© 2014 Morgan Cole LLPTrusted Advisors, Exemplary People 14 March 2014 Developing Equality? Eve Piffaretti, Partner, Morgan Cole LLP

Trusted Advisors, Exemplary People© 2014 Morgan Cole LLP 2 Outline of session Recap : the general Public Sector Equality Duty The specific Public Sector Equality Duties in Wales Equality Impact Assessment Case law update

Trusted Advisors, Exemplary People© 2014 Morgan Cole LLP 3 General public sector equality duty (PSED) The PSED has three aims and public authorities, in the exercise of their public functions, must have due regard to the need to:  Eliminate discrimination, harassment, victimisation and any other conduct that is prohibited 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

Trusted Advisors, Exemplary People© 2014 Morgan Cole LLP 4 PSED Having due regard means that the three aims of the general duty need to be consciously thought about as part of decision-making processes Consideration of equality issues must influence the decisions you reach including:  How you develop, evaluate and review policy  How you design, reconfigure, procure, deliver and evaluate services  How you commission and procure from others  How you act as employers

Trusted Advisors, Exemplary People© 2014 Morgan Cole LLP 5 Due regard ? Comprises of two elements:  Proportionality  Relevance Give due weight to obligations under the Act in proportion to the relevance of the obligations to a particular decision or function Need to demonstrate that you have had “due regard” Evidence base ?

Trusted Advisors, Exemplary People© 2014 Morgan Cole LLP 6 Specific PSED in Wales Equality Act 2010 (Statutory Duties) (Wales) Regulations 2011 Underpins the general PSED Framework to help public authorities in Wales meet the general PSED An aid to transparency

Trusted Advisors, Exemplary People© 2014 Morgan Cole LLP 7 Equality Impact Assessment Regulation 8 Assess the likely impact of proposed policies and practices on you ability to comply with the general PSED Assess the impact of any policy or practice you have decided to review Monitor the impact Publish an assessment report

Trusted Advisors, Exemplary People© 2014 Morgan Cole LLP 8 Equality Impact Assessment In order to have due regard to the three aims of the general duty, you will need to understand the impact of your policies on equality The assessment must consider the impact that your policies have on eliminating unlawful discrimination, promoting equality of opportunity and fostering good relation The assessment also enables you to show how positive effects can be maximised, and negative effects minimised or eliminated, by modifying policies

Trusted Advisors, Exemplary People© 2014 Morgan Cole LLP 9 Engagement Regulation 5 Ensure that involvement and consultation takes place during the development of equality objectives and when impact assessments are being undertaken Effectively engage and involve individuals that you consider represent the interests of individuals who share one or more of the protected characteristics and who have an interest in the way you carry out your public functions Involve and consult such other people as considered appropriate

Trusted Advisors, Exemplary People© 2014 Morgan Cole LLP 10 Guidance

Trusted Advisors, Exemplary People© 2014 Morgan Cole LLP 11 Case update R (Bracking and others) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345  R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158  R (Bailey) v Brent LBC[ 2011] EWCA 1586  R (Domb) v Hammersmith & Fulham LBC [2009] EWCA Civ 941  R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) (Divisional Court) R (on the application of Hunt) v North Somerset Council[2013] EWCA Civ 1320 R (on the application of Rotherham Metropolitan Borough Council & Anr) v The Secretary of State for Business, Innovation & Skills [2014] EWHC 232 R (on the application of MA and others) v Secretary of State for Work and Pensions [2014] EWCA Civ 13

Trusted Advisors, Exemplary People© 2014 Morgan Cole LLP 12 R (Brown) v Secretary of State for Work and Pensions[ 2008] EWHC 3158 i) The public authority decision maker must be aware of the duty to have “due regard” to the relevant matters; ii) The duty must be fulfilled before and at the time when a particular policy is being considered; iii) The duty must be “exercised in substance, with rigour, and with an open mind”. It is not a question of “ticking boxes”; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument; iv) The duty is non-delegable; and v) Is a continuing one. vi) It is good practice for a decision maker to keep records demonstrating consideration of the duty.

Trusted Advisors, Exemplary People© 2014 Morgan Cole LLP 13 R (Bailey) & R (Domb) R (Bailey) v Brent LBC[ 2011] EWCA 1586 General regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria R (Domb) v Hammersmith & Fulham LBC [2009] EWCA Civ 941 Officials reporting to or advising Ministers/other public authority decision makers, on matters material to the discharge of the duty, must not merely tell the Minister/decision maker what he/she wants to hear but they have to be “rigorous in both enquiring and reporting to them

Trusted Advisors, Exemplary People© 2014 Morgan Cole LLP 14 R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] “ Contrary to a submission advanced…., I do not accept that this means that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then…., it is for the decision maker to decide how much weight should be given to the various factors informing the decision.”

Trusted Advisors, Exemplary People© 2014 Morgan Cole LLP 15 R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] “The concept of 'due regard' requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors. If...submissions on this point were correct, it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making.”

Trusted Advisors, Exemplary People© 2014 Morgan Cole LLP 16 R (Bracking and others) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 “In the end, drawing together the principles and the rival arguments, it seems to me that the 2010 Act imposes a heavy burden upon public authorities in discharging the PSED and in ensuring that there is evidence available, if necessary, to demonstrate that discharge. It seems to have been the intention of Parliament that these considerations of equality of opportunity (where they arise) are now to be placed at the centre of formulation of policy by all public authorities, side by side with all other pressing circumstances of whatever magnitude.”

Trusted Advisors, Exemplary People© 2014 Morgan Cole LLP 17 R (Bracking) (2) It is for this reason that advance consideration has to be given to these issues and they have to be an integral part of the mechanisms of government… There is a need for a “conscious approach” and the duty must be exercised “in substance, with rigour and with an open mind” (per Aikens LJ in Brown). In the absence of evidence of a “structured attempt to focus upon the details of equality issues” (per my Lord, Elias LJ in Hurley & Moore) a decision maker is likely to be in difficulties if his or her subsequent decision is challenged.

Trusted Advisors, Exemplary People© 2014 Morgan Cole LLP 18 R (Bracking)(3) Too much of the Respondent's case depends upon the inferences …rather than upon hard evidence. In my view, there is simply not the evidence, merely in the circumstance of the Minister's position as a Minister for Disabled People and the sketchy references to the impact on ILF fund users by way of possible cuts in the care packages in some cases, to demonstrate to the court that a focussed regard was had to the potentially very grave impact upon individuals in this group of disabled persons, within the context of a consideration of the statutory requirements for disabled people as a whole.

Trusted Advisors, Exemplary People© 2014 Morgan Cole LLP 19 R (on the application of Hunt) v North Somerset Council [2013] EWCA Civ 1320 Whilst they were told how to access the EIAs, they were not told, either expressly or impliedly, that they must or should consider them before the meeting One councillor having read EIAs did not provide any indication as to what all the other councillors did or were likely to have done

Trusted Advisors, Exemplary People© 2014 Morgan Cole LLP 20 R (on the application of Rotherham Metropolitan Borough Council & Anr) v The Secretary of State for Business, Innovation & Skills [2014] “The Defendant has, after the event, carried out an Equality Impact Assessment. This cannot save the decision making. This analysis shows a correlation between funding per capita and disability. Given that the Claimants are, according to the Defendant “hard cases” in terms of the allocation given to them for 2014 – 2020, it seems clear to me that the Defendant should have had “due regard” to the s149(1)(a) and (b) objectives. I therefore find that the Defendant breached the PSED”

Trusted Advisors, Exemplary People© 2014 Morgan Cole LLP 21 R (on the application of MA & others) v Secretary of State for Work and Pensions(2014) confirms R( Bracking) Insufficient for the decision-maker to have a vague awareness of his legal duties. Have a focused awareness of each of the s 149 duties and (in a disability case) their potential impact on the relevant group of disabled persons.

Trusted Advisors, Exemplary People© 2014 Morgan Cole LLP 22 What should be assessed The specific PSED Regulations impose a duty to assess and monitor the impact of ‘policies and practices’ Specific duty to make appropriate arrangements for assessing:  the likely impact of proposed policies  the impact of any policy which is being reviewed  the impact of any proposed revision to a policy Try not to consider each individual policy in isolation Try to co-ordinate your approach

Trusted Advisors, Exemplary People© 2014 Morgan Cole LLP 23 Timing of the assessment Assessment must start early in the process of developing policy or at the early stages of reviewing existing polices For new policies, consider the impact on equality throughout the process of developing the policy Considering equality at the end of the policy development or at the end of the review means you could face legal challenge

Trusted Advisors, Exemplary People© 2014 Morgan Cole LLP 24 Timing of the assessment Give active consideration to equality during your policy development or policy review The assessment is not a tick-box exercise Equality must influence the policy The assessment is not a one-off exercise – circumstances will change over time – the general duty is a continuing duty

Trusted Advisors, Exemplary People© 2014 Morgan Cole LLP 25 Who should carry out the assessment? Assessments are most effective when integrated into day-to- day decision-making A core part of policy making in the same way that resources and risks are considered Equality experts can take a lead, but good practice for all decision-makers to be involved

Trusted Advisors, Exemplary People© 2014 Morgan Cole LLP 26 How to assess impact No prescribed approach – develop your own method However, a good method will:  be integrated into mainstream decision-making  involve senior staff  gather and draw on equality information and the results of engagement ( NB : duty to engage)  ensure timely and informed consideration of the general duty  keep records / evidence of information used and decisions made  consider taking steps to mitigate adverse impacts  state how the actual impact of the policy will be assessed in the future

© 2014 Morgan Cole LLPTrusted Advisors, Exemplary People 14 March 2014 Thank you for listening