FREE CHAPTER from ‘A Practical Guide to the Public Sector Equality Duty in Housing’ by Nick Bano

CHAPTER ONE – PRELIMINARY POINTS

1.1 The current duty in context

The Public Sector Equality Duty is contained in section 149 of the Equality Act 2010. The 2010 Act collated and expanded the scope of three similar duties that had been specific to race, disability and sex legislation: section 71 of the Race Relations Act 1976; section 49A of the Disability Discrimination Act 1975; and section 76A of the Sex Discrimination Act 1975.

When the Equality Bill 2009 was introduced, those three duties had only been inserted relatively recently¹. The Race Relations Act duty had been created earliest, in 2000, as a method of implementing the recommendations of the 1999 Macpherson Inquiry into the murder of Stephen Lawrence, which contained the first official acknowledgment of institutional racism in the Metropolitan Police². The intention was to move away from a system of reactive ‘fault-based’ liability, and towards a proactive obligation on public authorities to identify and remedy structural disadvantages³. It seems that there was then a desire throughout the early 2000s to roll out that Race Relations Act model more widely, first to disability and sex, and then across the board. The 2009 Equality Bill, which contained the first generalised PSED, was large and complex, and was one of the last acts of the Blair/Brown governments: it gained Royal Assent less than a month before the 2010 general election.

It contained a new Public Sector Equality Duty under section 149: a single duty, which applies to all public functions right across the eight protected characteristics listed in sub-section 149(7). It came into force on 5^th April 2011⁴. However, from the outset, the courts continued to apply the older jurisprudence relating to the predecessor duties⁵, and the pre-2011 cases are still frequently cited.

1.2 The duty

Section 149 of the Equality Act 2010 provides that:

“Public sector equality duty

(1) A public authority must, in the exercise of its functions, have due regard to the need to—

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).

(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;

(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities.

(5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

(a) tackle prejudice, and

(b) promote understanding.

(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.

(7) The relevant protected characteristics are—

• age;

• disability;

• gender reassignment;

• pregnancy and maternity;

• race;

• religion or belief;

• sex;

• sexual orientation.

(8) A reference to conduct that is prohibited by or under this Act includes a reference to—

(a) a breach of an equality clause or rule;

(b) a breach of a non-discrimination rule.

(9) Schedule 18 (exceptions) has effect”.

Sub-sections (1)(a)-(c) contain the three ‘equality aims’. These are the ultimate objectives that the PSED seeks to encourage local authorities to work towards achieving. The way that the PSED works is that it obliges public authorities to have ‘due regard’ to the need to meet those three equality aims. This is quite a convoluted, soft turn of phrase, but happily for practitioners the courts have used more concrete and precise language to describe compliance with this duty, as we shall see throughout this book. To cite, for the moment, just one of the many judicial statements describing the purpose of the duty: the Court of Appeal has said that the PSED ‘is designed to secure the brighter illumination of a person’s disability so that, to the extent that it bears upon his rights under other laws, it attracts a full appraisal’⁶.

Sub-section (2) contains an expanded definition of the concept of ‘the functions of a public authority’, which includes any public functions carried out by a body which is not itself a public authority. Possession proceedings and allocations decisions brought or made by registered social landlords are, depending on the circumstances such as the size of the landlord’s stock, likely to constitute public functions⁷.

Sub-sections (3) to (6) set out the specific ways in which public authorities are required to carry out the general ‘due regard’ duty contained in sub-section (1). Sub-section (7) then contains the relevant protected characteristics (see 1.3 below).

Importantly, section 149 does not amend any other legislative provisions. It does not grant any new powers to public authorities, or even modify any existing ones, but it complements or enhances the way in which public authorities carry out their functions. For example, the PSED does not suddenly require local authorities to accommodate a person with a disability who would not otherwise be entitled to housing. Instead, where there is a pre-existing matter of discretion or evaluative judgment for a local authority, or where it is preparing a policy or taking a nuanced decision, the PSED will feed into the way in which the decision is reached, or possibly merely alert the authority to the existence of underlying disadvantages facing protected groups. The intended effect is that the decision will then be taken with the need to achieve the ‘equality aims’ well in mind.

The PSED applies in England, Wales and Scotland. There have (to date) been no amendments to the legislation, although paragraph 2 of Schedule 18 to the 2010 Act modifies the application of section 149 in the context of immigration enforcement, which is of little relevance to housing practitioners (except in accommodation challenges relating to support for migrants and asylum seekers).

1.3 The protected characteristics

Section 4 of the Equality Act 2010 lists nine protected characteristics, but the PSED only applies to only eight of them: marriage & civil partnership is excluded from section 149’s protection. The relevant characteristics are therefore:

• age;

• disability;

• gender reassignment;

• pregnancy and maternity;

• race;

• religion or belief;

• sex;

• sexual orientation.

The relevant protected characteristics are also treated differently within section 149 itself. Sub-section (4) applies specifically to disability. The effect is that, when a public authority is complying with sub-section 3(b) in a disability case, it must take account of the person’s disabilities. It is difficult to see how this would make a significant difference in practice, given the courts’ repeated emphasis on the need for a ‘sharp focus’ on disability when complying with the PSED more generally. However, there may be room for public authorities to argue that some of the jurisprudence relating to disability is derived from sub-section (4), and is not, therefore, of more general application.

Apart from sub-section (4) – and although certain protected characteristics, in certain contexts, may call for greater attention – there is no formal ‘hierarchy’ of the PSED’s protected characteristics⁸. In other words, while there is (strictly speaking) always a need to comply with the PSED, in many contexts a breach will simply be immaterial, but this is determined by the facts and not by the legislation itself. For example, it would probably be superfluous to insist on strict compliance with the PSED with regards to sex in a straightforward homelessness suitability case, in which sex plays no role on the facts of the case, but that is a matter of factual materiality rather than legislative technicality.

1.4 Process duty

The PSED is what is known as a ‘process duty’⁹. A PSED challenge is an attack upon the way in which a decision has been reached, rather than a direct attack upon the decision itself. Of course, a litigant alleging a breach of the PSED will generally have the objective of seeing the relevant decision quashed, but the courts have repeatedly said that the PSED is ‘not a duty to achieve a particular result’¹⁰. It cannot be over-emphasised that a PSED point involves challenging the process, rather than the outcome, of a public authority’s decision.

But that does not, of course, mean that the PSED is any less serious. As the Court of Appeal has noted: ‘Public law is often concerned with the process by which a decision is taken and not with the substance of that decision’ and its nature as a process duty does not diminish its importance. Instead, in common with other process duties, the PSED helps to ensure good, lawful public administration, and in particular ‘helps to reassure members of the public, whatever their race or sex, that their interests have been properly taken into account before policies are formulated or brought into effect’¹¹.

1.5 Not a cause of action

Section 156 of the Equality Act 2010 specifically establishes that a breach of the PSED ‘does not confer a cause of action at private law’¹². This means that the PSED cannot be pleaded as a counter-claim in possession proceedings: it only works as a public law-type defence. It also means that – since it has been established that the County Court does not have jurisdiction to entertain discrimination challenges in statutory homelessness appeals¹³ – the PSED could not be pleaded in any separate private law discrimination challenge brought against a local housing authority. In other words, for housing law purposes, the PSED may only form part of a defence to a possession claim, grounds for judicial review, or grounds of appeal in a statutory homelessness challenge.

1.6 A context-specific duty

In a social housing possession case, the Court of Appeal has pointed out that the PSED authorities are derived from many different types of challenge across all sorts of areas of public law: those authorities ‘have to be taken in their context’, and the duty’s ‘application will differ from case to case, depending upon the function being exercised and the facts of the case’¹⁴. It would be wrong, for example, for a court to conclude that a landlord considering an individual tenant’s eviction should be required to comply with the PSED in exactly the same way as a minister deciding an issue of national policy. Practitioners should therefore be wary about borrowing one of the enormous number of dicta and statements of the law concerning the PSED, and seeking to cite in in a totally different context. Throughout this book, where propositions of law are stated, attempts have been made to ensure that a context-specific citation has been given.

1.7 Importance of the duty

Leading judges have stressed the importance of PSED-type duties as an instrument in guarding against discrimination¹⁵. The importance of the PSED is such that the United Kingdom government emphasises the duty in its submissions to international bodies¹⁶. Notionally, at least, the duty is of the greatest importance – although there has been extensive judicial consideration of the materiality of established breaches of the PSED, as we shall see throughout this book.

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