THE PUBLIC SECTOR EQUALITY DUTY Joanne Clement - 11kbw

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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”. Joanne Clement, 11KBW t. 020 7632 8500 e. Joanne.Clement@11kbw.com 12
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 Joanne Clement, 11KBW t. 020 7632 8500 e. Joanne.Clement@11kbw.com 13
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THE PUBLIC SECTOR EQUALITY DUTY Joanne Clement - 11kbw

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