In the midst of major reductions in public spending, public authorities in Britain are being forced to make tough decisions to restrict services in response to the pressing need to cut their spending - they do so in a way that may well have an adverse impact on particular groups in society.
It is against the backdrop that the public sector equality duty comes into sharper focus; there is a tension between the need to make savings and for public authorities to demonstrate that they are making such decisions in a fair, transparent and accountable way, considering the needs and rights of different members of society.
That tension and the need to balance competing demands has seen a dramatic rise in the number of judicial review cases brought against the decisions of public authorities based on breaches of the public sector equality duty.
The public sector equality duty consists of a general equality duty and specific duties which are imposed by secondary legislation. The purpose of the specific duties is to help public authorities comply with the general equality duty, by improving the focus and transparency of activity to meet the duty.
A key concept under the equality duty is the (potential) impact of decisions on protected groups by reference to the protected characteristics under the Act. Unless a public authority has some idea about the (likely) impact of proposed decisions on the protected groups it will be impossible to demonstrate that the authority had ‘due regard’ to the relevant equality considerations.
Many services are targeted at or primarily used by particular groups, and the duty focuses on the impact of decisions on particular groups.
The Balancing Exercise
Traditionally the courts have resisted interfering in decisions made by democratically elected representatives in relation to large and complex questions of resource allocation which involve the balancing of competing needs.
However, the tension between the duty and making difficult financial decisions and a change in judicial thinking has been illustrated in a number of recent cases. Those cases illustrate that the requirement imposed by the public sector equality duty is to demonstrate conscientious consideration for the needs of those with protected characteristics.
The courts will continue to defer to public authorities on the substance of those difficult decisions, but only if it can be demonstrated that the decisions were made after strict compliance with the public sector equality duty.
The duty and the recent court decisions emphasise the need to conduct a fair, transparent and comprehensive review of the decision making processes.
- Effective and fair consultations & engagement is key to ensuring compliance with the duty whilst making decisions to cut or restrict services.
- The specific requirements of the public sector equality duty must be known to and addressed by the decision-makers.
- A proper, detailed analysis of the issues and supporting information is essential. Evidence of active consideration of the duty should be recorded in order to establish that it took place and that the relevant decision-makers had given due regard to the issues. To read an impact assessment by itself does not equate to an application of the statutory duty.
- Keep matters under review – make arrangements to monitor the impact of decisions as they are implemented and set milestones to review policies.
- By being open and transparent about the issue and considerations, an authority will be in a better position to ensure decisions are robust.
- Finally, if you can’t do all that’s required then do something – do what you can fit into the time and resources available.