Challenges to Birmingham City Council (twice), the Treasury and Lancashire County Council have provided reminders of how to comply with the Public Sector Equality Duty (s.149 Equality Act 2010) when making difficult budgetary and policy decisions.

The challenges were brought by a women's group (the Fawcett Society) and by various disability groups. Each claimed that the public body concerned had failed to have due regard to the need to promote equality of opportunity, eliminate unlawful discrimination and foster good relations.

The Court decisions tell us:

  1. S.149 does not require the public body to achieve a particular result: the duty is to have "due regard".
  2. "Due regard" is regard that is appropriate in all the circumstances. Countervailing factors must also be considered and in some cases will outweigh the equality duty.
  3. An Equality Impact Assessment ("EIA") may be helpful in showing that "due regard" has been had, but it is not essential.
  4. An EIA that fails objectively to assess the impact will not be adequate.
  5. Failure to make explicit reference to "the equality duty" is not fatal to any decision.
  6. It is permitted to make a "provisional" budgetary/policy decision and then explore the impact of that decision on equality issues. It is important that the assessment is thorough and there is scope for change of the budget/policy in light of the assessment.

…and the names of the cases:

  • R (Fawcett Society) v Chancellor of Exchequer [2010] EWHC 3522
  • R (Rahman) v Birmingham City Council [2011] EWHC 944
  • R (WM & Others) v Birmingham City Council [2011] EWHC 1147
  • R (JG & MB) v Lancashire County Council [2011] EWHC 2295