Complying with the Public Sector Equality Duty

In his latest bulletin for monitoring officers, Geoff Wild looks at how local authorities should approach the public sector equality duty.

The Public Sector Equality Duty (PSED) is a duty on public authorities to consider or think about how their policies or decisions affect people who are protected under the Equality Act 2010. Private organisations and individuals don’t have to comply with the duty. If a public authority hasn't properly considered its PSED, it can be challenged in the courts by way of judicial review.

When public authorities carry out their functions, the Equality Act says they must have due regard or think about the need to:

• Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act
• Advance equality of opportunity between people who share a protected characteristic and those who don’t
• Foster or encourage good relations between people who share a protected characteristic and those who don’t

Having ‘due regard’ means public authorities must consciously consider the need to do the three things set out above.

Protected characteristics

People protected under the Act have what’s called ‘protected characteristics’, namely:

• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
• religion or belief
• sex
• sexual orientation

Marriage and civil partnership are protected characteristics under the Equality Act but these are not specifically covered by the PSED.

Duties

The PSED consists of a ‘general’, or overarching, duty and a ‘specific duty’, which is intended to help performance of the general duty by placing an obligation on each authority to publish annual information to demonstrate their compliance with it and publish a minimum of one equality objective, at four yearly intervals, to help further the aims as set out above.

In practical terms, the PSED is not prescriptive about what approach an authority should take in order to comply with its legal obligations, but as a minimum authorities to whom the PSED applies should take into account the three aims set out below as an integral part of their decision-making processes:

• Removing or reducing disadvantages suffered by people because of a protected characteristic
• Meeting the needs of people with protected characteristics
• Encouraging people with protected characteristics to participate in public life and other activities

One component of the PSED is that public authorities should recognise that the needs of a person who has a protected characteristic may be different from those of a person who does not, and account should therefore be taken of this when making decisions about policies or services.

In thinking about whether they should take action to meet the needs or reduce the inequalities of those with protected characteristics, public authorities are allowed to treat some groups more favourably than others.

Guidance

Guidance has been published by the Equality and Human Rights Commission to help public authorities fulfil their duties under the Act. It confirms that the PSED makes good business sense, and that meeting the diverse needs of others should allow authorities to carry out core business more efficiently. Nevertheless, the duty also comes with a degree of administrative and regulatory burden: publishing information and objectives takes up management time and is not cost-free.

The Local Government Association has also published a framework to help councils meet their obligations under the Equality Act 2010, including the PSED. It comprises four performance areas:

1. Understanding and Working with your Communities
2. Leadership and Organisational Commitment
3. Responsive Services and Customer Care
4. Diverse and Engaged Workforce

Budget Setting

One key area where the PSED is engaged is in setting the Council’s annual budget. It is important to understand what the law requires by way of adequate consultation on the impact of specific funding reductions, notably in the areas of social care and education, before any budget decision is made.

This was highlighted in the case of R (on the application of KE) v Bristol City Council [2018] EWHC 2103 (Admin). The Council failed to consult or prepare Impact Assessments in respect of proposed cuts in Special Educational Needs (SEN) provision on the assumption that this would only be necessary when the details of service changes were published.

The Claimants won a judicial review challenge against the Council’s subsequent decision to reduce funding for SEN provision by £5m overall for the next year. The reduction was held to be irrational as the Council failed to consult adequately, contrary to the inherent duty of enquiry under s.149 of the Equality Act 2010.

Failure to specifically consult also breached the duty under s.27 of the Children and Families Act 2014 (to have regard to the need to promote children’s welfare), and s.11 of the Children Act 2004 (to keep sufficiency of education provision under review). It further breached the common law duty of fairness.

Bristol argued that there was no duty to consult at the stage before the budget decision was made, but that consultation on its impact could be made at a later stage prior to the monies being specifically allocated. The Claimants successfully argued that the critical stage for consultation was prior to the big financial decisions being made, as at the later stage it would be a fait accompli.

It is not the law that a Council cannot make a decision to cut funding, especially considering significant cuts to local authority budgets, but in so doing it must take due regard, through effective consultation and consideration, of the impact before a final decision is made.

The judgment states that it is the nature, extent and impact of the specific decisions to be taken by the Council in the budget setting exercise that are determinative of whether a duty arises or whether it only arises at a later stage [para 89]. Where there is a ‘significant, sufficiently focused and rigid decision’ (as to cut or not to cut) to be made and where meaningful consultation is possible, the PSED must be engaged [para 103].

The Bristol case highlights the statutory duty of councils to consult effectively before taking ‘big’ budget cutting decisions. It underpins the intention of the Equality Act to ensure real influence from those protected under the Act can be generated. This is at the crucial stage of budget setting, not merely how to spend once those reduced budgets have been set.

Councils therefore only need to show that they have consulted in a specific and focused way on those proposals where the PSED is engaged. Management of problematic areas in corporate strategies must also be backed up by solid impact assessments to show authenticity and integrity of proposals.

Another landmark case - Hollow & Ors, R (On the Application Of) v Surrey County Council [2019] EWHC 618 - has a significant impact on local authorities’ budget setting consultation. It confirms that:

• Local authorities can set budgets that include anticipated savings in particular areas, without having to fully work up plans to support those savings.
• Local authorities can set annual budgets, which rely on the possibility that savings will be identified in certain areas, without it amounting a decision to cut spending or services.
• Where there is no concrete budgetary decision to cut services to a defined group, there is no duty to consult on the budget reduction.
• There is no need for local authorities to develop concrete proposals in relation to their ‘areas of focus’ for possible budget reductions nor assess the equality impacts before including them in the budget.
• Local authorities cannot be criticised for failing to seek further information about the impacts of savings where the way in which those savings would be achieved has not yet been worked out.

However, the judgment has no effect on the council’s duty to consult and carry out equality impact assessments in relation to specific plans to reduce services.

Geoff Wild is a Legal and Governance Consultant. He is celebrating his 40th anniversary as a local government lawyer.

See Geoff's previous bulletin for more information on consultation principles.