THE PUBLIC SECTOR EQUALITY DUTY Joanne Clement - 11kbw

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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. Joanne Clement, 11KBW t. 020 7632 8500 e. Joanne.Clement@11kbw.com 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 Joanne Clement, 11KBW t. 020 7632 8500 e. Joanne.Clement@11kbw.com 17
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THE PUBLIC SECTOR EQUALITY DUTY Joanne Clement - 11kbw

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