This briefing summarises challenges by way of judicial review relating to decision – making and policy formulation where the challenge has included an alleged failure by the public body to comply with its public sector equality duty under section 149 of the Equality Act 2010.
The general Public Sector Equality Duty
The general equality duty is set out in the Equality Act 2010 (section 149) (“the Act”). Those subject to the general Public Sector Equality Duty must, in exercising their functions, have due regard to the need to:
- eliminate unlawful discrimination, harassment, victimisation and other conduct that is prohibited by the Act;
- advance equality of opportunity between persons who share a protected characteristic and those who do not; and
- foster good relations between persons who share a protected characteristic and those who do not.
The Act itself is not overly prescriptive about the approach a public authority should take to ensure due regard, although it does set out that due regard to advancing equality involves:
- removing or minimising disadvantages suffered by people due to their protected characteristics;
- taking steps to meet the needs of people from protected groups where these differ from the need of other people.
Recent Case Law
1. R (Bracking and others) v Secretary of State for Work and Pensions  EWCA Civ 1345 (Court of Appeal) (“Bracking”)
Five disabled claimants challenged the Department of Work and Pension’s (DWP’s) decision to close the Independent Living Fund (ILF). The ILF provides additional funding for the Independent Living Needs of severely disabled people in the UK to enable them to live independently in the community. The fund is available to those individuals who required a higher level of support to maintain independent living and working. Those eligible were already in receipt of a care package from the Local Authority Social Services and ILF funding operated as a top-up for their high level support needs.
In 2010, the ILF temporarily closed due to a reduction in funding. DWP subsequently announced an intention to permanently close the fund to new applicants and thereafter its decision to close the fund completely in 2015. DWP conducted a consultation between July and Oct 2012 on the single proposal presented, being closure. DWP said that it could not assess the impact on disabled people until after the consultation has ended.
The Court of Appeal considered the requirements of s.149 of the Act and relevant leading the case law, which predates the current legislation, as follows:
- R (Elias) v Secretary of State for Defence  EWCA Civ 1293 : Equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of antidiscrimination legislation.
- R (BAPIO Action Ltd) v Secretary of State for the Home Department  EWCA Civ 1293: an important evidential element in demonstration of the discharge of the duty is the recording of the steps taken by decision maker in seeking to meet the statutory requirements.
- R (National Association of the Health Stores) versus Department of Health  EWCA Civ 154: 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 other 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.”
- Kaur & Shah v London Borough of Ealing  EWHC 2062 (Admin) : A Minister must assess the risk and the extent of any adverse impact and the ways in which such risk maybe eliminated before the adoption of a proposed policy and not merely as a “rear guard action” following a concluded decision.
These cases and others were considered by Lord Justice Aikens who set out in 6 principles (“ the Brown principles”) which continue to be applied by the courts to date in the case :
- R (Brown) v Secretary of State for Work and Pensions  EWHC 3158 (admin):
(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 “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 considering of the duty
- R (Bailey) v Brent LBC[ 2011] EWCA 1586: general regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria
- R (Domb) v Hammersmith & Fulham LBC  EWCA Civ 941: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 (Hurley & Moore) v Secretary of State for Business, Innovation and Skills  EWHC 2010 (Admin): “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 then the Court cannot interfere with the decisions simply because it would have given a greater weight to the equality implications of the decision under 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 light of all relevant factors.”
The challenge in Bracking succeeded on the following basis:
“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.
It is for this that advance consideration has to be given to these issues and they have to be an integral part of the mechanisms of government… To paraphrase slightly the words of our Arden LJ in the Elias case. There is a need for a “conscious approach” and the duty must be exercised “in substance, with rigour and with an open mind” (per Aikens LJ in Brown).
In the absence of a more “structured attempt to focus upon the details of equality issues” (per my Lord, Elias LJ in Hurley & Moore) a decision maker is likely to be in difficulties if his or her subsequent decision is challenged." McCombe LJ
The Court of Appeal held, there being only one very short passage in the evidence of one witness for dealing with the issue of EIA, that there was “nothing to identify a focus upon the precise provisions of the Act that seemed to the Minister and her officials to be engaged, what precise impact was envisaged to persons potentially affected and what conclusion was reached in light of those matters."
The Court determined that here was insufficient evidence to establish that due regard had been given to impact of the decision on the protected characteristic of disability. The appeal was allowed and DWP’s decision was quashed.
2. R(D) v Worcestershire County Council  EWHC 2490 (Admin)
The challenge related to the local authority’s adoption of a "Policy for Determining the Usual Maximum Expenditure for Non-Residential Care Packages" ("the Policy"), under which, absent exceptional circumstances, the maximum weekly expenditure on care in the community for an adult under 65 years of age would be "no more than the net weekly cost… of a care home placement that could be commissioned to meet the individual's assessed eligible needs". The claimant , who had a range if needs and suffered from including learning disability, attention deficit hyperactivity disorder, auditory processing difficulties and epilepsy, alleged a failure to comply with the PSED set out s149 of the Act . The Court of Appeal held that the PSED has been appropriately complied with. This case illustrates the relevance of EIAs in defending a challenge by way of judicial review:-
“Whether an authority has complied with its PSED is fact-specific. This is not a case where the PSED was simply ignored. As I have indicated…, not only was an EIA commissioned, the Council set up an EIA Working Group to oversee and contribute to the EIA, in the context of the consultation responses, and it met a number times. At each meeting, it considered the requirements of the PSED, and in particular the need to advance equality of opportunity for disabled people.”
3. R (on the application of Hunt) v North Somerset Council  EWCA Civ 1320
In this Court of Appeal case, a challenge was brought against the local authority’s’ decision to reduce spending on youth services. The applicant was aged 22 years with learning disabilities and behavioural problems. At first instance the Judge relied on an inference that the decision makers had read EIA. EIAs were not provided to the councillors for their meetings. They were told how to access them and summary of the EIAs were provided. The local authority sought to rely on the summary as sufficient to satisfy the PSED.
This challenge under the Act succeeded on the following basis:
- Whilst councillors were told how to access the EIAs, they were not told, either expressly or impliedly, that they must or should consider them before the meeting
- One councillor having read EIAs did not provide any indication as to what all the other councillors did or were likely to have done
4. R (on the application of Rotherham Metropolitan Borough Council & Another) v The Secretary of State for Business, Innovation & Skills  EWHC 232 (Admin)
The applicant local authority challenged the Secretary of State’s decision in relation to the regional allocation of European Union structural funds. The decisions fixed the individual allocation for each region. The High Court determined that those allocations are in no sense preliminary or provisional. The fact that the individual regions would themselves have to consider the PSED when deciding how to use the funds allocated to them could not absolve the Defendant from the PSED.
The court quashed the Secretary of State’s decision on the basis that consideration of the PSED via an EIA did not take place until after its decision on allocation had been made:
“The Defendant has, after the event, carried out an Equality Impact Assessment. This cannot save the decision making. This analysis shows a correlation between funding per capita and disability. Given that the Claimants are, according to the Defendant "hard cases" in terms of the allocation given to them for 2014 – 2020, it seems clear to me that the Defendant should have had "due regard" to the s149(1)(a) and (b) objectives. I therefore find that the Defendant breached the PSED.”
5. R (on the application of MA & others) v Secretary of State for Work and Pensions (2014) Court of Appeal
The case involved a challenge to changes in the calculation of housing benefits and changes to rent in the public sector via the introduction of the so called “bedroom tax”.
The Court of Appeal again considered the requirements in relation to PSED and confirmed the Brown principles and the analysis of case law set out in Bracking.
In turning down the challenge, the Court held that it was insufficient for the decision maker to have a vague awareness of his legal duties. Decision makers need to have a focused awareness of the each of the s.149 duties and in a disability case their potential impact on the relevant group people.
Blake Morgan Comment
The cases referenced above serve as a reminder that that EIAs, EIA outcomes and actions identified should be at the heart of decision- making. Consideration of the impact that a decision may have must take place before the decision has been made, at a formative stage. There is a critically important interface between assessing impact and engagement. EIA should be informed by the product of that engagement.
It is essential that all public bodies understand the effect of the Act on their policies and practices, to assist them to comply with the s149 duty.
For further information and advice on the general Public Sector Equality Duty, the impact of decision-making and policy, equality impact assessment, cross border issues and the court’s approach to demonstrating “due regard” or to discuss your training needs please contact Eve, details below.