Asylum accommodation and the Public Sector Equality Duty: the need for statistical monitoring

In exercising his functions to provide accommodation to destitute asylum seekers and failed asylum under the Immigration and Asylum Act 1999 (‘the IAA 1999’), the Secretary of State for the Home Department (‘SSHD’) is bound by the Public Sector Equality Duty (‘the PSED’) under section 149 Equality Act 2010 (‘EA 2010’).

The PSED imposes a requirement to have ‘due regard’ to the need eliminate discrimination, advance equality of opportunity and foster good relations in the exercise of public functions. The PSED is a ‘process duty’ but the Court of Appeal in R (Bridges) v Chief Constable of South Wales Police [2020] 1 WLR 5037 was clear that does not “diminish its importance” [176]. The Court of Appeal proceeded to cite with approval a passage from Karon Monaghan KC in Equality Law, 2nd ed (2013), at [16.06] that explained the statutory object and purpose of the predecessor race duty:

“The purpose of the general race equality duty was to create a strong, effective, and enforceable legal obligation which placed race equality at the heart of the public authority's decision making. The new duty was intended to mark a major change in the law. It represented a move from a fault-based scheme where legal liability rested only with those who could be shown to have committed one or other of the unlawful acts. Instead, the duty-bearer, the public authority, was to be required to proactively consider altering its practices and structures to meet this statutory duty.”

The PSED incorporates a duty of inquiry for the decision-maker to equip themselves with adequate information to make a rational decision. The duty derives by necessary implication from the statutory duty to have 'due regard'. The discretion as to what information should be obtained is not at large; it is conditioned by the nature of the section 149, its statutory objective, any relevant code of practice as well as the facts of the particular case. As held by the Court in R (DXK) v SSHD [2024] EWHC 579 (Admin) at [136]:

“All of these factors may narrow the decision-maker's margin of discretion so as to justify the court's intervention in a failure to obtain equality evidence when an application of orthodox Tameside principles alone may not.  As Lord Steyn observed in R (Daly) v SSHD [2001] 2 AC 532, [28], 'the intensity of review in a public law case will depend on the subject matter in hand ...[i]n law, context is everything'.”

The PSED is also a ‘continuing duty’. As set out by the Court in R (DMA) v. Secretary of State for the Home Department [2021] 1 WLR 2374, this can impose a legal duty to monitor how protected groups are affected by delays in the asylum accommodation system.

In the recent case of R (DXK) v SSHD [2024] EWHC 579 (Admin), the High Court developed the DMA line of reasoning and considered the SSHD’s compliance with the PSED in relation to pregnant and new mother asylum-seekers and failed asylum-seekers ('PNMAS'). The Court found that there was a breach of the PSED in respect of section 149(1)(b) EA 2010 (due regard to the need to ‘advance equality of opportunity’) in relation to the protected characteristics of pregnancy and age. The Court dismissed the other grounds of claim.

The Court held that for the SSHD to comply with the PSED he needed to have due regard to the need to take steps to meet the differing needs of PNMAS for dispersal accommodation (‘DA’) (section 149(3)(a) EA 2010) and how to minimise or remove the particular disadvantages that delays in dispersal cause them (section 149(3)(a)) EA 2010). This may include treating PNMAS more favourably than other asylum seekers and failed asylum seekers (s 149(3)(a) EA 2010) by, for example, prioritising them for dispersal.

The Court found (at [36]) that PNMAS are disproportionately adversely impacted by systemic delays in provision of DA compared to other asylum seekers and failed asylum seekers. As such, the Court held that as the PSED is a continuing duty, the SSHD was required to consider whether his Healthcare Needs and Pregnancy Dispersal Policy, v3.0 (1 February 2016) (‘the HNPD Policy') “was sufficient to achieve its s 149(1)(b) objective or whether he needs to change any practice or policy”.

The Court found that while the SSHD had introduced a new Standard Operating Procedure (‘the Vulnerability Log SOP’), that alone was inadequate to discharge the PSED, as it did not allow for statistical data monitoring in relation to PNMAS. Specifically, the SSHD had confirmed in evidence that he did not collect and monitor statistical data relating to: a) the number of PNMAS assessed as requiring accommodation under the IAA 1999; b) the timescales in which the SSHD makes accommodation requests for dispersal of PNMAS following a decision on eligibility; c) the timescales within which PNMAS are in fact provided with (and moved to) DA following an accommodation request.

The SSHD attempted to distinguish DMA on the basis, inter alia¸ that the present case did not concern actual or the risk of Article 3 ECHR breaches as there was no risk of street homelessness. However, the Court was clear that the impact on PNMAS and their unborn and new-born children of being in initial accommodation (‘IA’) on a long-term basis was very grave. Statistical monitoring was required given the numbers involved and the evidence of risks to maternal health during pregnancy and adverse impacts on the physical and mental health of mothers and young children of being accommodated for long periods in IA.

Overall, the Court concluded that the SSHD had failed to have due regard to the need to collect and monitor statistical data in three respects:

• i. There is no evidence that the SSHD had given active consideration to whether statistical data monitoring would be necessary for the discharge of his section 149(1)(b) duty.
• ii. It was evident that the SSHD considered such statistical data monitoring was likely to assist him in discharging his statutory duties, however, the SSHD had abandoned his plans to introduce such monitoring without evidence to explain why.
• iii. There was a particular need for statistical data monitoring to detect trends or assess whether the HNPD Policy and/or the Vulnerability Log SOP were having their intended effect of prioritising PNMAS for dispersal. Without such statistical monitoring, those key trends could not be readily detected.

DXK continues a line of authority demonstrating the value of the PSED in challenging systemic unlawfulness. Statistical monitoring will not be required by every public authority for every system. However, where there is a large number of vulnerable people in a system and certain protected groups are likely to be disproportionately adversely affected, statistical equality monitoring is more likely to be required to comply with the PSED.

Although relief in PSED challenges is likely to be more modest than substantive challenges under, inter alia, Human Rights Act 1998, EA 2010 or Padfield, if a public authority is required to put in place systems to adequately monitor the extent of the adverse impacts of a system on protected groups, the data collected should focus the public authority’s mind on addressing the systemic unlawfulness and/or provide a more robust evidence base to bring further substantive challenges to those systems.