWHC 1027 concerned a challenge to the decision to terminate the license of a soup kitchen. An EIA had been prepared. It considered most of the potential consequences of the decision to terminate the license, but not the possibility that the soup kitchen would not reopen at all (Simler J paras 67-74).

• However, there may be some cases where there has been no EIA/ EA (or no EIA/ EA “yet”) but all hope may not be lost. For example:
     
• In the landmark Baker case, although there was a reasoned decision, there was no EA/ EIA.

• Recently, in R (BAPIO) v Royal College of General Practitioners and General Medical Council [2014] EWHC 1416 (Admin) the General Medical Council succeeded in defending Judicial Review proceedings where, at the relevant time, no EIA/ EA had been carried out. In BAPIO the Claimants challenged the “Clinical Skills Assessment”, the test which GPs must ultimately pass in order to practice unsupervised. Doctors rarely fail the Clinical Skills Assessment, but of the 133 who did between 2007 and 2012, 120 were foreign graduates. A smaller proportion of BME and South Asian doctors passed, than those who described themselves as “white.” The Claimants argued that the Respondent had not discharged its PSED in “doing nothing” to redress the state of affairs. The Respondent had begun to consider the ways in which the apparent disparity could be addressed but had not (yet) acted. Since 2012 no EIA or EA had been completed. Mitting J held that there was no breach of the PSED at the time of the claim. Were the regulators not to address the issue “very soon” they may be in breach, but as at the date of the claim, there was no breach. The lack of an EA/ EIA was not fatal.

Consultations

Where a consultation has been carried out, this can also be of assistance in demonstrating discharge of the PSED:

• In R(LH) v Shropshire Council [2014] EWCA Civ 404 the Court of Appeal considered a consultation and PSED challenge to the Council’s decision to close a day care centre in Shrewsbury. A consultation exercise was carried out. Although the Council had “taken a great deal of trouble” to explain its reconfiguration of adult day care and the application of personal budgets to present service users, towards the end of the process, it had not given them sufficient time to respond. The consultation exercise was not lawful. Longmore LJ held that the consultation process “show[ed] that the Council did have due regard” to the three limbs of the PSED (para 33). Had he held that the consultation had been lawful, he would have held that the Council had complied with the PSED (para 34).
     
• However, a lawful consultation is not a guarantee of PSED compliance. In R (Bracking) v Secretary of State for Work and Pensions (No 1) [2013] EWCA Civ 1345; [2014] Eq. L.R. 60 the Court of Appeal considered a PSED and consultation challenge to the decision to close the Independent Living Fund. The Court of Appeal held that the consultation exercise which had been conducted was lawful. The materials before the Minister which arose from that consultation, however, did not discharge her obligations under the PSED.

What is the impact of a failure to comply with the PSED on a Judicial Review challenging the lawfulness of a consultation? The Courts seem to have been less forgiving: a section 149 breach may well be a fatal blow to a defence of a consultation challenge (Walker J held this to be the “inevitable” consequence in R(W) para 189).

So, what practical guidance can be given?

1. Although the authorities underline the PSED does not require a “tick box” approach, an authority may well be in a stronger position to defend a Judicial Review in a case where the boxes have been “ticked”, than when they haven’t.
      
2. A documentary record may well be in an EA/ EIA, or in other documentary materials considered by a decision maker.
      
3. An EIA which fails to engage with the three limbs of the PSED and how those relate with the decision being made, is likely to be more difficult to defend in a judicial review challenge than one which does.
      
4. If there is no EIA or it is defective, is/are there some other document(s) which can evidence that the decision maker had due regard to the necessary features?
      
5. If there are no documents, were there oral discussions? Is there someone who can give relevant witness evidence as to the content of those discussions?
      
6. PSED and consultation challenges are not infrequently made in tandem. Evidence which assists in establishing that a consultation complies with the principles in R v Devon County Council, ex parte Baker [1995] 1 All E.R. 75, may well assist in defending a PSED challenge. These principles were developed in the context of the closure of care homes, but are helpful to consider in other “cuts”/ closure cases in a structured manner:
      
1. Did those affected by the decision know that closure was under consideration “well before” the final decision was made?
      
2. Did they have a reasonable time to put any responses to the Council?
      
3. Were those responses considered?
      
4. Can a paper trail be shown between the consultation responses and the decision maker? Were the consultation responses summarised or are extracts quoted directly in materials read by the decision maker? Did respondents complain of lack of time? If so did the decision maker consider delaying the decision to permit consultees more time to respond? If so, did the decision maker have regard to the PSED when considering this?
      
7. The Courts have held that the position for an authority faced with an apparent discriminatory impact of an existing state of affairs is not necessarily any different than one making a new decision which may cause a discriminatory impact (BAPIO para 31). However, if a claim is made challenging an existing state of affairs, rather than a new decision, the paper trail may well be different. When addressing an existing state of affairs, as in BAPIO, it may be more open to an authority to rely on steps it intends to take in the future, than when defending a decision which has already been taken.