Reporting for duty

How can local authorities and other bodies meet the requirements of the public sector equality duty? Sam Madge-Wyld looks at the lessons to be learned from the key cases.

On April 5, 2011, s.149, Equality Act 2010 came into force. It repealed, but expanded upon, s.49A, Disability Discrimination Act 1995, s.71, Race Relations Act 1976 and s.76A, Sex Discrimination Act 1975.

Section 149 provides that a public authority must, in the exercise of its functions, have due regard to the need to:

1. Eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the 2010 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: s.149(1).

Advancing equality of opportunity between persons with and without a protected characteristic means:

• Removing or minimising disadvantages suffered by persons with a protected characteristic.
• Taking steps to meet the needs of persons with a relevant protected characteristic.
• Taking account of a person’s disabilities.
• Encouraging persons with a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low: ss.149(3),(4).

Fostering good relations means tackling prejudice and promoting understanding: s.149(5).

Compliance with the duty may involve treating some persons more favourably than others (but not so as to unlawfully discriminate against another protected characteristic under the Act): s.149(6).

The protected characteristics

The protected characteristics are:

1. Age (i.e. a person who belongs to a group which is defined by reference to their age): s.5.
2. Disability (i.e. a person who has a physical or mental impairment and the impairment has a substantial and long-term adverse effect on that person’s ability to carry out day to day activities): s.6.
3. Gender reassignment (i.e. a person who has, or is proposing to, reassign their sex by making physiological or other changes): s.7.
4. Pregnancy and maternity (which is not defined by the Act).
5. Race (i.e. a person who belongs to a group defined by their race, which includes their colour, nationality or ethnic or national origins): s.9.
6. Religion or belief (i.e. a person who holds a religious or philosophical belief): s.10.
7. Sex (i.e. a man or a woman): s.11.
8. Sexual orientation (i.e. a person who is attracted to a person of the same sex, the opposite sex or both): s.12

When does the duty apply?

The duty applies whenever a public authority exercises a function. It has been suggested that that the duty applies to all decisions taken by public authorities: R (W) v Birmingham City Council [2011] EWHC 1147 (Admin). However, it is open to question whether every decision by a local authority is a “function” for the purposes of s.149. In the field of local government a function has been restricted to mean the exercise of a statutory duty or discretion, but not something that is calculated to facilitate the discharge of a function (see Hazell v Hammersmith & Fulham LBC [1992] 2 AC 1).

What do public authorities have to do?

The broad purpose of the public sector equality duty is to “integrate considerations of equality and good relations into the day-to-day business of public authorities.... [It] requires organisations to consider how they could positively contribute towards the advancement of equality and good relations. 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.”

However, the duty is not to achieve those goals but rather to have considered the desire that those goals are achieved before making a decision.

Broadly speaking the duty requires public authorities when making decisions to:

• consider, from the outset, if a decision or policy can advance equality of opportunity between the protected groups, eliminate harassment and discrimination etc; and/or
• assess the impact of any decision on persons from the protected groups and, if the impact is likely to be adverse, analyse how it can be mitigated.

What is “due regard”?

Due regard means the regard that is appropriate in all the circumstances: R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin); [2009] P.T.S.R. 1506. Context is therefore everything. A decision which is incapable of advancing equality of opportunity and which will not adversely affect anybody with a protected characteristic is unlikely to require the decision maker to do anymore than assure themselves of this fact: Pieretti v Enfield LBC [2010] EWCA Civ 1104; [2011] HLR 3.

Conversely, where a decision is likely to adversely affect many people with protected characteristics the due regard necessary is high: R (Hajrula) v London Councils [2011] EWHC 448 (Admin).

What amounts to due regard in the context of formulating policy?

The duty applies to the formulation of policy as much as it does to informing a final a decision. Thus, the failure to have due regard in the formulation of a policy cannot be subsequently rectified by analysing the impact the proposals will have after the proposals have been finalised: R (Rahman) v Birmingham City Council [2011] EWHC 944 (Admin).

In practice this means that where a policy is being drafted the duty requires an authority to consider whether it could be framed so as achieve the goals set out in s.149 and in a way that minimises adverse impact on people with protected characteristics. It does not, however, require the authority to formulate policies which achieve those goals.

The duty also requires the involvement of persons with protected characteristics – if they are to be affected – in the formulation of policy. It is unclear if this will always require such people to be formally consulted. However, it has been held that where the adverse impact was likely to be considerable the failure to lawfully consult amounted to a failure to have due regard: see R (W) v Birmingham CC and R (JM & NT) v Isle of Wight Council [2011] EWHC 2911 (Admin).

However, there is not a requirement to analyse the impact of the proposals in any detail – i.e. beyond acknowledging that some groups will be affected – until the policy has been finalised: R (Fawcett Society) v Chancellor of the Exchequer [2011] EWHC 3522 (Admin). Thus, an authority is not required to analyse the impact of their proposed budget cuts until after they have decided how the cuts will be implemented through specific policies: R (JG) v Lancashire County Council [2011] EWHC 2295 (Admin).

What does due regard require once a policy has been finalised?

This will ultimately depend upon the impact the policy is likely to have on people with protected characteristics. Where it is likely that there will be adverse impact the duty will require an analysis of what that impact will be and how it might be mitigated; the greater the impact the greater the need to consider ways to mitigate it: R (W) v Birmingham CC.

It is not necessary for an impact assessment to consider every possible way the impact could be negated: R (Domb) v Hammersmith & Fulham [2009] EWCA Civ 941. There is not a general rule that an authority must consider retaining the status quo: R (Tiller) v East Sussex County Council, unreported, June 29, 2011. Although in circumstances where there is no other way of mitigating the impact, the duty may require this: Rahman. If a proposal is put forward as being capable of mitigating the adverse impact it must be more than aspirational and be supported by evidence that it will mitigate the impact: Rahman.

The analysis must be rigorous and conducted with an open mind and must be more than just a tick-box exercise: Domb. The analysis, which need not be in any particular form or make express reference to the duty itself, must contain accurate information and not simply tell the decision maker what he wants to hear, e.g. politically unpalatable outcomes must be drawn to the decision maker’s attention: R (W) v Birmingham CC.

The duty continues to apply after a decision has been taken and therefore requires public authorities to review policy decisions to ascertain if they are achieving the objective of advancing equality of opportunity or if they are adversely affecting certain groups: R (W) v Birmingham CC.

What amounts to due regard in the context of discharging a statutory duty?

If, in the context of discharging a statutory duty, a decision maker is aware of the fact that the person affected by the decision has a protected characteristic and there is evidence of the possibility that the applicant’s protected characteristic might be relevant to how the duty is to be discharged, then further inquiries must be carried out so that the decision-maker can consider whether the applicant’s protected characteristic is relevant to the decision: Pieretti.

However, if an authority is discharging a function under a statute which expressly directs their attention to the needs of persons with protected characteristics, it is likely to be superfluous to make express reference to the duty and would be absurd to infer from an omission to do so a failure on the authority's part to have due regard to the duty: R (McDonald) v Royal Borough of Kensington & Chelsea [2011] UKSC 33.

Who is to have due regard?

In all cases the person ultimately responsible for making the decision is subject to the duty. It is not enough for the people responsible for formulating the policy to have had due regard: Rahman. There is, however, no requirement for the decision maker to have considered an equality impact assessment (if one has been prepared); all that is required is that the essence of the assessment is communicated to the decision maker: Domb.

For the reasons given above, the duty also applies to whoever is responsible for formulating a policy.

Can a decision be taken if the adverse impact cannot be mitigated?

It is not the case that an authority is precluded from taking a decision if, having had due regard, they have concluded that the adverse impact on a person (or a group) with a protected characteristic cannot be mitigated. Once an authority has had due regard it is entitled, subject to an irrationality challenge, to give whatever weight it seeks fit to the impact the policy will have and the other countervailing factors which point towards making a decision which does not achieve, or even undermines, the goals in s.149: Brown.

Conclusion

In conclusion:

• What amounts to due regard depends on the context of the decision.
• Where evidence suggests that a decision is unlikely to impact a person with a protected characteristic the duty requires no more than the decision maker to be sure of this.
• Where an authority discharges their functions under a statute which expressly requires them to consider the needs of persons with protected characteristics the duty is likely to be superfluous.
• The duty is continuous and requires due regard in the formulation of policy, in the decision making process and persists after a final decision has been taken.
• There is no obligation to analyse in any detail the impact of a decision until the detail of a policy has been finalised.
• In assessing the impact, there is a further obligation to consider how the impact may be mitigated.
• A decision maker cannot delegate their duty to have due regard.
• It is ultimately for the authority to decide whether to take a decision even if having had due regard they are satisfied that the objectives in s.149 will not be achieved or undermined.

Sam Madge-Wyld is a barrister at Arden Chambers. He can be contacted on 020 7242 4244 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..