Public Sector Equality Duty

February 12th, 2014 by James Goudie KC

PSED claims continue to be pursued.  In R (Rotherham MBC and others) v SoS for BIS (2014) EWHC 232 (Admin) the claim succeeded (paras 84-93 inc): (i) there is no duty to carry out a formal EqIA; (ii) the duty is at most to consider undertaking an EqIA, along with other means of gathering information, and to consider whether it is appropriate to have an EqIA; (iii) the requirement is to have “due regard” to the statutory requirements in s149(1) of the Equality Act 2010; (iv) that is regard that is “appropriate in all the circumstances”; and (v) if an authority’s decision is a high level budget decision a PSED may be carried out “further down the line”; BUT (vi) the decisions in this case were “in no sense preliminary or provisional”; and (vii) an after the event assessment “cannot save the decision making”.  This was an instance of a PSED challenge succeeding where other challenges (to the Regional allocation of EU Structural Funds) failed.  In R (Unison) v Lord Chancellor [2014] EWHC 218 (Admin) all the challenges (to ET and EAT fees) failed, including (paras 57-69) PSED and (paras 70-90 inc) indirect discrimination, failed, notwithstanding that it is a “continuing duty”; “the … importance of the duty”, and the facts that the duty is “an essential preliminary to public decision-making”, is not a matter of ticking boxes, and “must be undertaken conscientiously and with rigour”, and that the authority “must collect, collate and consider all relevant information as to the likely impact of the proposals”.  However, “the weight to be given to countervailing factors is a matter for the assessment of the public authority and not for the Court, unless that assessment can be challenged on conventional public law grounds as being outwith the range of reasonable conclusions”; and “it is for the public authority to decide what is relevant and irrelevant, subject only to challenge on conventional grounds”; and an authority “cannot be expected to speculate, investigate or explore matters ad infinitum” or “to make assessments with a degree of forensic analysis which a QC might deploy in Court”.  The Divisional Court approved the summary of the principles applicable to the s149 duty by Wilkie J in R (Williams) v Surrey County Council [2012] EqLR 656 at para 16.  It could not be maintained that the Lord Chancellor did not consider the differential impact on groups with various protected characteristics merely because he dismissed those concerns.  Any defects in his conclusions which triggered a public law remedy should be dealt with in the substantive grounds of challenge, and not by way of criticism of the lengthy and detailed review undertaken in the assessment before the conclusions were reached.


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