Will flaws in Equality Impact Assessments lead to decisions taken on the basis of them being quashed? Not always, a recent High Court decision suggests, provided the decision-maker can demonstrate substantive compliance with the Public Sector Equality Duty (PSE Duty) under the Equality Act 2010.
R v the Secretary of State for Business and Skills on the application of Hurley and Moore was a judicial review challenge brought by two students against the decision by the Coalition Government to increase tuition fees, following the Browne Review of Higher Education and Student Funding. The case relates to the increases in tuition fees adopted as a key part of the reforms to the funding of higher education but is relevant to all public bodies subject to the Equalities Act 2010, including health authorities and other public bodies in the healthcare sector. The claimants failed to persuade the Court on the main aspects of their challenge but persuaded the Court that DBIS had failed to comply with the Public Sector Equality Duty (the “PSE Duty”) in the way it had analysed the impact of the proposed policy. However, the Court declined to quash the Regulations implementing the changes, and its comments in relation to Equality Impact Assessments (“EIAs”) are significant for all public bodies.
It should be noted that the Government Equality Office and the Courts have recognised that not all decisions of public bodies need to be supported by EIAs. EIAs are only required where the PSE Duty is engaged by the factors relating to the particular decision to be taken (as discussed further below).
The PSE Duty is set out in section 149 of the Equality Act 2010. Essentially, the PSE Duty means that public authorities, in the exercise of their functions, must have due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited by or under the Act; advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and foster good relations between persons who share a relevant protected characteristic and persons who do not share it. Protected characteristics apply to qualities such as age, race, gender, and disability.
Essentially, DBIS had carried out EIAs in considering the impact of increases on tuition fees on individuals from “the lower socio-economic groups”, and was able to demonstrate that it had undertaken detailed analysis by reference to formal EIAs and underlying evidence, but it had not adequately differentiated between different protected groups in assessing the impact of increasing tuition fees.
The Court held that, even though DBIS had failed to comply with its statutory duties in the way it had produced its EIAs, the decision under challenge would not be quashed, in part because DBIS could demonstrate that it had very substantially complied with the PSE Duty and gave some useful guidance on the approach the courts will take to considering EIAs, including whether they are actually required.
This case shows that public bodies cannot assume that a decision will impact on all categories of protected characteristic in the same way: the same decision can impact on different protected characteristics in different ways. EIAs need to explain, in some detail, how public bodies have discharged their PSE Duties in their decision-making process.
In considering arguments that the EIA was flawed because it did not refer to a specific piece of evidence, the Judge said “it is quite hopeless to say that the duty has not been complied with because it is possible to point to one or other piece of evidence which might be considered relevant which was not specifically identified in the EIA”. He also echoed comment in earlier decisions relating to local authorities that “Councils cannot be expected... to apply, indeed they are to be discouraged from applying, the degree of forensic analysis for the purpose of an EIA and of consideration of [the PSE Duty] which a QC might deploy in court” (emphasis added). This suggests that the Courts will not be pedantic in insisting that EIAs reflect and cite every piece of evidence which might conceivably be relevant.
A major factor in deciding not to quash the regulations implementing the increase in tuition fees was the major economic and administrative impact that decision would have. It is likely that the Court would have been more willing to quash the regulations if that impact would have been less.
However, there is some further comfort for public authorities. The Judge held that “it is for the decision maker to decide how much weight should be given to the various factors informing the decision” and that it is not for “unelected judges to review on substantive merits almost all aspects of public decision making”.
This case also suggests that the Courts will consider what impact the particular policy under challenge will have in deciding what relief to grant, if it finds that the PSE Duty has been breached. The claimants in this case argued that DBIS’ EIA did not sufficiently focus on the impact of the decision on the full range of protected groups. However, the Court emphasised that “there must be some reason to think that the exercise of the functions might in some way relate to a particular aspect of [the PSE Duty] under consideration”. It also commented that “There is no need to enter into time consuming and potentially expensive consultation exercises or monitoring when discrimination issues are plainly not in point”.
In considering decisions, public authorities should first consider whether the PSE Duty is relevant to that decision, and whether an EIA is required. EIAs are not required in all instances but may be engaged in many different situations, such as when a trust or authority is deciding to adopt a new policy, change an existing policy or to take a resourcing decision e.g. to close a hospital or make a change to the delivery of services.
If an EIA is required, public authorities must be able to show that they have complied with the PSE Duty. The Courts continue to attach great importance to such compliance. In this case, the Judge stated that “it will be a very rare case... where a substantial breach of [the PSE Duty] would not lead to a quashing of the relevant decision, however inconvenient that may be”. However, where the public authority can demonstrate that there has been very substantial compliance with the PSE Duty, the decision may be upheld, despite flaws in the EIA.
It remains very important that, where the PSE Duty is engaged, public authorities can demonstrate that they consciously directed their minds to their obligations. Carrying out an EIA, if one is required, is not merely a box-ticking exercise; it is a matter of substance and must be carried out with rigour.