IntroductionCare and Support Statutory GuidanceWednesbury unreasonableness Making Fair Decisions guidance (ECHR)
5.1The statutory machinery is considered in detail below. The core provision is section 149 of the Equality Act 2010 which creates the public sector equality duty (PSED). The key provision is section 149(1):
Public sector equality duty
149(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.
5.2The aim of the PSED is to promote equality, by eliminating conduct such as discrimination and by promoting equality of opportunity and good relations between persons who share a ‘relevant protected characteristic’ and persons who do not.
5.3In the context of health and social care, the effect of the PSED is that, whenever they formulate policy, or make decisions in individual cases, public authority decision-makers must have due regard to the need to advance the equality of opportunity of disabled, elderly, young and otherwise vulnerable service users and to promote good relations between them and others. This imposes a positive duty to have due regard to the need to provide services that will place service users on a level footing with those who do not share their ‘relevant protected characteristic’.
5.4In an age of seemingly constant change, at the policy and individual level, largely driven by budgetary considerations, a particular effect of the PSED is to require decision-makers carefully to assess the risks that may arise from a proposed change, how they can be mitigated, what monitoring should take place and whether those risks can be justified, having due regard to the need to advance equality of opportunity between vulnerable service users and others. It is this aspect of the PSED that the case-law has focussed on, thus far.
5.5Accordingly (although the court will uphold decision-making which ‘
in substance’ integrates the core considerations underlying the PSED into its decision-making), local authorities and health bodies should:
1R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, (2013) 16 CCLR 479 at para 25.•advise decision-makers in writing of all the facets of the statutory duty in section 149 of the Equality Act 2010 (see para
5.14 below);
•ensure that the reports provided to decision-makers include a robust, critical assessment of the potential risks, as well as information about the mitigating steps proposed, alternative options, plans for monitoring and further decision-making if risks do materialise and the justification for the course proposed;
•advise decision-makers in writing that they are under a personal duty to discharge the PSED. Usually, this involves considering any equality impact assessment (EIA) in full, the responses to any consultation exercise and the information referred to in the preceding bullet points, in the light of the PSED;
•advise decision-makers in writing that they have to decide whether, treating the objectives in the PSED as important considerations, what is proposed is justifiable, or whether the plan should be modified or even abandoned.
5.6None of this means that local authorities and health bodies cannot make budget cuts, or take other decisions that are adverse to, or do not fully promote, the interests of vulnerable persons who possess a ‘relevant protected characteristic’, but the PSED operates as a restraining influence, or ever-present conscience. And, whilst the PSED is an obligation of process rather than end result, the process, diligently undertaken, should result in modified or even reversed outcomes in some cases.
5.7In principle, the PSED applies to decision-making in individual cases. That can make a real difference in other contexts beyond adult social care, where the needs of persons susceptible to inequality are not so well catered for within the relevant statutory machinery itself. In the social care context, however, case-law indicates that a social worker, and even a policy maker, may comply with the PSED simply by undertaking assessment and care planning that complies with the legislation and relevant guidance, on the basis that this already, in substance, incorporates the PSED.
2R (McDonald) v Kensington & Chelsea RLBC [2011] UKSC 33, (2011) 14 CCLR 341; R(AM) v Birmingham CC [2009] EWHC 688 (Admin), (2009) 12 CCLR 407; R(Rajput) v Waltham Forest LBC [2011] EWCA Civ 1577, (2012) 15 CCLR 147.That logic may apply now with greater force, given the over-arching duty in section 1 of the Care Act 2014 to promote every individual’s well-being, and the detailed provision for assessing and meeting needs in the Care Act 2014, the statutory instruments made under it and the
Care and Support Statutory Guidance, which have, themselves, been through a detailed impact assessment process.
3www.legislation.gov.uk/ukia/2014/407/pdfs/ukia_20140407_en.pdf.5.8Much of the case-law relating to the PSED process has been summarised recently by McCombe LJ on behalf of the Court of Appeal in
R (Bracking) v Secretary of State for Work and Pensions4[2013] EWCA Civ 1345, (2013) 16 CCLR 479. as follows:
25. Two lever arch files of authorities were placed before the court which included some thirteen cases in which relevant duties and the requirements placed on public authorities have been considered. Fortunately the principles were not significantly in dispute between the parties. I summarise the points identified, which are not, I think, different in substance from those summarised by the Judge in paragraph 32 of his judgment.
26.(1) As stated by Arden LJ in R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213; [2006] EWCA Civ 1293 at [274], equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation.
(2) An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements: R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWHC 199 (QB) (Stanley Burnton J (as he then was)).
(3) The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice: R (National Association of Health Stores) v Department of Health [2005] EWCA Civ 154 at [26–27] per Sedley LJ.
(4) A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a ‘rearguard action’, following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing [2008] EWHC 2062 (Admin) at [23–24].
(5) These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), as follows:
i) The public authority decision maker must be aware of the duty to have ‘due regard’ to the relevant matters;
ii) The duty must be fulfilled before and at the time when a particular policy is being considered;
iii) The duty must be ‘exercised in substance, with rigour, and with an open mind’. It is not a question of ‘ticking boxes’; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument;
iv) The duty is non-delegable; and
v) Is a continuing one.
vi) It is good practice for a decision maker to keep records demonstrating consideration of the duty.
(6) ‘[G]eneral regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria.’ (per Davis J (as he then was) in R (Meany) v Harlow DC [2009] EWHC 559 (Admin) at [84], approved in this court in R (Bailey) v Brent LBC [2011] EWCA Civ 1586 at [74–75].)
(7) Officials reporting to or advising Ministers/other public authority decision makers, on matters material to the discharge of the duty, must not merely tell the Minister/decision maker what he/she wants to hear but they have to be ‘rigorous in both enquiring and reporting to them’: R (Domb) v Hammersmith & Fulham LBC [2009] EWCA Civ 941 at [79] per Sedley LJ.
(8) Finally, and with respect, it is I think, helpful to recall passages from the judgment of my Lord, Elias LJ, in R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) (Divisional Court) as follows:
(i) At paragraphs [77–78]
‘[77] Contrary to a submission advanced by Ms Mountfield, I do not accept that this means that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then as Dyson LJ in Baker (para [34]) made clear, it is for the decision maker to decide how much weight should be given to the various factors informing the decision.
[78] The concept of ‘due regard’ requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors. If Ms Mountfield’s submissions on this point were correct, it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making.’
(ii) At paragraphs [89–90]
‘[89] It is also alleged that the PSED in this case involves a duty of inquiry. The submission is that the combination of the principles in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 and the duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it and this will frequently mean than some further consultation with appropriate groups is required. Ms Mountfield referred to the following passage from the judgment of Aikens LJ in Brown (para [85]):
‘… the public authority concerned will, in our view, have to have due regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled persons’ disabilities in the context of the particular function under consideration.’
[90] I respectfully agree …’
…
60. In the end, drawing together the principles and the rival arguments, it seems to me that the 2010 Act imposes a heavy burden upon public authorities in discharging the PSED and in ensuring that there is evidence available, if necessary, to demonstrate that discharge. It seems to have been the intention of Parliament that these considerations of equality of opportunity (where they arise) are now to be placed at the centre of formulation of policy by all public authorities, side by side with all other pressing circumstances of whatever magnitude.
5.8.1The Supreme Court has expressed provisional support for this analysis,
5Hotak, Kanu and Johnson v Southwark LBC and Solihull MBC [2015] UKSC 30, [2015] 2 WLR 1341, at para 173. highlighting aspects that appeared to it to be especially pertinent:
73. The equality duty has been the subject of a number of valuable judgments in the Court of Appeal. Explanations of what the duty involves have been given by Dyson LJ (in relation to the equivalent provision in the Race Relations Act 1976 ) in Baker v Secretary of State for Communities and Local Government (Equality and Human Rights Commission intervening) [2009] PTSR 809, paras 30–31, Wilson LJ (in relation to section 49A of the Disability Discrimination Act 1995, as inserted by section 3 of the Disability Discrimination Act 2005, the predecessor of section 149 of the 2010 Act) in Pieretti v Enfield London Borough Council [2011] PTSR 565, paras 28 and 32, and McCombe LJ in Bracking v Secretary of State for Work and Pensions [2014] Eq LR 60, para 25 which pulls together various dicta, most notably those of Elias LJ in R (Hurley) v Secretary of State for Business, Innovation and Skills [2012] HRLR 13, paras 77–78, 89. I do not propose to quote those passages in extenso: they are not challenged in these appeals, and in my view, at least as at present advised, rightly so.
74. As Dyson LJ emphasised in the Baker case [2009] PTSR 809, para 31, the equality duty is ‘not a duty to achieve a result’, but a duty ‘to have due regard to the need’ to achieve the goals identified in paragraphs (a) to (c) of section 149(1) of the 2010 Act. Wilson LJ explained that the Parliamentary intention behind section 149 was that there should ‘be a culture of greater awareness of the existence and legal consequences of disability’: Pieretti v Enfield London Borough Council [2011] PTSR 565, para 28. He went on to say in para 33 that the extent of the ‘regard’ which must be had to the six aspects of the duty (now in subsections (1) and (3) of section 149 of the 2010 Act) must be what is ‘appropriate in all the circumstances’. Lord Clarke of Stone-cum-Ebony JSC suggested in argument that this was not a particularly helpful guide and I agree with him. However, in the light of the word “due” in section 149(1), I do not think it is possible to be more precise or prescriptive, given that the weight and extent of the duty are highly fact-sensitive and dependent on individual judgment.
75. As was made clear in a passage quoted in the Bracking case [2014] Eq LR 60 , para 60, the duty ‘must be exercised in “substance, with rigour, and with an open mind”’: per Aikens LJ in R (Brown) v Secretary of State for Work and Pensions (Equality and Human Rights Commission intervening) [2009] PTSR 1506, para 92. And, as Elias LJ said in the Hurley case [2012] HRLR 13, paras 77–78 it is for the decision-maker to determine how much weight to give to the duty: the court simply has to be satisfied that ‘there has been a rigorous consideration of the duty’. Provided that there has been ‘a proper and conscientious focus on the statutory criteria’, he said ‘the court cannot interfere … simply because it would have given greater weight to the equality implications of the decision’.
5.9Laing J has added a gloss to paragraph 60 of
Bracking as follows:
6In R (DAT) v West Berkshire Council [2016] EWHC 1876 (Admin), (2016) 19 CCLR 362.39. In paragraph 60 of Bracking McCombe LJ said, ‘In the end, drawing together the principles and the rival arguments, it seems to me that section 149 imposes a heavy burden on public authorities, in discharging the PSED and in ensuring that there is the evidence available, if necessary, to demonstrate their discharge. It seems to me to have been the intention of Parliament that these considerations of equality of opportunity (where they arise) are now to be placed at the centre of formulation of policy by all public authorities, side by side with all other pressing circumstances of whatever magnitude’.
40. Paragraph 60 of Bracking recognises that there may be circumstances in which the evidence it refers to is not necessary, and that there may be circumstances in which considerations of equality do not arise. These are important provisos. Nonetheless, it seems to me, also, that if and in so far as paragraph 60 suggests that public authorities must give equal weight to equality considerations and to other ‘pressing circumstances of whatever magnitude’ it is not supported by the language of section 149, and is inconsistent both with the passage from Hurley which is cited with apparent approval in paragraph 26(8) of Bracking, and with Baker. I consider, therefore, that paragraph 60 of Bracking cannot have been intended to have that effect.
5.10It is also notable that at para 89 of
R (Staff Side of the Police Negotiating Board) v Secretary of State for Work and Pensions,
7[2011] EWHC 3175 (Admin).Elias LJ, McCombe J and Sales J concluded that, where the Secretary of State had not personally considered the PSED, it was sufficient that her department had done so, when making the recommendation that she had accepted.
5.11As the cases show:
•whether or not there has been a breach of the PSED is a highly fact-specific, evaluative question. The principles are important; excessive citation of authority is deprecated;
8R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, (2013) 16 CCLR 479 at para 25; R (DAT) v West Berkshire Council [2016] EWHC 1876 (Admin), (2016) 19 CCLR 362 at para 41. •an unduly forensic analysis may distract from asking whether in substance the PSED has been discharged and may in some cases amount to an inappropriate attack on the merits of the underlying decision;
9R (Bailey) v Brent LBC [2011] EWCA Civ 1586 at para 102; R (Greenwich Community Law Centre) v Greenwich LBC [2012] EWCA Civ 496 at para 20; R (Copson) v Dorset Healthcare University NHS Foundation Trust [2013] EWHC 732 (Admin) at para 57(4); R (MA) v Secretary of State for Work and Pensions [2013] EWHC 2213 (QB) at paras 72–74, 86; R (MA) v Secretary of State for Work and Pensions [2014] EWCA Civ 13, [2014] PTSR 594 at paras 85–92; R (Aspinall and others) v Secretary of State for Work and Pensions [2014] EWHC 4134 (Admin) at paras 16–24. •in some contexts it may be important to focus on the different strands of the PSED but in other contexts there may be no practical difference between them;
10R (MA) v Secretary of State for Work and Pensions [2014] EWCA Civ 13, [2014] PTSR 584 at para 91. •as is the case with consultation, a local authority is entitled to reach a macro budgetary decision on the basis that implementation will be subject to discharge of the PSED;
11JG and MB v Lancashire CC [2011] EWHC 2295 (Admin), (2011) 14 CCLR 629 at paras 43–45. •whilst there is a ‘duty of inquiry’ implicit in the duty to have ‘due regard’ the courts do not appear to have defined that duty in terms that extend it beyond the usual
Tameside duty of undertaking a level and manner of enquiry that satisfies the
Wednesbury test;
12R (Hurley and Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) at para 89. •provided rigorous consideration has been given to the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, it is for the decision-maker to decide how much weight should be given to the various factors informing the decision (subject to
Wednesbury);
13R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), [2009] PTSR 1506 at para 82; R (Hurley and Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) at paras 77–78; R (DAT) v West Berkshire Council [2016] EWHC 1876 (Admin), (2016) 19 CCLR 362 at paras 39–41. •where the future is uncertain it can be sufficient to make a rational judgment about the future and then monitor the outcome with a view to making necessary adjustments.
14R (Unison) v Lord Chancellor [2015] EWCA Civ 935, [2016] ICR 1 at para 121. 5.13The Senior Courts Act 1981 now provides, at section 31(2A), that the High Court must refuse to grant relief ‘if it appears to the court to be highlylikely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred’, unless there is an ‘exceptional public interest’ in granting relief. Section 31(3C) imposes a similar restriction on the grant of permission to apply for judicial review. It remains to be seen
16The Bingham Centre for the Rule of Law, the Public Law Project and Justice have suggested that this duty will only arise exceptionally: Judicial Review and the Rule of Law: An Introduction to the Criminal Justice and Courts Act 2015, Part 4 at http://www.biicl.org/documents/767_judicial_review_and_the_rule_of_law_-_final_for_web_19_oct_2015.pdf. However, in R (Hawke) v Secretary of State for Justice [2015] EWHC 3599 (Admin), as a result of section 31(2A) of the Senior Courts Act 1981 Holman J declined to grant a declaration that the Secretary of State for Justice was in breach of the PSED (under section 149 of the Equality Act 2010); instead, he indicated that his judgment was a ‘declaratory judgment’ , following the example of Blake J in R (Logan) v Havering LBC [2015] EWHC 3193 (Admin). See also R (Enfield LBC) v Secretary of State for Transport [2015] EWHC 3758 (Admin) at para 106 (sometimes a witness statement is required from the public authority to establish that the test is met) and R (HA) v The Governing Body of Hampstead School [2016] EWHC 278 (Admin) at para 33 (these provisions may relate simply to ‘technical flaws’). In R (DAT) v West Berkshire Council [2016] EWHC 1876 (Admin), (2016) 19 CCLR 362, Laing J found it hard to be satisfied that there was no chance of the council reaching a different decision on a reconsideration in case involving highly vulnerable children and, in any event, considered that in such a case there was an exceptional public interest in granting relief.how the court will approach this restriction on its traditional function but the provision is potentially relevant, in particular, in cases where the claimant submits that a decision is unlawful owing to the local authority’s failure to discharge the PSED.