Public Sector Equality Duty

Insight

Paying Due Regard: Case Law

The Equality Act 2010 states that public sector organisations must pay “due regard” to the Public Sector Equality Duty. Case law provides guidance on the extent of “due regard”.  

R (Chavda) v. London Borough of Harrow [2007]

In order 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 (which pre dates the Public Sector 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.

The Court stated that paying due regard is ‘…more than simply giving consideration’ and ‘it is important that Councillors should be aware of the special duties the Council owes to [protected groups] before they take decisions. It is not enough to accept that the Council has a good [equality] record and assume that somehow the message would have got across’.

Practice Implications:

This case shows the importance of signposting existing support services and that it is essential to record how consideration of the Public Sector Equality Duty has been taken into account in decision making.  It is also important that executive management and people involved in governance are aware of their duty to pay due regard, and that they scrutinise whether the obligations have been met.

R (Brown) v. Secretary of State for Work and Pensions [2008]

The case involved the proposal to close an accessible local post office and whether in making proposals to reduce post office services, the postal service had given adequate consideration to their Public Sector Equality Duty in respect of disability.

The Court stated: “There must therefore be a proper regard for all the goals set out in [s 149]. At the same time, the public authority must also pay regard to any countervailing factors which, in the context of the function being exercised, it is proper and reasonable for the public authority to consider’

Practice Implications:

When a public authority makes decisions that might affect an equality group, it must be conscious and explicit about its duty to have due regard to the equality elements of the Public Sector Equality Duty.  

“Due Regard’ must be exercised with rigour and with an open mind, and it is not about ‘ticking boxes’. The Duty has to embedded within the discharge of the public functions of the organisation. 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 element of the Public Sector 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 element of the Duty, as this will reduce the chance of someone successfully arguing that ‘due regard’ has not been paid to equality considerations. This is also likely to assist in demonstrating that factors relevant to equality are taken into account when developing a policy.

Records should be kept which show how public authorities had actually considered the Duty. Such record-keeping encourages transparency. If records are not kept, it will be challenging for a public authority to persuade a court that it has fulfilled its legal obligations.

Hajrula v. London Councils [2011]

This case involved a challenge brought by users of the Roma Support Group of the London Councils’ plans to cut £10m from the £26.4m funding that it provided to voluntary sector organisations in London. 

The Court found that the London Councils’ consultation process was flawed and they had failed to comply with their equality duties. The Court quashed the decisions and ordered the London Councils to re-consider their decisions having done full equality impact assessments. The Court commented ‘in a case where large numbers of vulnerable people, many of whom fall within one or more of the protected groups, are affected, the due regard necessary is very high”.

Practice Implications:

This case demonstrates the importance of proportionality. When a proposal or decision is likely to negatively affect vulnerable groups who already face disadvantage, a comprehensive evidence based approach must be taken in discharging the obligations to demonstrate “due regard”. Conversely, a lighter touch may be appropriate with proposals or decisions which are unlikely to result in a negative effect on vulnerable groups.

Baker v. Secretary of State for Communities and Local Government [2008]

The case concerned a decision of the Secretary of State’s Inspector to dismiss appeals against the refusal by the London Borough of Bromley to grant applications for planning permission for a number of touring caravans and mobile homes. The Court found that there has been no breach of the Duty.

Practice Implication:

This serves as a reminder that listed authorities are not obliged to actually achieve the aims of the Public Sector Equality Duty; instead, they are expected to conscientiously think about how the Duty should affect practice, and how practice might be changed to assist them in better meeting the Duty.