Analysis: Does the PSED apply to individual community care decisions?

February 26th, 2016

The public sector equality duty (PSED), arising under section 149 of the Equality Act 2010, is the saviour of many otherwise doomed judicial reviews, and the bane of defendants who thought they had all bases covered. It would seem to make little sense to have to undertake an equality impact assessment (EIA) for every exercise of a Care Act function relating to an individual, e.g. every provision / budget decision for individuals, or every individual adult safeguarding decision. And let’s face it, no social worker does an EIA with every Care Act assessment. But how precisely do we explain this in legal terms?  I raise this because I have had two community care judicial reviews recently where this point has been taken, and the issue did not end up being dealt with expressly in the judgments. So here is my attempt to set the matter straight.

At first blush there is a problem. Section 149 applies to a “public authority … in the exercise of its functions”. “Functions” is interpreted broadly: Pieretti v LB Enfield [2010] EWCA Civ 1104, para 26. A local authority making an individual budget decision, or an individual adult safeguarding decision, is plainly exercising a function. To be specific, these are functions pursuant to the Care Act 2014, sections 18-19 (meeting needs) and 42 (safeguarding). So how do you square common sense and universal practice (of not doing EIAs for every Care Act assessment), with the words on the page of the statute? Here is my five step guide, with thanks to my colleague Andrew Sharland for his thoughts on the matter –

STEP 1: “due regard” to achieving the various statutory objectives in section 149 means regard that is “appropriate in all the circumstances”: R (Brown) v SSWP [2008] EWHC 3158 (Admin), applied in this specific context of community care assessments by Lord Brown in R (McDonald) v RB Kensington and Chelsea [2011] UKSC 33, paras 23-24.

As suggested in R (Bailey) v LB Brent [2011] EWCA Civ 1586, paras 39-40, 102, the PSED involves consideration that is reasonable and proportionate in the circumstances. It does not involve considering every possible ramification.

STEP 2: There is no requirement to do an EIA in order to comply with section 149: Brown (above), para 89. It is not necessary to make express reference to section 149 in order to have complied with it by having regard to the statutory objectives. Compare, e.g., R (Baker) v SSLCG [2008] EWCA Civ 141, paras 36-40, where the planning inspector was not aware of the equality duties then in force, but as a result of planning policy requiring her to pay particular attention to the needs of gypsies (which she was aware of and directed her mind to), she had regard to achieving the statutory objectives. This is consistent with comments by Lord Brown in McDonald para 24, which comments were made in the specific community care context we are here considering.

Though admittedly, this is somewhat at odds with references in the case-law to the need for “conscious” consideration of the statutory objectives, and awareness of the statutory duty: R (Brown) (above), para 90; R (Harris) v LB Haringey [2010] EWCA Civ 703, para 9; Bailey (above), para 74.

STEP 3: The provision of a service to a disabled and / or elderly person, which improves that person’s life and makes the person less disadvantaged compared to persons not sharing that protected characteristic, is of itself a means of having regard to at least some of the statutory objectives, such as equality of opportunity and elimination of discrimination suffered.

STEP 4: Reference may also be made to cases beyond community care, to the effect that where the exercise of a function is one designed to confer a benefit on the protected group, the PSED is unlikely to be of any material relevance. E.g. R (Cordant) v BIS [2010] EWHC 3442 (Admin), para 67, where it was said that although there was much citation of PSED cases to the court, in all those cases the protected groups were adversely affected by the impugned measure, whereas here the Secretary of State here “intended to confer material benefit on, and to remove discrimination as between, workers who fell within the relevant group”. Another example is R (Rajput and Shamji) v LB Waltham Forest; R (Tiller) v East Sussex CC [2011] EWCA Civ 1577, where Rimer LJ at para 39 quoted the passage from McDonald, and held that, while it would have been good practice to make an express reference to the equality duty (which had not been done), the local authorities had nevertheless substantially complied with the duty because the decisions “exclusively concerned with the interests of elderly and disabled people”.

STEP 5: Finally, a limit or note of caution: the above analysis relates to decisions taken in relation to an individual. Where you are concerned with a policy decision that potentially adversely impacts a large number of people, the level of regard needed is necessarily higher, as there may be a wide range of potential impacts, many of which may not at first appear to be obvious, and thus more careful consideration may be needed: R (Harjula) v London Councils [2011] EWHC 448 (Admin), para 69.

Jonathan Auburn

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