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Ways to avoid challenges to a potential breach of the Public Sector Equality Duty – Case Law Update
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Ways to avoid challenges to a potential breach of the Public Sector Equality Duty – Case Law Update

Public sector organisations are to have due regard to the Public Sector Equality Duty (PSED), as set out in section 149 of the Equality Act 2010, when exercising their functions.

There have been a number of cases since the beginning of this year that have sought to bring a breach of the public sector equality duty as a challenge against local authorities. In the case of Hotak v London Borough of Southwark [2015], the effect of the PSED was considered and the court confirmed that the weight and extent of the equality duty were highly fact-sensitive and independent on individual judgement.

Whilst a large number of claims have dismissed the challenge, we have seen instances of it being a successful and unchallenged ground too. Where challenges have been successful in the last year, they have been so in circumstances where the claimants identified very particular and significant facts or issues that were not taken into account by the relevant decision-makers.

In the case of R (Cushnie) v Secretary of State for Health [2014], Regulations that allowed for the free treatment of former asylum seekers only if they were receiving accommodation and support from the Home Office pursuant to certain statutory provisions were found to have been made in breach of the PSED. It was stated that the Secretary of State had not addressed the impact on disabled people accommodated by local authorities under the National Assistance Act 1948. The failure to comply was not excused by the fact that this issue was not brought to the attention of the Secretary of State during the consultation process.
In the case of R (Coll) v Secretary of State for Justice [2015], the judge accepted that the Secretary of State for Justice was in breach of its PSED in considering the paucity of approved premises for female prisoners compared to what was available for male prisoners. Therefore, it is imperative for councils to have full and proper regard to this duty when making decisions.

Nevertheless, recent case law has evidenced processes by which time-consuming, expensive and disruptive, and reputationally damaging legal proceedings can be prevented.

  1. In Moore v Secretary of State for Communities and Local Government [2015], it was confirmed that specifically stating that PSED has taken place will not be sufficient. Instead, it requires actual consideration and evidence of a structured attempt to focus on the details of equality issues.
  2. A full and robust Equality Impact Assessment (EIA) will evidence due regard to the PSED. The case of R (Aspinall, Pepper and others) v Secretary of State for Work and Pensions [2014] demonstrates that a public body should ensure that it has sufficient equalities information about potential equalities issues for which to base the EIA on.
  3. Care should be taken to ensure that areas which could be considered to have a detrimental impact on groups with protected characteristics are highlighted in the EIA and proposed mitigation measures are identified. R (Cushnie) v Secretary of State for Health [2014] underlines the importance of considering all protected characteristics when assessing the equality impact of a measure, and not just those protected characteristics which are most obviously connected to that measure.
  4. The case of R (Robson) v Salford City Council [2014] highlighted that so long as the decision-making is robust, due processes are followed and the public body can demonstrate that they are evidently aware of its legal duty by considering both the potential adverse impacts on existing users of the service, then the public body will be deemed to have complied with section 149 of the Equality Act 2010. The Robson case considered the duty to consult the public, service users, local community groups, employees and other interested third parties on their proposals. Whilst the local authority had consulted service users about using other forms of transport, they had not said in terms that the existing council-run service would be withdrawn from them. The court held that it was not possible to say that the whole consultation process was unfair as it "would have been impossible for any sensible reader of the consultation booklet not to have understood that this proposal would involve the withdrawal of the…service from those who were assessed as being able to use the alternative transport arrangements".


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