THE PUBLIC SECTOR EQUALITY DUTY Joanne Clement - 11kbw

THE PUBLIC SECTOR EQUALITY DUTY 

Joanne Clement 

A. Introduction 

1. Since the Coalition Government came into power, “doing more with less” has become 

a typical catchphrase. Cutting public services, charging for services, or finding a more 

economically attractive way of delivering public services has been a requirement for 

most, if not all, public authorities. 

2. The public sector equality duty (“the PSED”) has been used increasingly by claimants 

seeking to challenge decisions taken by public authorities as to the allocation of 

resources. By and large, this has involved attempts to use essentially procedural 

provisions to challenge substantive decisions about the use of increasingly scarce 

public funds – with mixed results. 

B. The Public Sector Equality Duty 

3. The unified public sector equality duty is now contained in Chapter 1 of Part 11 of the 

Equality Act 2010 (“the EA”). Section 149, which came into force on 5th April 2011, 

provides: 

“(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 matters mentioned in subsection 

(1) 

(3) Having due regard to the need to advance equality of opportunity between 

persons who share a relevant 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 

characteristic that are different from the needs of persons who do not share it; 

Joanne Clement, 11KBW 

t. 020 7632 8500 e. Joanne.Clement@11kbw.com 

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(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 proportionately 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.” 

4. The public sector equality duty thus has three primary limbs, namely the need to: (a) 

eliminate discrimination (in all its forms, including direct and indirect discrimination); (b) 

advance equality of opportunity; and (c) foster good relations between those sharing or 

not sharing protected characteristics. 

5. The equality of opportunity limb encompasses: (a) removed of disadvantage from 

particular groups; (b) meeting the needs of particular groups; and (c) encouraging underrepresented 

groups to participate in public life or other activities. 

6. The fostering good relations limb encompasses: (a) tackling prejudice; and (b) promoting 

understanding. 

7. Section 149 of the EA replaces and augments the previous public sector equality duties 

contained in section 76A of the Sex Discrimination Act 1975 (“the SDA”), section 71 of 

the Race Relations Act 1976 (“the RRA”) and section 49A of the Disability Discrimination 

Act 1995 (“the DDA”). 

8. There are important statements of principle set out by the Court of Appeal and the 

Divisional Court in R (Baker) v Secretary of State for Communities and Local 



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Government [2009] PTSR 809; and R (Brown) v Secretary of State for Work and 

Pensions [2009] PTSR 1506. In Baker, Dyson LJ emphasized that the equality duty is 

about process and not outcome. At paragraph 31, he stated:- 

“In my judgment, it is important to emphasise that the section 71(1) [the 

predecessor PSED under section 71(1) of the Race Relations Act 1976] duty is not 

a duty to achieve a result, namely to eliminate racial discrimination or to promote 

equality of opportunity and good relations between persons of different groups. It is 

a duty to have due regard to the need to achieve these goals. The distinction is 

vital….What is due regard? In my view, it is the regard that is appropriate in all the 

circumstances. These include on the one hand the importance of the areas of life of 

the members of the disadvantaged racial group that are affected by the inequality of 

opportunity and the extent of the inequality, and on the other hand, such 

countervailing factors as are relevant to the function which the decision maker is 

performing.” 

9. In Brown, Aitkens LJ, giving a judgment with which Scott Baker LJ agreed, set out a 

number of guiding principles at paragraphs 90-96, which are now referred to as the “six 

Brown principles:- 

(1) First, those in the public authority who have to take decisions must be made 

aware of their duty to have “due regard” to the identified goals. An incomplete 

or erroneous appreciation of the duties will mean that “due regard” has not 

been given to them; 

(2) Secondly, the “due regard” duty must be fulfilled before and at the time that a 

particular policy that might affect protected groups is being considered by the 

public authority in question. It involves a conscious approach and state of 

mind; 

(3) Thirdly, the duty must be exercised “in substance, with rigour and with an 

open mind”. However the fact that the authority has not mentioned specifically 

the duty in carrying out the particular function is not determinative of whether 

the duty under the statute has been performed. But it is good practice to 

make reference to the provision and any code or other non-statutory 

guidance ; 

(4) Fourthly, the duty is a non-delegable duty. It will always remain on the public 

authority charged with it. In practice, another body may actually carry out the 

practical steps, but the duty to have “due regard” will only be fulfilled by the 

relevant public authority if (a) it appoints a third party that is capable of 

fulfilling the due regard duty; and (2) the public authority maintains a proper 

supervision over the third party to ensure it carries out its due regard duty; 



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(5) Fifthly, the duty is a continuing one; 

(6) Sixthly, it is good practice to keep an adequate record showing that they had 

actually considered their equality duties and pondered relevant questions. If 

records are not kept it may make it more difficult, evidentially, for a public 

authority to persuade a court that it has fulfilled the duty. 

10. The principles set out in Brown have been approved by the Court of Appeal in R 

(Domb) v London Borough of Hammersmith and Fulham [2009] EWCA Civ 941. A 

number of other relevant propositions can be derived from other cases. The current 

position of the law was helpfully summarised by Kenneth Parker J in R (JG and MB) v 

Lancashire County Council [2011] EWHC 2295 (Admin); [2011] BLGR 909 at [43]- 

[44] as follows: 

“43. A number of principles emerge as follows: 

i) The statutory duty under Section 49A DDA is not one to 

achieve a particular substantive result (whether to promote 

equality or otherwise) but to have “due regard” to the need to 

achieve these goals. Due regard is regard that “is appropriate 

in all the circumstances” (Baker at para 31 by Dyson LJ (as he 

then was)). 

ii) The public authority must also pay regard to any 

countervailing factors which, in the context of the function 

being exercised, it is proper and reasonable for the public 

authority to consider. The weight to be given to the 

countervailing factors is a matter for the public authority, not 

the court, unless the assessment by the public authority is 

unreasonable or irrational (Baker at para 34, Brown at para 

82). 

iii) A failure to make explicit reference to the statute does not 

show that the duty has not been performed (Brown at para 

93). It is immaterial whether or not the decision-maker was 

even aware of the duty provided that in substance he had due 

regard to the matters specified in it (Baker at paras 36, 37, 40 

and 46). 

iv) There is no obligation in the DDA to carry out a formal EIA 

(Brown at para 89) although such an EIA is a helpful way of 

demonstrating that the statutory duty has been complied with. 

44. [Counsel for the claimants] laid emphasis on a number of 

other propositions that can be derived from the case law as 

follows: 

i) Due regard must be given “before and at the time that a 

particular policy that will or might affect disabled people is 

being considered by the public authority in question” (Brown 

at para 91). 

ii) Due regard to the duty must be “an essential preliminary” to 

any important policy decision not a “rearguard action following 



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a concluded decision” (R (BAPIO Action Limited) v SSHD 

[2007] EWCA Civ 1139 at para 3 by Sedley LJ). 

iii) Put another way, consideration of the duty must be “an 

integral part of the formulation of a proposed policy, not 

justification for its adoption” (R (Kaur) and others v Ealing LBC 

[2008] EWHC 2062 (Admin) at para 24 by Moses J (as he 

then was)). 

iv) “Due regard” means specific regard by way of conscious 

approach to the specified needs (R (Meany) v Harlow District 

Council [2009] EWHC 559 (Admin) at para 74; R (Boyejo) v 

Barnet LBC [2009] EWHC 3261 (Admin) at para 58). 

v) If a risk of adverse impact is identified consideration should be 

given to measures to avoid that impact before fixing on a 

particular solution (Kaur at para 44).” 

11. In this paper, I examine:- 

(1) The time at which the PSED must be discharged – i.e. what does the 

“formative stage” mean? 

(2) How the courts have applied the PSED in a number of different contexts, 

including 

(i) budget setting; 

(ii) cuts in universal services, or charges for universal services; 

(iii) cuts in services targeted at particular protected groups; 

(iv) decisions taken in respect of individuals in the discharge of 

specific statutory duties. 

C. Duty discharged at a “Formative Stage” 

12. The duty under section 149(1) is a duty imposed on a public authority “…in the 

exercise of its functions”. In R (Kaur) v London Borough of Ealing [2008] EWHC 

2062, Moses LJ paraphrased this requirement as a duty that applied when the local 

authority “was formulating” its proposals. This has subsequently been described as 

requiring the due regard to be had “at the formative stage”. 

13. In R (Bailey) v London Borough of Brent [2011] EWCA Civ 1586, the Claimant argued 

that the local authority had failed to discharge the duty at a formative stage. It was 

said that there had been a failure to consider the PSED “throughout” the procedure 

leading up to the decision because a proposal that six specified libraries should be 

closed had been tabled before an EIA had been conducted. 



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14. At first instance (in R (Bailey) v London Borough of Brent [2011] EWHC 2572 

(Admin)) the Judge gave this submission short shrift. He referred to the statutory 

language used in section 149(1), and concluded that the PSED had to be discharged 

at the time at which the Council exercised its functions. The point at which the 

Council exercised its library functions was the point at which they took the decision to 

close six libraries. At paragraph 122, he stated:- 

 “The formative stage at which the duty must be performed, in the sense 

meant by the guidance and decisions, is not one or all of the earlier stages 

when the officers or Council are contemplating and working up various 

options. It must be performed before the decision is made and be part of the 

decision-making process, rather than as a justification for the decision after it 

has been taken. The issue has to be addressed in the exercise of the 

functions, using the statutory language rather than judicial exegesis. The 

point at which the Council here exercised its functions under s.7 was when it 

decided, at the April 2011 meeting, that the LTP should proceed, including 

the six closures ....”   

15. Ouseley J held that the issue was very much bound up with the contention that the 

Council approached the issue of equality and closures in April 2011 with a closed 

mind. He concluded that there was no evidence to support that contention. The EIA 

was a conscientious and thorough effort to grapple with the duty in section 149, in 

substance and with rigour. It set out to answer the relevant questions which library 

closures give rise to in relation to the equality duty. He concluded that the EIA was 

genuinely “a core part of the decision-making process”. It could not fairly be said that 

the decision to close six libraries had already been taken. 

16. The Equality and Human Rights Commission intervened before the Court of Appeal 

to make written submissions on this issue. The EHRC argued that the PSED applied 

at each stage of a decision-making process, and could not be “put to one side” 

pending an ultimate decision as to the adoption of a policy. It was argued that if a 

policy had been closely formulated without the duty being addressed, there was a 

real risk that any consideration would be too late to secure effective compliance. 

17. The Court of Appeal unanimously agreed that the Council had exercised its functions 

with due regard to the requirements under section 149. However, they retreated 

somewhat from the Judge’s conclusion that, so long as an EIA was produced before 

the ultimate decision was taken, that was sufficient to discharge the duty. 

(1) Pill LJ stated that it was not necessary for an EIA to be conducted before 

the formulation of the proposals on which the public were to be consulted 

(paragraph 84). He accepted that the Council had had section 149 

properly in mind from an early stage, and for that reason had decided to 



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carry out a full EIA for consideration, together with the results of the 

consultation. He dismissed the argument that the Council had put the 

relevant requirements to one side until the ultimate decision was taken. 

The Council had had regard to the PSED as “an integral part of the 

decision-making process” (see paragraph 84). 

(2) Davis LJ recognized that there cannot necessarily be easy identification 

of particular formative “stages” in every decision making process. 

However, it was unreal to require a “comprehensive scrutiny” (whatever 

that may mean) at every moment throughout the process. Precisely what 

consideration is due can and will vary from time to time during the 

process. An ultimate assessment will need to be made as to whether, 

overall, “due regard” had been given. 

(3) Davis LJ stated that to the extent that the Judge may at one stage in his 

judgment have indicated that a full EIA will always suffice provided only 

that it is produced prior to the decision finally being made that “may” be 

going too far. It is necessary that consideration of the duty “properly 

informs” the decision-making process before the ultimate decision is 

made. He left open the possibility that there may be cases, as the EHRC 

Guidance warns, where the very late and unheralded production of an 

EIA immediately prior to a final scheduled meeting may, depending on 

the circumstances, not suffice to discharge the duty (see paragraph 104). 

(4) In the present case, Davis LJ concluded that officers of the Council were 

plainly aware from the outset of, and they consulted as to, potential 

equality issues. Diversity implications and the need for an EIA had been 

noted at the outset, before the consultation on the proposals had begun. 

The requirements of the PSED were throughout in mind. The EIA was a 

thorough document, which was then properly considered by the Council 

before the actual decision was made. It could not be said that the PSED 

had been “put on one side pending the ultimate decision”. 

(5) Richards LJ agreed with both judgments. 

18. Where does that leave public authorities? If it is obvious that a proposal is likely to 

have equality implications, that should be recorded at an early stage. If it is obvious 

that a full EIA is going to be carried out, that should also be recorded at an early 

stage. If a consultation exercise is going to be embarked upon, that consultation 

should ask any questions necessary to ensure that the public authority has as much 



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information as possible about any potential equalities issues (and if that information is 

not already available to the public authority, it may need to consult just to obtain that 

information). If a full and detailed EIA is then produced and considered before the 

decision under challenge is taken, that will be sufficient to discharge the duty. 

D. Challenges to Budgets 

19. Attempts have been made to challenge decisions to adopt the overall budget for 

central and local government on the basis that there was a failure to comply with the 

PSED. The Courts have been reluctant to entertain such challenges. 

(i) Challenge to central Government budget 

20. In R (Fawcett Society) v Chancellor of the Exchequer & others [2010] EWHC 3522 

(Admin) Ouseley J refused to grant the Fawcett Society permission to judicially 

review the Coalition Government’s 2010 Emergency Budget on the grounds that the 

Chancellor had failed to comply with s.76A of the Sex Discrimination Act 1975. The 

criticism was that the Chancellor had failed to carry out a gender EIA of the Budget 

when it was proposed. 

21. The first part of the challenge focussed on the whole Budget and the public spending 

envelope which set departmental spending limits. No EIA had been produced that 

evaluated the potential impact on gender in respect of the budget. The Court 

accepted that the provisions of section 76A of the Sex Discrimination Act were in 

principle broad enough to apply to government action such as the preparation and 

presentation of the Budget, including public expenditure limits. Such actions would 

now clearly fall within section 149 of the 2010 Act. 

22. The Government argued that it was appropriate and legitimate to decide that the 

impact of the provisions of the Budget on gender equality objectives should be dealt 

with by reference to the impact of the various specific individual items within the 

Budget rather than on an overall basis. The claimant argued that this approach was 

unlawful, because it would cause the cumulative effect of the Budget on equality of 

opportunity to be ignored. Ouseley J accepted the Government’s submission that the 

varied measures, differing in nature, introduced or flagged in the Budget made impact 

assessment of the Budget as a whole inappropriate: 

“...if the analysis of gender equality impacts can adequately be 

undertaken by consideration of the line items in the Budget, the 

duty is fulfilled or rather not breached by its being dealt with in 

that way at that stage. For my part, I cannot see any reason why 



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the government is acting unlawfully if that is the way in which it 

proposes to deal with gender equality issues on the Budget.” [8]. 

23. So far as setting the departmental spending envelope was concerned, no door had 

been irretrievably closed, and a departmental budget would inevitably have 

considerable scope for the reallocation of monies within it. It was lawful to consider 

the impact of particular measures in advance of specific implementation. 

24. Criticism was also made of the lack of EIA in respect of specific budget items (such 

as the increase in VAT). As to some of these, the Government conceded that more 

should have been done but the Judge accepted that, those matters now having been 

enacted in legislation, the challenge in respect of them was academic (see [11] and 

[12]). As to others, the Government had formed the view that an EIA would be carried 

out at a later point when the policy was more fully developed. Ouseley J said that that 

judgement having been rational, there was no basis for holding the absence of EIA 

unlawful at the earlier stage ([15]). So this is a helpful case for central government in 

its relatively generous approach as to the latitude it has to determine when an 

assessment of equality impact is required. 1 

25. The Court also emphasized the need for any challenge to budget setting to be 

brought expeditiously. It was obviously imperative that the public and corporate world 

(individual and foreign) had certainty about the budgetary affairs of the United 

Kingdom. The original proceedings to quash the Budget were started some five 

weeks after the Budget, and after some of the measures had been passed into 

legislation. What is “prompt” in this context is likely to be very short indeed. 

(ii) Challenges to budget setting by local authorities 

26. There have been a number of challenges to the budgets set by local authorities, 

which have been equally unsuccessful. 

1 On 25th November 2010, the Equality and Human Rights Commission (“the EHRC”) 

announced that it would assess formally, under s.31 of the Equality Act 2006 the extent to 

which HM Treasury complied with the duties when considering the impact of the decisions 

contained in the Spending Review on protected characteristics. This is described on the 

EHRC’s website as follows: “The assessment is an opportunity for the Commission to 

continue its ongoing constructive work with HM Treasury to evaluate what steps it has 

undertaken to comply with the legislation and identify any potential opportunities for 

improvement and any lessons to be learnt across Government to improve outcomes for 

protected groups by putting fairness and transparency at the heart of difficult decisions.” The 

terms of reference were settled on 12 th January 2011. The EHRC has obtained evidence from 

HM Treasury and representations from nine outside bodies. Oral evidence was received 

during May and June 2011. The EHRC intended to report its findings in the Autumn, so that it 

could be taken into account in the preparations for the 2012 budget. To date, the EHRC has 

not published its report. 



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27. In R (JG and MB) v Lancashire County Council [2011] EWHC 2295 (Admin), the 

claimants challenged the decision of full council to approve revenue budget proposals 

for three years, including a budget limit for adult social care services. The budget 

included two policy proposals – first, a policy to raise the eligibility threshold for 

access to adult social care services, and second, a policy to change how it charged 

for such services. The budget decision was taken at a meeting in February 2011. The 

approval by full council was to be subject to further consideration by the Cabinet 

Member. In March 2011 the Cabinet Member for Adult and Community Services 

approved policies in the budget including to raise eligibility thresholds for access to 

adult social care from “moderate” to “substantial” or “critical” (as assessed under 

FACS). 

28. The claimants argued that there had been a breach of the PSED because at the time 

the initial budget decision was taken, there had been no detailed assessment of the 

likely impact of the budget decision on the affected users of the relevant services. 

Kenneth Parker J rejected the challenge (relying on the protected characteristic of 

disability) in relation to the full council’s budget decision for essentially the following 

reasons (see [48]-[51]): 

(1) It was clear to those involved in approving the budget that disabled people would 

be adversely affected by budget reductions to adult social services. The potential 

impact was specifically identified for further investigation, and as part of that 

investigation there was put in train a series of consultations. 

(2) The approval of the Council’s overall budget did not constitute a final decision 

about what the Council’s policies would be or even about what sum of money 

would, in fact, be saved under each of the service proposals. It was obvious to 

the Council’s Members that the proposal to change the social care threshold 

would be implemented only after due regard had been paid to the need to 

promote equality of opportunity and to take steps to take account of disabled 

person’s disabilities. 

(3) The reality was that the decision-maker had taken a preliminary decision in 

relation to its budget, fully aware that the implementation of proposed policies 

would be likely to have an impact on the affected users, but had not committed 

itself to the implementation of specific policies within the budget framework until it 

had carried out a full and detailed assessment of the likely impact. There was 

nothing wrong, in principle, with such an approach and nothing inconsistent with 

the duties under the DDA. 



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(4) By parity of reasoning with Fawcett Society it was sensible, and lawful, for the 

Council first to formulate its budget proposals and then, at the time of developing 

the policies that were now under challenge, to consider the specific impact of 

policies that might be implemented under the budget framework. 

29. A further challenge to a local authority’s budget was heard earlier this year in the 

case of R (D and S) v Manchester City Council [2012] EWHC 17 (Admin). The 

claimants challenged the local authority’s budget decision, which had reduced the 

budget for adult social care by £17 million over the next two years, as a result of the 

financial constraints placed upon the authority. It was argued that the decision had 

been taken without due regard to the disability equality duty contained in section 49A 

of the DDA. 

30. Ryder J dismissed the claim. The local authority had had the statutory duties in mind. 

The budget was constructed following a pre-budget consultation that led to a 

framework and principles whose overt aim was to safeguard those in greatest need 

and to provide sufficient resources to effectively safeguard and protect the most 

vulnerable. Monies were identified for that purpose. It was recognised that further 

consultation and equality impact assessments were required and that decisions by 

the executive would be needed. This might require the use of resources additional to 

those budgeted for, from reserves if necessary. The local authority recognised the 

need for an analysis of the impact of the budget cuts which it acknowledged would 

have to be taken into account. 

31. The Court held that this was a proper and lawful budget strategy, which took into 

account a pre-budget consultation. To the extent that the budget decision relied upon 

contingency planning and the identification of reserves to meet statutory obligations, 

it was a strategy based on good budgeting practice and local authority governance. 

At paragraph 59, the Court stated:- 

“Good governance demands that a budget is not only an estimate of planned 

spending, it is also a projection based upon foreseeable risks which includes 

a contingency for uncertainties. Where risk assessments are incomplete or 

inchoate and/or financial circumstances are such that predictions are 

necessarily less certain, the contingency becomes all the more important. 

Here it was crucial. Were this not to be the case, budgets of many public 

bodies would be impugned by the erroneous elision of uncertainty with 

unfairness and/or illegality. That is not in any way to suggest that the public 

sector equality duty or its predecessor do not apply to budgetary decisions: 

they categorically do, but where flexibility is built into the budget so that 

subsequent corporate decisions and decisions relating to individuals can still 

lawfully be made by reference to the potential impact of the proposals on the 

persons affected then it is possible for the duty to be complied with i.e. there 



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is nothing wrong in principle with such an approach and nothing inconsistent 

with the duties under the DDA 1995 or the EA 2010. 

32. No EIA had been conducted at the budget stage, but there was no statutory duty to 

carry out a formal EIA. The Court concluded that the Council had clearly had due 

regard to the needs of disabled people when setting the budget. The Council had 

recognized the need for an analysis of the impact, which it acknowledged would have 

be taken into account at a later date. It put in place a strategic response – i.e. a 

contingency fund and guarantees as to how an individual’s needs would still be met – 

and procedural and substantive protections for those affected. That amounted to 

consideration of the impact which was consistent with the need to have due regard 

and was a consideration of substance, not mere form: it involved a commitment, if 

necessary, of real money. 

33. Even if the claim had had merit, the Court would still have refused relief. If any relief 

were to be granted in respect of the Council’s budget calculation, as a matter of law, 

it must be quashed. This would invalidate the council tax which had been set, and 

would incur additional costs in the re-calculation and re-setting of the tax and reissuing 

tax demands. There was clear evidence that there was no realistic prospect 

that the Council would set a higher council tax, with the obvious implication that any 

relief which quashed the same would only have the effect of reducing the resources 

available. Ryder J concluded that invalidating the council tax for the year would be 

disproportionate, contrary to the public interest and would serve no intelligible 

purpose: see paragraph 85. 

E. Universal Services 

34. The next area to consider is how the courts have approached the PSED in relation to 

cuts or charges to services that are available to all. Challenges have typically alleged 

that the public authority has not exercised the PSED in substance and with rigour (the 

third Brown principle). 

35. In considering the impact of cuts or charges to such services, a public authority will 

need to consider:- 

(1) whether the proposal affects a particular protected group in a specific 

way over and above any impact on other groups in the community; and 

(2) whether the proposal has a disproportionate impact on a particular 

protected group, i.e. whether there is an obvious risk of indirect 

discrimination through “tainting by numbers”. 



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36. It is absolutely critical in this area that the public authority fully and fairly identifies the 

likely impact on protected groups. As the duty is simply a duty to have due regard to 

the various equality needs, if an adverse impact is identified, the public authority may 

still proceed with the proposal. But what a public authority must ensure is that it is 

fully aware of the likely impact on the equality needs set out in the PSED before it 

takes the decision. If an EIA does not identify obvious negative impacts, the courts 

are likely to find that the authority has not complied with the PSED. 

37. One such universal service is a library service offered by library authorities to all 

those who live, work and study in their area. When considering library closures, there 

are certain obvious ways in which protected groups may be particularly affected. For 

example, the disabled and the elderly may find it more difficult to get to the next 

nearest library. Very young children, who use libraries for reading groups/toddler 

groups may be affected. School pupils who use the library for study spaces may be 

affected. The public authority must consider the nature and extent of these likely 

effects, and any ways in which they can be mitigated. The main mitigation in this 

context concerned (i) accessibility of alternative libraries; (ii) the improved services on 

offer at the alternative libraries; and (iii) use of a home visits/outreach service to 

provide facilities to those who could not access an alternative library building. 

38. In Bailey, the claimants put forward two main arguments to contend that the Council 

had not complied with the “substance” of the PSED. First, it was said that it was 

unlawful for the Council not to carry out an assessment of the relative equality 

impacts of other courses of action which the Council had not put forward for 

consultation as its preferred option, such as keeping libraries open for fewer hours, or 

closing other libraries, or community involvement. Secondly, it was argued that the 

EIA did consider what the claimants termed the “obvious risk” of indirect 

discrimination. 

39. At first instance, Ouseley J dismissed both arguments. He held that the duty in 

section 149 can be performed by focusing on the effect of the decision or policy 

which is proposed, and there was no obligation to analyse in equalities terms the 

whole range of possible options (paragraphs 129-130). He also held that there was 

no evidence of a risk of indirect discrimination, to demonstrate that the Council had 

failed to discharge the PSED by failing to have regard to it. 

40. Before the Court of Appeal, the main ground of appeal was that the Council had 

breached section 149(1) of the 2010 Act by failing to have due regard to the risk of 



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indirect discrimination against Asian residents of the borough. The Court of Appeal 

unanimously dismissed the appeal. 

41. The definition of indirect discrimination is found in section 19 of the Equality Act 2010 

(copy attached). In short, indirect discrimination arises if a public authority applies a 

neutral provision, criterion or practice to everyone, but which (i) places a group of 

people sharing a protected characteristic at a particular disadvantage when 

compared with persons who are not part of that protected group; and (ii) which 

cannot be objectively justified. 

42. On the indirect discrimination point, the Court held that:- 

(1) First, a decision to close libraries was capable of being a “provision, 

criterion or practice” within the meaning of section 19 of the 2010 Act; 

(2) Secondly, there is no need for there to be an intrinsic link between the 

relevant protected characteristic (in this case, race) and the particular 

disadvantage suffered. It is possible to establish indirect discrimination by 

comparing the proportion of Asians adversely affected by the proposal 

with the proportion of non-Asians so affected. If the statistics reveal 

Asians are placed at a “particular disadvantage” when compared to non- 

Asians, a prima facie case of indirect discrimination will be made out. 

(3) Thirdly, it was not enough to establish a risk of indirect discrimination 

against Asians to demonstrate that they were the most numerically 

disadvantaged – that followed from the fact that they were the largest 

ethnic group amongst the users of Brent libraries. The appropriate “pool” 

for indirect discrimination purposes was library users, rather than a pool 

comprising the entire population of the borough (the vast majority of 

whom did not use library services). If that pool was used, the statistics 

did not support any claim that there was indirect discrimination. The 

Asian users of the libraries were not proportionately more disadvantaged 

than non-Asians. 76% of Asian users and 76% of non-Asian users use 

the libraries that remain and 24% of Asian users and 24% of non Asian 

users use the libraries that will close. 

43. The Court also noted that the possibility of discrimination, direct or indirect, against 

the Asian community or Asian library users never really featured in the evidence filed 

by the claimants or in objections made before the Council’s decision. The point about 

indirect discrimination had been used as a collateral means of achieving the desired 



14

esult, i.e. quashing the decision. He described the appellants’ argument on section 

149 of the Equality Act 2010 as being “artificial and wrong” (paragraph 89, 97). The 

Court of Appeal upheld the finding of Ouseley J to the effect that the EIA was 

informed and through and addressed the relevant issues in substance and with 

rigour. The EIA had itself expressly drawn attention at the outset, in general terms, to 

a likelihood of a differential impact on a group on grounds of ethnicity. The statistics 

lent no support to the appellant’s case. There was no obvious risk of indirect 

discrimination otherwise arising requiring any greater consideration than was already 

evidenced in the April Report to members and the equality impact assessment. 

44. Davis LJ concluded by emphasising the importance of complying with section 149. 

However, in a case where the Council was fully apprised of its duty under section 149 

and had the benefit of a most careful Report and EIA, Davis LJ concluded that an “air 

of unreality” had descended over this line of attack. Councils cannot be expected to 

speculate on or to investigate or to explore such matters ad infinitum; nor can they be 

expected to apply, indeed they are to be discouraged from applying, the degree of 

forensic analysis for the purpose of an EIA and of consideration of their duties under 

section 149 which a QC might deploy in court. In situations where hard choices have 

to be made, the judge recognised that to accede to the approach urged by the 

appellants would be to make effective decision making on the part of local authorities 

and other public bodies unduly and unreasonably onerous (see paragraph 102).   

45. In the second libraries case – that of R (Green) v Gloucester County Council [2011] 

EWHC 2687 (Admin), the Claimant succeeded in establishing a breach of the PSED. 

The Court was critical of the first EIA that concluded that the library closure proposal 

would have a neutral impact on protected groups. The second EIA identified only one 

potential negative impact in respect of the removal of mobile libraries. There was no 

consideration of the potential impact of the closure of static library buildings or the 

reduction in opening hours. For example, there was no analysis of whether disabled 

people had particular needs, or whether they might be less likely to access another 

library. The court concluded that both authorities should have undertaken a 

sufficiently thorough information gathering exercise and then properly analysed that 

information. They had failed to do so (paragraph 131). 

46. Also of note is the recent decision of the Divisional Court in the challenge to the 

decision to increase tuition fees – R (Hurley and Moore) v Secretary of State for 

Business, Innovation and Skills [2012] EWHC 201 (Admin). The Claimant challenged 

the regulations that implemented the increase in tuition fees on the basis that the 

Secretary of State had failed to have regard to, in particular, the duty contained in 

section 71(1) of the Race Relations Act 1976. Essentially, the Claimant argued that 



15

that the increase in tuition fees would have a significant affect on the sociallydisadvantaged, 

making them less likely to go to university. As ethnic minorities were 

disproportionately represented in this group, the increase in tuition fees gave rise to a 

risk of indirect discrimination. 

47. The Secretary of State relied on impact assessments prepared before the 

Regulations were made which drew on the extensive material gathered as part of the 

year long Browne Review into the future funding of higher education. The 

assessments concluded that taking the whole of the reforms together, they ought not 

adversely to affect individuals form the lower socio-economic backgrounds 

disproportionately. 

48. The Divisional Court concluded that:- 

(1) The Secretaryof State had made a judgment as to the potential effect of 

the policies in the light of the available evidence. That judgment was 

made in good faith and was not irrational. 

(2) It was fanciful to suggest that there was no analysis of the relevant 

evidence. The central feature of the Browne Review had been to focus 

on ways in which the socially disadvantaged could be encouraged to 

participate in higher education; 

(3) It was hopeless to say that the duty had not been complied with because 

it was possible to point to one or other pieces of evidence which might be 

considered relevant which were not specifically identified in the EIA. 

(4) It was necessary to consider what impact the increase in fees would 

have. There is no basis to suggest that the imposition of fees at the 

proposed level would discriminate directly against any of the protected 

groups. The effect, if there be any, will be indirect. The obvious reason 

why minority protected groups might be adversely affected - and indeed, 

apart from the interest problem for some Islamic students, in all likelihood 

the only way - is because they are disproportionately economically 

disadvantaged. If they are not disadvantaged in that way, there is no 

reason to suppose that they will be disproportionately affected at all. The 

Secretary of State engaged fully with the implications for the 

economically disadvantaged. and therefore with the adverse impact on 

minority groups On any view, therefore, there had been “very substantial 

compliance” with the PSED. 



16

(5) However, at paragraph 96, Elias LJ went on to state that if there was 

“any doubt” about whether a particular statutory objective is engaged, the 

issue needs to be explored before any conclusion can be safely reached 

that it is not. Insofar as the EIA purported to focus on the full package of 

reforms then under consideration and not merely the decision to increase 

fees, I cannot be sure that this has been done. I cannot discount the 

possibility that a more precise focus on the specific statutory duties might 

have led to the conclusion that some other requirements were potentially 

engaged and merited considerations…”  

(6) He “therefore conclude[d] that the Secretary of State did not carry out the 

rigorous attention to the PSEDs which he was obliged to do”, but was 

“satisfied that he did give proper consideration to those particular aspects 

of the duty which related to the principle of levying fees and the amounts 

of those fees”. Since the challenge was directed against the Regulations 

which increased fees, it is surprising that he concluded that the PSED 

had been breached at all. In any event, he held that it was not 

appropriate to quash the Regulations, and restricted relief to a 

declaration. 

E. Cuts to Services Targeted at Protected Groups 

49. A number of cases have considered cuts made to services targeted towards 

protected groups. The Courts have been more willing to interfere in this area and to 

quash the decisions made. Two recent examples involving Birmingham City Council 

illustrate this approach. 

50. R (Rahman) v Birmingham City Council [2011] EWHC 944 (Admin) concerned the 

termination by the council of funding to legal entitlement advice services supplied 

from centres run by voluntary agencies. The centres provided advice to minority 

ethnic communities and the physically and mentally disabled. A consultant’s report 

had recommended moving away from provision on a single ethnicity or single 

interest group basis. When the first decision was taken by the council’s Cabinet on 29 

November 2010, the EIA which had been produced was not available to the decisionmakers. 

When the claimants instituted proceedings the council realised this omission 

and held a further meeting on 14 March 2011 at which members were asked to 

reaffirm their decision in the light of the EIA. The members were specifically reminded 

to approach the decision with an open mind. 

51. The claimants were either disabled or members of minority ethnic communities (or 

both). It was common ground that the decision would have a disadvantageous effect 



17

on members of protected groups. Unsurprisingly Blake J held that the first decision 

was unlawful as the equality duties had not been complied with as there was no 

evidence that each of the decision-makers were aware of the duty and how it was 

engaged [32]-[33]. 

52. When the decision was re-taken with the benefit of the EIA, Blake J found that the 

duties had still not been properly discharged as the EIA was defective, having 

focused upon the advantages to be derived from a new policy rather than the degree 

of disadvantage to existing users of terminating funding arrangements until new 

arrangements could be put in place [35(1)]. He also found that the EIA had not been 

based on adequate consultation and consultation was particularly important where 

the council relied on a user survey which did not provide the relevant information 

[35(2)-(3)]. The expectation of consultation was also enhanced by communications 

suggesting that service users would be involved in commissioning [35(6)]. Blake J 

also held that the statutory equality duties require due regard to be had to the 

statutory need, not simply to the EIA, and decision-makers need to have due regard 

to all the evidence of prejudice and what might reasonably be done to mitigate it, 

even if that material is not in the EIA [35(7)]. It was “striking” that the case for 

continuing the existing service, at least in some areas where no alternatives existed, 

was never put in the reports before members or the decisions [36]. The Judge further 

pointed out that the fact that it is for a public authority to determine the weight to 

attach to countervailing factors can only be of assistance to a defendant where they 

have complied with the duty to have due regard to the statutory needs (see [37]). 

53. Blake J provided something of a warning to local authorities hoping to rely on the 

inherent difficulty of the decisions facing them [46]: 

“…Even where the context of decision making is financial resources in a 

tight budget, that does not excuse compliance with the PSEDs and indeed 

there is much to be said for the proposition that even in the straightened 

times the need for clear, well-informed decision making when assessing 

the impacts on less advantaged members of society is as great, if not 

greater. In general terms I consider the advice recently issued in nonstatutory 

guidance by the Equality and Human Rights Commission ("Using 

the equality duties to make fair financial decisions") to be of assistance to 

decision makers such as this defendant in the no doubt very difficult 

decisions that have to be taken in this field…” 

54. The second Birmingham case is R (W) v Birmingham City Council [2011] EWHC 

1147 (Admin), (2011) 120 BMLR 134. In a voluminous 100 page judgment Walker J 

granted judicial review of the council’s decision to alter its eligibility threshold for adult 

social care from “substantial” to “critical” (as assessed using the FACS guidance). 

55. In December 2010 the council had issued a consultation document on the future of 

adult social services. The consultation period was to run until 2 March 2011. Option 2 



18

in the consultation document included the proposal to limit eligibility to those with 

critical care needs. There was criticism by a number of the consultees of a lack of 

clarity in how the council worded the proposal. On 1 March 2011 the full council met 

and decided to adopt the Business Plan 2011+. In an appendix to the Business Plan 

was set out much of Option 2 from the consultation document. On. A corporate EIA 

and an EIA for Adult and Community Services were available as background papers. 

On 14 March 2011 a meeting of the council’s Cabinet approved a report 

recommending the adoption of Option 2. 

56. The claimants were severely disabled persons. They challenged the decisions of the 

full council and the Cabinet alleging failure to comply with s.49A of the DDA. Once 

again the legal principles (which Walker J summarised at [151]) were not in dispute – 

the issue was their application to the facts. 

57. The council’s case was that that the claimants were trying to mount a micro level 

challenge to what were high level, macro decisions. It also submitted that it was 

unreal to suggest that the council was not aware of the equality impacts of the 

decisions being contemplated as the impacts were “inherently obvious”. 

58. On the central issue of the so-called ‘move to “critical only”’, Walker J rejected these 

arguments for, essentially the following reasons [176]-[183]: 

a. It was not the role of the court to get involved in minute scrutiny of a mass of 

detail and the proposed move to “critical only” involved a “macro decision”. 

b. Analysis of all that was done by the council in the period from November 

2010 onwards showed that the council did not, in any real sense, refine and 

focus what in November 2010 was necessarily a “high level and generalised” 

description of the likely impact of moving to “critical only”. It was difficult to 

see how, in the circumstances of the present case, “due regard” could be 

paid to the matters identified in DDA, s.49A without some attempt at 

assessment of the practical impact on those whose needs in a particular 

respect fell into the “substantial” band but not into the “critical” band. 

c. The decision to consult “on broad options” required consideration of a 

subsidiary question whether to go beyond generalities in assessing the likely 

impact of the proposed course upon individuals with “substantial” needs. At 

the very least in order to pay “due regard” the council, when deciding to 

consult “on broad options”, needed to consider whether its answer to the 

subsidiary question was consistent with its duty under s.49A. 



19

d. Throughout the process the council was giving consideration to how to 

address the needs of the disabled. In that sense its decisions taken in 

relation to adult social care were decisions which were relevant to its 

performance of the s.49A duty. But that is not the same thing as doing what 

s.49A seeks to ensure: namely to consider the impact of a proposed decision 

and ask whether a decision with that potential impact would be consistent 

with the need to pay due regard to the principles of disability equality. 

e. Conspicuously absent from the material before Cabinet was any express 

statement that Cabinet must consider whether s.49A required it to take the 

course of ensuring further spending resources were allocated to Adult and 

Community Services, in particular because of the potential severity of the 

impact of the proposed move to “critical only.” 

f. There was a failure by the council on 1 March 2011 and Cabinet on 14 March 

2011 to focus on the questions required to be asked and so the decisions of 

1 and 14 March 2011 on the proposals for adult social care were unlawful. 

g. There was not in the material prepared for the meetings any assessment of 

the extent to which such mitigating factors as were mentioned would or would 

not reduce the potential severity of the proposed move to “critical only”. In the 

EIAs, if members had consulted them, neither the analysis nor the suggested 

action plans attempted to examine what the actual impact of the move to 

“critical only” would be or how it would be affected by mitigating measures. 

Had members appreciated the need to consider the right questions, they 

would not have had the wherewithal to answer it. 

59. In R (Greenwich Community Law Centre) v Greenwich LBC [2011] EWHC 3463 

(Admin), the Administrative Court (Cranston J) dismissed a challenge by a leading 

law centre to the decision by Greenwich Council to withdraw its funding of around 

£200,000 per year. The law centre provided services to vulnerable clients who fell 

within the protected groups. The Council's decision followed a tender process for 

funding for legal services, which resulted in awards to four of five previously funded 

organisations but not to Greenwich CLC. 

60. The High Court held that where a tender process for the award of third sector funding 

had been designed with the statutory equality duties in mind, and was intended to 

result in the award of funding to the organisations submitting the tenders best suited 

to the Council's requirements, there was no obligation to conduct a further equalities 



20

assessment before making funding awards. The Council had conducted an equality 

impact assessment in March 2011 in advance of its decision not to award funding for 

legal advice services and instead to conduct a fresh commissioning round. It paid due 

regard in substance to its equalities duties under the Equality Act 2010 by remaining 

faithful to the focus on priority groups in the tendering exercise. There was no need 

for a further equality impact assessment with regard to the outcome since the logic of 

the tender process meant that performance of the duty was integral to the outcome. 

Selection of the winning tenders would inevitably pay due regard to the equalities 

objectives. No new or different equalities considerations arose. 

61. This decision is currently on appeal to the Court of Appeal on these issues, together 

with a new point, which is that the Council’s decision to award funding to other 

agencies instead of the appellant had been flawed because there had been no 

express consideration of the needs of 5 of the 8 protected characteristics: gender 

reassignment; pregnancy; religion or belief; sex; and sexual orientation. 

F. Individual Decisions 

62. The courts are wary of the artificially “tacked on” claim in respect of the PSED, 

particularly where a claim is brought on behalf of an individual for alleged breaches of 

substantive rights. Thus in R (MS) v Oldham MBC [2010] EWHC 802 (Admin), 

Langstaff J said, in the context of a local authority‟s assessment of a child‟s special 

needs (at [20]): 

“ ... I would deprecate any statement of principle which required a court in 

any case involving a disabled claimant seeking provision from a local 

authority to the effect that the local authority would have to minute and record 

in part of its paperwork the fact that it had regard to each or any of the six 

specific matters set out in section 49A. If it were to do so it would risk 

reducing to a mantra what ought to be a matter of central substance in the 

local authority’s behaviour. That does not mean that a court may not enquire 

into the matter, and where it looks at first blush as though the local authority 

may not have had regard to such matters the court would plainly be helped 

by such documentation as there is: but it does not require, in my view, 

another tick box to be ticked for the sake of it, nor for wording to be adopted 

purely in defence of potential but unfounded claims for review.” 

63. The claim under the DDA did not add anything of substance to the claim as otherwise 

advance under community care legislation. 

64. This approach has been endorsed by the Supreme Court in R (Mcdonald) v 

Kensington and Chelsea [2011] UKSC 33, where Lord Brown stated that the 

appellant’s argument based on the PSED was hopeless. Where a person is disabled 

and the public authority is discharging its functions under statutes which expressly 

direct their attention to the needs of disabled persons, it may be entirely superfluous 



21

to make express reference to the PSED and absurd to infer from an omission to do 

so a failure on the authority's part to have regard to their general duty under the 

section. The question is one of substance, not of form. 

Joanne Clement 

March 2012 



22

THE PUBLIC SECTOR EQUALITY DUTY Joanne Clement - 11kbw

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