Statutory machineryCare and Support Statutory GuidanceEquality Act 2010 Technical Guidance on the PSED Equality Act 2010 Technical Guidance on the PSED Equality Act 2010 Technical Guidance on the PSED Essential Guide to the PSEDServices, Public Functions and Associations Statutory Code of Practice
5.14Many cases refer to the disability equality duty (DED), at section 49A of the Disability Discrimination Act (DDA) 1995. The critical provisions are now to be found in Chapter 1 of Part 11 of the Equality Act 2010, where section 149 is central (although one needs to go back to Chapter 1 of Part 2 for extended definitions of the various ‘protected characteristics’ and to Chapter 2 of Part 2 for definitions of different types of discrimination and other forms of prohibited conduct).
5.15Section 149 provides, in full, as follows:
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.
(2)A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).
(3)Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to–
(a)remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b)take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c)encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
(4)The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities.
(5)Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to–
(a)tackle prejudice, and
(b)promote understanding.
(6)Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.
(7)The relevant protected characteristics are–
age;
disability;
genderreassignment;
pregnancyand maternity;
race;
religionor belief;
sex;
sexualorientation.
(8)A reference to conduct that is prohibited by or under this Act includes a reference to–
(a)a breach of an equality clause or rule;
(b)a breach of a non-discrimination rule.
(9)Schedule 18 (exceptions) has effect.
Who is under the PSED and when?
5.16The duty arises whenever a ‘public authority’ exercises its ‘functions’ (section 149(1)) and whenever a body that is not a ‘public authority’ exercises a ‘public function’ (section 149(2)).
As far as concerns public authorities:
•a ‘public authority’ includes a local authority
1The complete list, in Schedule 19, includes Ministers of the Crown, most government departments, most NHS bodies and many regulatory bodies.(see section 150 and Schedule 19);
•a local authority’s ‘functions’ are ‘all the duties and powers of a local authority; the sum total of the activities Parliament has entrusted to it. Those activities are its functions’:
Hazell v Hammersmith & Fulham LBC;
2[1992] 2 AC 1 at 29F. •in the social care context, the most obvious functions to which the PSED applies are the formulation of policy and internal guidance and decisions affecting numbers of people (for example, to close a care home or day centre); when discharging functions of that kind, local authorities must discharge the PSED;
•when making macro budgetary or policy decisions local authorities may undertake a relatively broad, high-level discharge of the PSED, subject to more focussed consideration later on before specific implementing measures are taken;
3JG and MB v Lancashire CC [2011] EWHC 2295 (Admin), (2011) 14 CCLR 629 paras 43–45. •whereas, in principle, the PSED also applies to decision-making in the case of individuals, social workers who assess needs and undertake care planning in accordance with the Care Act 2014, the statutory instruments and the
Care and Support Statutory Guidance would not usually have to do anything more than that, lawfully to assess needs and undertake care planning.
4R (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 5.17As far as concerns bodies that ‘exercise public functions’:
•section 150(5) provides that ‘A public function is a function that is a function of a public nature for the purposes of the Human Rights Act 1998’;
•section 73 of the Care Act 2014 legislates that a private or social sector provider is exercising a function of a public nature if, on the basis of payments or arrangements made by a local authority, it provides care and support to an adult, or support to a carer, (i) in the course of providing personal care where the adult is living; or (ii) residential accommodation together with nursing or personal care.
It is important that the PSED is discharged as part of the decision-making process but the court will probably not quash a decision when a later assessment, undertaken in good faith, demonstrates that it would be pointless to grant relief.
5R (West Berkshire DC) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441, [2016] PTSR 982 at paras 86–87.Who are the beneficiaries of the PSED?
5.18There are two, slightly different, groups:
•the first part of the Equality Act 2010, and section 149(1)(a) (both concerned with ‘prohibited conduct’), apply to all persons who have a ‘protected characteristic’, as defined at sections 4–12 of the Equality Act 2010 (age, disability, gender re-assignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation; however, they only apply to persons who have the protected characteristic of marriage or civil partnership in relation to work issues because the parts of the Equality Act 2010 covering services and public functions, premises and education do not apply to those characteristics
6See Equality Act 2010 ss28(1)(a), 32(1)(b), 84(1)(b), 90.);
•section 149(1)(b) and (c), and following, apply to all persons who have a ‘relevant protected characteristic’, as defined at section 149(7) – that is, any of the ‘protected characteristics’ at sections 4–12 of the Equality Act 2010, aside from marriage and civil partnership status.
What is ‘due regard’?
5.19The duty to ‘have due regard’ to the needs identified in section 149(1) can be understood as meaning that the public authority must give such consideration to those needs as is appropriate.
5.20Thus, the greater the risk that a policy or decision will affect one or more persons with a ‘relevant protected characteristic’, the more careful and searching the public body must be in its scrutiny of what that impact may entail, how it may be mitigated and monitored and on what basis it may be justified: greater scrutiny is required when deciding to close care homes or day centres, than when deciding what stationery to buy.
5.21The judgment of McCombe LJ in the
Bracking case, set out above at para
5.8, explains the PSED with particular reference to the duty to have ‘due regard’. As McCombe LJ explains, whilst the question of what weight should be attributed to relevant matters is ultimately a matter for the local authority, ‘the concept of ‘due regard’ requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria’.
5.22Having said that, the statutory criteria, as supplemented by the statutory instruments, guidance, codes of practice and technical guidance, comprise an abundance of relevant factors so plentiful that, superimposed on a complex factual matrix, generally results in any half-decent lawyer being able to point to one or more considerations that a local authority has failed explicitly, or even implicitly, to deal with. The courts have discouraged an unduly forensic analysis and, without using these words, intimated sometimes that relief might only be granted when something has gone seriously wrong, so that the local authority has not in substance given proper and conscientious consideration to the more important issues in the case.
7R (Bailey) v Brent LBC [2011] EWCA Civ 1586, [2012] BLGR 530 at para 102; R (Hurley) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin), [2012] HRLR 13 at para 87; R (Zaccheus 2000 Trust) v Secretary of State for Work and Pensions [2013] EWCA Civ 1202, [2013] PTSR 1427 at paras 60 and 64; R (Unison) v Lord Chancellor [2015] EWCA Civ 935, [2016] ICR 1 at para 116; R (CPAG) v Secretary of State for Work and Pensions [2011] EWHC 2616 (Admin) at paras 57, 76 and 79.In addition, the courts have articulated a series of limiting principles (see para
5.11 above) and the Senior Courts Act 1981 has been restrictively revised (see para
5.13 above). The context and scale of any potential impact seem to be powerful considerations, in this regard.
The first ‘need’
5.23The first need is to have due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited by or under the Equality Act 2010 (section 149(1)(a)).
5.24In practice, this means that a local authority must satisfy itself that what it proposes to do:
•does not amount to discrimination that is made unlawful by Chapter 2 of Part 1, in particular ‘direct discrimination’ (section 13), ‘disability discrimination’ (section 15) or ‘indirect discrimination’ (section 19);
•does not involve a failure to make ‘reasonable adjustments’ (section 20);
•does not involve positive action in circumstances where that is not permitted (section 159); and
The second ‘need’
5.25This is the need to advance equality of opportunity between persons who share a ‘relevant protected characteristic’ and those who do not (section 149(1)(b)).
5.26This need is particularly relevant in the social care context, in that many adults and children who share a ‘relevant protected characteristic’ are under-represented in certain activities and do not have the same opportunities to enjoy a fulfilling life, as others do, so that positive action is needed if that level of inequality is to be redressed or mitigated.
5.27The second ‘need’, at section 149(1)(b), is expanded upon in section 149(3) and (4) as follows:
(3)Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to–
(a)remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b)take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c)encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
(4)The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities.
5.29The different needs referred to in section 149(3)(b) include:
•needs that are intrinsic to the ‘relevant protected characteristic’, in the sense that a young disabled person may need different services, in order to participate in education, training or work, than an able-bodied person (this is also covered by section 149(4)); and
•‘social needs’ that have arisen in consequence of treatment by society, in the sense that members of a particular group may have been discouraged from taking up certain opportunities.
5.30The reference to ‘public life’ and other activities, in section 149(3)(c) is a reference to employment, professions, sporting and cultural activities, voting, membership of bodies such as school councils and residents’ associations and being appointed to public office. ‘Participation’ requires consideration to be given to the overall numbers and, also, to whether persons with a ‘relevant protected characteristic’ are involved in the running and decision-making.
The third ‘need’
5.31The third need is to foster good relations between persons who share a ‘relevant protected characteristic’ and those who do not (section 149(1)(c)).
5.32That is expanded upon in section 149(5):
(5)Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to–
(a)tackle prejudice, and
(b)promote understanding.
Positive action
When is positive action lawful?
It will be lawful for a relevant body to take positive action where it reasonably thinks that people who share a protected characteristic (section 158):
a) experience a disadvantage connected to that characteristic; or
b) have needs that are different from the needs of persons who do not share that characteristic; or
c) have disproportionately low participation in an activity compared to those who do not share that protected characteristic.
Action may be taken when any one or all of these conditions exist. Sometimes the conditions will overlap – for example, people sharing a protected characteristic may be at a disadvantage which may also give rise to a different need or may be reflected in their low level of participation in particular activities.
What action is lawful?
Where the conditions above apply, the relevant body may take any action which is proportionate to meet the aims stated in the Act. Those aims are:
•enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage
•meeting those needs, or
•enabling or encouraging persons who share the protected characteristic to participate in that activity.
Positive action is not the same as positive discrimination, which is unlawful. The difference between the two is explained in the Code of Practice on Services, Public Functions and Associations.
Complying with the PSED in practice
5.1 Chapter 2 explains that to ‘have due regard’ to the three aims in the general equality duty a relevant body must consciously consider the need to do the things set out in the general equality duty in exercising any of its functions which are subject to the duty.
5.2 A body subject to the duty will find the principles in section 2.21 of Chapter 2 useful in deciding what action it needs to take to ensure it is complying with the general equality duty on a continuing basis. In summary those principles are:
•knowledge of the duty
•timeliness
•real consideration
•sufficient information
•non-delegable
•review, and
•evidence of consideration.
5.3 Listed authorities will need to ensure that they also comply with the mandatory steps set out in the specific duty regulations, covered in Chapter 6 of this guidance. The specific duties are intended to enable better performance of the general equality duty.
5.4 In order to decide what action to take a body subject to the duty could ask itself a series of questions. The sections in this chapter suggest how these questions could be answered:
1. How will it assess the relevance of the duty to the functions it exercises?
See: Identifying the relevance of the general equality duty to the functions of a body subject to the duty (paras 5.5–5.14)
2. How will it gather the information it needs to enable it to comply with the duty?
See: Ensuring a sound evidence base (paras 5.15–5.34)
3. How will it ensure that those exercising those functions understand their obligations under the duty?4. How will it ensure that the duty is complied with both before and during any decision-making process?5. How will it integrate rigorous and substantive consideration of the duty into the operation of its functions and its decision-making processes?
See: Ensuring due regard in decision making (paras 5.35–5.50)
6. How will it show it has complied with the duty?
See: Providing evidence of compliance (paras 5.51–52).
Listed authorities should also refer to Chapter 6.7. How will it build compliance with the duty into its commissioning or procurement/dealing with third parties?
See: Meeting the duty in relation to other bodies (paras 5.53–5.64)
8. What review mechanisms will it put in place to ensure that compliance with the duty is continuing?
See: Ensuring a sound evidence base (at paras 5.15–5.18).
Specific duties
5.36In England, a Minister of the Crown may impose specific duties on the public authorities listed in Part 1 of Schedule 19 to the Equality Act 2010. The list includes Ministers of the Crown, most government departments, most NHS bodies, the Care Quality Commission (CQC), Monitor and local authorities. (There is a similar list for Welsh public authorities, in Part 2 of Schedule 19).
5.37Specific duties are imposed by the Equality Act 2010 (Disability) Regulations 2010,
13SI No 2128.which require the listed public authorities to:
•publish information to demonstrate their compliance with the PSED (regulation 3);
•publish one or more equality objectives which it thinks it should achieve to do any of the things mentioned in the PSED (regulation 4).
Enforcement
5.39The Equality and Human Rights Commission (EHRC) has a range of enforcement powers, under sections 8, 10 and 32 of the Equality Act 2006, that it may exercise in relation to (i) the PSED, (ii) the specific duties.
5.40Any individual with an interest in the matter may make an application for judicial review, on the basis that local authority decision-making is undermined by a failure to discharge the PSED. However, a judicial review claim cannot be made in respect of the specific duties, as these can only be enforced by the EHRC.
Statutory instruments
5.41Of the statutory instruments made under Equality Act 2010, the most important are:
•the Equality Act 2010 (Disability) Regulations 2010
15SI No 2128.(these contain provisions expanding on when a person is and is not disabled (etc), provisions about auxiliary aids or services and reasonable adjustments and other matters);
•the Equality Act 2010 (Specific Duties) Regulations 2011 (see above).
16SI No 2260. Guidance, codes and technical guidance
5.42There is guidance, statutory codes of practice and technical guidance: