In the light of some recent cases, one might be forgiven for thinking that cuts in social services are in breach of equality law. Clearly, that is not the case. However, what equality law does, essentially, is to require local authorities to think carefully about the needs of the disabled, the elderly and others before making such cuts and to give anxious consideration as to whether the cuts could be avoided, reduced, made elsewhere or at least mitigated. The duty is not a particularly complex or onerous one. However, for various reasons, it is a duty that many local authorities are getting wrong.
The public sector equality duty: where are we now?
The old equality law is no more. The new public sector equality duty (“PSED”) is found at section 149 of the Equality Act 2010 (“the Act”), which came into force on the 5th April 2011. It provides, inter alia, as follows:
149 Public sector equality duty
(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it…………..
(7) The relevant protected characteristics are—
age;
disability;
gender reassignment;
pregnancy and maternity;
race;
religion or belief;
sex;
sexual orientation.
The machinery ancillary to the PSED is still emerging.
New “specific duties” are still only in draft Regulations, called The Equality Act 2010 (Specific Duties) Regulations 2011, annexed to Equality Act 2010: the public sector Equality Duty: reducing bureaucracy (the Government Equalities Office, 17th March 2011).
The Equality and Human Rights Commission (“EHRC”) has not yet published its statutory Code of Practice on the PSED: that is expected later in 2011, after the specific duties Regulations are brought into force.
However, on the 12th January 2011 the EHRC published 5 volumes of best practice guidance on the PSED, here.
The EHRC maintains a web page (click here to view it) specifically for the purposes of providing information relevant to Act.
The approach of the Equality and Human Rights Commission
In September 2010 the EHRC published useful non-statutory guidance called Using the Equality Duties to make Fair Financial Decisions. This guidance is framed in the context of earlier equalities legislation but is relevant to decisions under the new PSED. It contains much that is of real, practical assistance to local authorities.
The EHRC pointsout that the equality duties do not prevent public authorities making difficult decisions about cuts to services, including cuts that will affect one group more than another. However, they do require authorities to demonstrate that they are making financial decisions in a way that has due regard to the need to, in short, protect and promote the interests of vulnerable members of the community.
Whilst there is no legal duty to carry out an equality impact assessment, that is the route advised by the EHRC in order to show that “due regard” has been had, at least where relatively significant changes are in contemplation. Using the Equality Duties to make Fair Financial Decisions provides a useful summary of what is required, albeit emphasising that what is required will vary, proportionately, according to the significance of the proposal, in the sense that the deeper the proposed cuts, the more careful must “due regard” be.
The advice given is not materially different from the advice given in the statutory codes and non-statutory guidance on the previous equalities legislation, or from the advice given in Volume 2 of the 5-volume best practice guidance referred to above: Volume 2 is called Equality Analysis and the equality duty: A guide for public authorities. Accordingly, in the context of relatively significant policy changes or cuts, public authorities are still expected by the EHRC to:
- Consult with and involve persons with protected characteristics;
- Analyse how the decision or policy will affect persons with protected characteristics;
- Remove any unlawful discrimination or other conduct and, otherwise, consider whether changes could be made to advance equality, or to avoid or mitigate any adverse effects;
- Document the analysis;
- Engage in monitoring and review.
The approach of the Courts
The first point to note is that it would be a big mistake to assume that the Courts are likely to be so impressed by horrific tales about lack of resources, so as to take an indulgent approach to compliance with the PSED, at least in the general run of cases. In R (Rahman) v Birmingham CC[2011] EWHC 944 Admin, at paragraph 46, Mr Justice Blake said:
Even where the context of decision making is financial resources in a tight budget, that does not excuse compliance with the PSEDs and indeed there is much to be said for the proposition that even in the straightened times the need for clear, well-informed decision making when assessing the impacts on less advantaged members of society is as great, if not greater. In general terms I consider the advice recently issued in non-statutory guidance by the Equality and Human Rights Commission ("Using the equality duties to make fair financial decisions") to be of assistance to decision makers such as this defendant in the no doubt very difficult decisions that have to be taken in this field, but it is not necessary to prolong this judgment by citation from them.
The second point to note is that the Courts have focussed in particular on the existence of a duty to give careful consideration to the likely adverse impacts of proposed cuts in services, as an implicit aspect of the duty to have “due regard” to the various needs set out in the PSED.
In Rahman, Mr Justice Blake said, at paragraph 35:
………the EINA assessment of prejudice to service users is inadequate in its examination of the evidence and its compliance with the approach recommended by the defendant's own guidance code for such documents. In a number of respects the content of that EINA seem to have been driven by the hopes of the advantages to be derived from a new policy rather than focussing upon the assessment of the degree of disadvantage to existing users of terminating funding arrangements until new arrangements can be put in place. There is more than a hint of what Moses LJ called in the case of Kaur and Shah [2008] EWHC (Admin) 2062of policy based evidence rather than evidence based policy.
A similar approach was taken by Mr Justice Walker in R (W) v Birmingham CC[2011] EWHC 1147 Admin. The learned Judge used helpfully clear language to convey what should have been done, but was not:
176 …………It is difficult to see how, in the circumstances of the present case, "due regard" could be paid to the matters identified in s 49A without some attempt at assessment of the practical impact on those whose needs in a particular respect fell into the "substantial" band but not into the "critical" band………..
181 ………….even if members were able to form some sort of opinion as to the broad impact of the move to "critical only", there was not in the material prepared for the meetings any assessment of the extent to which such mitigating factors as were mentioned would or would not reduce the potential severity of the proposed move to "critical only". True, there were passages in this material which acknowledged complaints about lack of detail in the consultation papers and purported to reply: but the reply did not meet the complaints. The passage in the A&C March Report headed "Evaluation of Alternative Options" did not remedy these defects. In the EINAs, if members had consulted them, neither the analysis nor the suggested action plans attempted to examine what the actual impact of the move to "critical only" would be or how it would be affected by mitigating measures……….
183 ……………..Thus I conclude that there was a failure in the material prepared for consideration on 1 and 14 March to address the questions which arose when considering whether the impact on the disabled of the move to "critical only" was so serious that an alternative which was not so draconian should be identified and funded to the extent necessary by savings elsewhere.
Nothing in either of these judgments imposes an onerous or complex duty. What is required is a conscientious assessment of the potential adverse impacts on persons with protected characteristics, in practical terms, which is then put to local authority decision-makers, warts and all, so that they can take it into account and consider whether they really can justify such consequences in order to make budgetary savings, or whether the cuts should be reduced, mitigated or made elsewhere.
What will continue to get local authorities in trouble with the Courts is the type of equality analysis – sadly all too common - which disregards or minimises the adverse consequences of the proposed cuts or, worse still, additionally, takes the opportunity to argue that the package as a whole actually promotes equality.
Of course, it can be difficult, within any corporate environment, to stand aside from all the considerations that justify a new policy and to remorselessly list the downsides. However, that is what must be done. To make it easier, the “due regard” duty includes a duty to involve and consult with those affected. They at least, if consulted properly, are likely to be of some assistance in spelling out the potential difficulties. However, the duty remains on the authority.
Conclusion
Local authorities that operate as follows should not expect to be successfully challenged on PSED grounds:
- There should be a careful process of consultation and involvement, that does everything that the public authority’s own equality policy promises (e.g. in terms of consultation and involvement of particular groups) and that drives at eliciting the views of service users and relevant groups about what is proposed and how it will affect them, in particular as persons with protected characteristics;
- Building on the products of that consultation and involvement, the equality analysis should contain a conscientious, no holds barred analysis of the potential adverse impacts on all those with protected characteristics. As Mr Justice Walker indicated, the analysis should focus on the actual, practical consequences of what is proposed, and of any mitigating steps;
- The consultation report and equality analysis must of course be clearly drawn to the attention of decision-makers;
- The decision-makers’ attention must be clearly and explicitly drawn to their personal duty to discharge the PSED: the existence, importance and content of the PSED needs to be made clear, in a practical way, that emphasises the basic need to advance equality and so on and, specifically in relation to cuts, to consider whether the adverse consequences of what is proposed are justifiable in the light of the need to make cuts, whether savings can be made in some other way, whether reduced cuts are possible and whether mitigating steps, or more mitigating steps, should be undertaken;
- The whole process should be documented;
- There should be a clear process of ex post facto monitoring and review, so that if the adverse impacts prove to be worse than expected, the policy can be reconsidered or fine-tuned.
