Public Sector Equality Duty ‘PSED’

April 25th, 2012 by James Goudie KC

In R (Greenwich Community Law Centre) v Greenwich LBC [2012] EWCA Civ 496 the Court of Appeal held that the Council had had “due regard to the PSED when making changes to its funding of community legal advice services”.  At para 30 Elias LJ said:

“I would emphasise the need for the court to ask whether as a matter of substance there has been compliance; it is not a tick box exercise.  At the same time the courts must ensure that they do not micro-manage the exercise. Furthermore,, … it is only if a characteristic or combination of characteristics is likely to arise in the exercise of the public function that they need be taken into consideration. I would only add the qualification that there may be cases where that possibility exists in which case there may be a need for further investigation before that characteristic can be ignored. …”

At para 35 Elias LJ said:

“The purpose of the duty is to require consideration of equality implications at the time policy is drafted. The fact that it is a continuing duty does not mean that there has to be further detailed consideration when the general framework is made concrete, or whenever there are minor changes of detail. It would make administration intolerable and grossly inefficient if every aspect of policy left to officers’ discretion had automatically to be returned for further consideration of the equality implications.”

Legitimate Expectation

On whether there is a substantive legitimate expectation on the basis of a representation made by a public authority, see R (Godfrey) v Southwark LBC [2012] EWCA Civ 500.  Pill LJ said:

“51.      A rigorous standard is to be applied when a substantive legitimate expectation is claimed on the basis of a representation or promise by a public authority. The duty of public authorities to exercise powers in the public interest must be kept in mind. Only when, in the court’s view, to fail to give effect to the promise would be so unfair as to amount to an abuse of power, should it override other considerations …

52.       While the approach to legitimate expectation must be fact sensitive, … an earlier approach of the local planning authority to an issue, even if amounting to a planning policy, cannot have primacy over the statutory duty of the council to assess the current situation.”


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