Under the equality duty, public authorities must have 'due regard' to the need to eliminate unlawful discrimination, harassment and victimisation as well as advance equality of opportunity and foster good relations between people who share a protected characteristic and those who do not. Assessing the impact on equality of proposed changes to policies, procedures and practices is one of the key ways in which public authorities can demonstrate that they have had 'due regard'. A number of court cases show the link between 'due regard' and assessing the impact on equality.
R (Brown) v Secretary of State for Work & Pensions [2008] EWHC 3158 (Admin)
Mrs Brown lived with her husband in Sussex. Mrs Brown was disabled and she could not stand or walk for long periods without acute discomfort and pain. In late 2007, Mrs Brown discovered that there was a proposal to shut down a number of post offices in Sussex, including the branch in her village. Because of her disability, this would make it very difficult to access another post office further away.
In a legal challenge to the decision about the Post Office closures, Mrs Brown claimed that there had been a failure to comply with the Disability Discrimination Act 2005. Of particular concern was the fact that there had been a failure to pay 'due regard' to their equality duties evidenced by the lack of a disability equality impact assessment of the Post Office closure proposal.
The Court stated that rather than carrying out a formal equality impact assessment, the Authority had to demonstrate that it had paid 'due regard' to its equality obligations. In other words, the Court held that public authorities did have to assess the impact their proposed policies had on equality but that there was no prescriptive way to do so. Consideration could be shown in a number of other ways, for example in the form of various reports, including research/data gathered from fieldwork and consultations.
The Court also set out some general principles about the steps a public authority should take to comply with the duty to give 'due regard' to the relevant equality needs. These include that:
- When a public authority makes decisions that do or might affect an equality group, it must be made aware of its duty to have due regard to the equality goals in the equality duties. An incomplete or erroneous appreciation of these duties will mean that 'due regard' has not been paid.
- The 'due regard' must be exercised with rigour and with an open mind. It is not a question of 'ticking boxes'. The duty has to be integrated within the discharge of the public functions of the authority. It involves a conscious and deliberate approach to policy-making and needs to be thorough enough to show that 'due regard' has been paid before any decision is made.
- If the public authority has not specifically mentioned the relevant general equality duty when carrying out a particular function, this does not mean that the duty to have 'due regard' has not been performed. However, it is good practice for the policy itself or the public authority to make reference to the duty and any code or other non-statutory guidance. This will reduce the chance of someone successfully arguing that 'due regard' has not been paid to equality considerations. This is also likely to enable a public authority to ensure that factors relevant to equality are taken into account when developing a policy.
- It is good practice for public authorities to keep an adequate record showing that they had actually considered their equality duties and pondered relevant questions. Appropriate record-keeping encourages transparency and will discipline those carrying out the relevant function to undertake their disability equality duties conscientiously. If records are not kept, it will be difficult, evidentially, for a public authority to persuade a court that it has fulfilled its general equality duty.
Meany & Ors, R (on the application of) v Harlow District Council [2009] EWHC 559 (Admin) (09 March 2009)
The Harlow District Council published an invitation to tender for its welfare rights and advice services for a lower budget than it had previously paid. Services had previously been provided to the Council by a non profit making company however, the Council's decision meant that the company's contract would cease. Consequently the company would need to make some staff redundant. In addition, if the Council spent less on this service, this would inevitably have a significant impact on the level of welfare rights advice and services offered in Harlow. Mrs Meaney was a resident of Harlow and a service user and she claimed that the Council had failed to comply with its legal obligations by failing to equality impact assess its decision about tendering services.
The Court made a clear statement about the importance of 'due regard'. In acknowledging that an EIA wasn't carried out, the Court stated that there is no duty for a public authority to carry out a formal equality impact assessment but that it has to demonstrate that it has consciously directed its mind to its equality obligations before taking decision to implement a proposed policy, procedure or practice.
The Court stated that as long as the public authority paid 'due regard' to its statutory duties it could consider other countervailing factors in reaching decisions, such as the fact that all cuts in community services would inevitably have an impact on the disadvantaged; or that the service had been relatively protected from prior cuts unlike other aspects of discretionary services. Having due regard to equality considerations has to be a precondition. Furthermore, the Court endorsed the view that general regard to issues of equality is not the same as having specific regard, by way of a conscious approach. The Court found that in this case there was no due regard. In so deciding, the Court emphasised the importance of compliance with the race equality duty not as a rear guard action after a decision has been made, but as an essential preliminary to any such decision being made.
R (Chavda and others) v London Borough of Harrow [2007] EWHC 3064 (Admin)
To make savings in light of budget deficits, the London Borough of Harrow proposed to restrict the provision of adult care services to people with critical needs only.
A consultation and an equality impact assessment were carried out regarding the proposed change. During this process, concerns were identified that the proposed decision would have a differential impact on particular groups of disabled people.
A report on the issues, including analyses of the results of the consultation process and the equality impact assessment, was then considered at a Cabinet meeting, where the Council decided to effect the proposed change. However, the Disability Equality Duty, and the specific obligations it places on the Council, was not explicitly brought to the Councillors’ attention when they made the decision.
The Council’s decision was challenged by service users. The Court held that elected members could not come to a balanced conclusion without being aware of what their responsibilities were under the Disability Equality Duty. As a result, the decision to restrict adult care services was held to be unlawful.
R (Kaur) v London Borough of Ealing [2008] EWHC 2062 (Admin)
Southall Black Sisters (SBS) provides specialist services to Asian and Black Caribbean women, particularly in relation to domestic violence issues.
In June 2007, Ealing Council announced proposals to move away from funding particular organisations (such as SBS), towards commissioning services (including domestic violence services) following a competitive bidding exercise.
Despite concerns raised during consultation that plans had not been equality impact assessed, and that commissioning could disadvantage grassroots community initiatives, Ealing decided to press ahead with its proposals.
During discussions about criteria for commissioning domestic violence services, SBS had highlighted the adverse impact the criteria could have on pre-existing domestic violence services provided to women from ethnic minority communities, and so an equality impact assessment should be carried out.
Ealing carried out belated impact assessments on proposals before deciding to proceed with the existing domestic violence services commissioning criteria, resulting in two SBS service users launching a judicial review of the decision. Ultimately, Ealing conceded these submissions and withdrew from the case.
However, in an oral judgment, Lord Justice Moses reiterated the importance of undertaking an equality impact assessment, and also the importance of carrying out an impact assessment before policy formulation.
The Queen on the Application of Janet Harris and The London Borough of Haringey and (1) Grainger Seven Sisters Ltd (2) Northumberland and Durham Property Trust Ltd and the Equality and Human Rights Commission [2010] EWCA Civ 703 – Duty to consider the impact on racial groups when proposing redevelopment.
The Court of Appeal withdrew planning permission for Wards Corner and reminded local councils of their duty to consider the impact of proposed large-scale building redevelopment on different racial groups.
The Equality and Human Rights Commission intervened in the case which arose from a decision by Haringey Council to grant planning permission for the redevelopment of Wards Corner in Tottenham. The site incorporates an indoor market comprising 36 retail units and 33 residential units along an adjoining road. The majority of the businesses and flats affected by the scheme are owned or occupied by black people or other minority ethnic groups.
Janet Harris, a local resident, challenged the planning permission on the basis that the Council had failed to discharge its statutory duty to have due regard to the need to promote equality of opportunity and good relations between different racial groups. She was concerned about the level of business rents that would be charged at the redeveloped site and the lack of affordable housing in the scheme.
The High Court judge had rejected the challenge and Ms Harris appealed to the Court of Appeal.
The Equality and Human Rights Commission argued that the presence of documents before the Council making reference to equality issues was not enough to comply with the statutory duty. The Council had to show they had consciously addressed their mind to the duty and actively considered any new plan or policy in light of the potential impact it may have on particular racial or ethnic groups.
The Court of Appeal agreed. Lord Justice Pill said the duty to have due regard involves a conscious approach and state of mind which had not been demonstrated in the case at hand. He said the council had not focussed on the specific statutory considerations and analysed the material before it with these considerations in mind.
Stuart Bracking and others v Secretary of State for Work and Pensions (Equality and Human Rights Commission intervening) [2013] EWCA Civ 1345
In this case, in which the Commission intervened, the Court of Appeal overturned the government’s decision to close the Independent Living Fund (ILF). The ILF is a discretionary trust funded by the Department for Work and Pensions (DWP) that supports care packages to help disabled people live independent lives. The court found that the decision to close the ILF had been taken without complying with the public sector equality duty (PSED).
Background and facts of the case
The ILF is a non-departmental public body operating as an independent trust. It operates in partnership with local authorities to help disabled people live as fully as possible in the community, by providing joint care packages through services and direct payments. Over 19,000 people were in receipt of assistance from the ILF in October 2013 when the Court of Appeal considered the case.
In July 2012, the DWP launched a consultation on the future of the ILF, presenting as its preferred option the closure of the fund in 2015, with ILF users’ needs being met within the mainstream system which provides care and support. In December 2012, the Minister announced her decision to close the ILF in 2015. The DWP’s assessment of the equality impact of this decision acknowledged the potential negative impact on ILF users but lacked precise details of this impact.
Stuart Bracking and four other ILF users made an application for judicial review of the decision to close the fund, arguing (1) that the public consultation was defective because adequate information was not provided and (2) that the materials before the Minister did not provide an adequate basis for properly discharging the PSED. The High Court rejected the application and the claimants appealed to the Court of Appeal on the second ground alone.
The Court of Appeal’s decision
The Court of Appeal agreed that the Minister had not done enough to discharge the PSED. There was little to suggest that she had focused on its legal requirements or that her officials had drawn her attention to the ‘very grave’ predicted impact on people affected by the decision. The court allowed the appeal and quashed the decision to close the ILF.
What the Court of Appeal said about the PSED
The Court of Appeal approved the six principles established by the High Court in the case of R. (Brown) v. Secretary of State for Work and Pensions [2008] EWHC 3158.[1] These are the principles which are relevant for a public body in fulfilling its ‘due regard’ duty under the PSED. The Court also confirmed some additional principles:
- The equality duty is an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation.
- The duty is upon the decision maker personally. What matters is what he or she took into account and what he or she knew.
- A public body 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.
- A public body must have available enough evidence to demonstrate that it has discharged the duty.
- Public bodies should place considerations of equality, where they arise, at the centre of formulation of policy, side by side with all other pressing circumstances of whatever magnitude.
The Commission’s intervention
The Commission applied to the court to intervene in this case as an expert body with a mandate from Parliament to oversee the PSED. The Commission was seeking clarification from the court on what is required for a decision maker in a public body to show that proper consideration has been given to the impact of a proposal which affects people with a characteristic protected by the Equality Act 2010. The Court accepted our submissions that conscious consideration was needed of the impact of the proposal on all disabled people and specifically on ILF recipients who would most obviously be adversely affected by it.
Last updated: 19 Feb 2019