Equalities and Decision-Making: Understanding the Law and Recent Cases

2. Equalities and Decision-Making The law changes over time e.g. with decisions in cases taken to court. This presentation is for use on 12 Jan 2012. It is based on a training session given by Anthony Collins Solicitors 21 Dec 2011 at NBC.

3. What this session will cover • Outline of legal duties • Some recent cases • A chance to think about specific case studies

4. What are our duties? • Equality Act 2010 • Other laws may also apply

5. Public Sector Equality Duty – Equality Act 2010 • “a public authority must, in the exercise of its functions, have due regard…” • This applies also to “a person who is not a public authority but who exercises public functions” in the exercise of those functions e.g. a company. • Specific duties: including to publish information to show compliance by 31 Jan 2012 and then annually

6. Best Value Statutory Guidance • The public sector equality duty still applies • “Under the Duty of Best Value,… authorities should consider overall value, including economic, environmental and social value, when reviewing service provision. As a concept, social value is about seeking to maximise the additional benefit that can be created by procuring or commissioning goods and services above and beyond the benefit of merely the goods and services themselves.”

7. Best Value Statutory Guidance 2011 • Duty to consult voluntary and community groups and small businesses. The Northampton Forums networks may be helpful here. • “This should apply at all stages of the commissioning cycle, including when considering the decommissioning of services. In the interests of economy and efficiency, it is not necessary for authorities to undertake lifestyle or diversity questionnaires of suppliers or residents” • the public sector equality duty still applies

8. Localism Act: general power of competence • “gives local authorities the legal capacity to do anything that an individual can do that is not specifically prohibited” (section 1(1) is the starting point) • the public sector equality duty still applies

9. Equalities Act – why does it matter? • Failure to satisfy the equality duty can lead to enforcement action by the Equalities and Human Rights Commission • Assessment • Intervention • Agreement • Compliance notice

10. Impact of the Act • Increasing number of judicial review cases against councils • expensive to fight • expensive to lose (pay both sides costs; £30K upwards) • damaging to reputation • takes people away from doing their jobs • Existing case law under previous equality duties

11. The general equality duty • S149(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”

12. Somerset & Glos County Councils: libraries - due regard • Dec 2011: plans to cut funding for libraries halted, opening hours reinstated, the mobile library service being reinstated • Nov 2011: judge rules that Somerset and Gloucestershire county councils failed to take account of their "equalities duties" when pushing through plans to close libraries: for more than a year campaigners had been "pointing to the disproportionate effect that the cuts would have on disadvantaged groups such as the elderly, single mothers and the disabled". • the judge said equality duties "impose important and onerous burdens on public authorities…In carrying out all of their functions they must have due regard to the statutory equality needs. In my judgment, on the preponderance of the evidence, no such due regard was had in substance…In order to discharge their respective duties Gloucestershire County Council (GCC) and Somerset County Council (SCC) should have undertaken a sufficiently thorough information gathering exercise and then properly analysed that information.”

13. London Borough of Brent – libraries – Court of Appeal • judges sided with the council: it chose to shut down libraries • Lord Justice Pill said: "Given the scale of the spending reductions the council was required to make, and the information available following earlier studies, a decision that the library service should bear a share of the reduction was not, in my judgement, unlawful." • 'Full consultation' He said there was "no doubt" that the council was aware of its statutory duties. Lord Justice Pill added that a "full consultation was conducted and fully reported to the decision-makers"

14. London Councils – grants cuts – High Court • Feb 2011: Judge quashed £16.5m cut to London voluntary sector grants programme • Mr Justice Calvert-Smith ruled London Councils' decision was flawed and ordered it to run fresh consultation with full impact equality assessments. • The judge ruled the original exercise failed to meet statutory equality duties. • London Councils did not consider the full effect of the cuts on the hundreds of voluntary sector groups and tens of thousands of members of the public who would be affected

15. Birmingham City Council: care - High Court - May 2011 • the council acted unlawfully in deciding to cut provision of care for disabled people. Mr Justice Walker said councils had to take account of people's disabilities, even where that involved treating disabled persons more favourably than others. He said there had been a failure to take proper account of the duty to promote equality under laws on disability and discrimination. He found that, when setting its budget and altering its eligibility policy, Birmingham had not given proper consideration to the impact on disabled people and had failed to adequately consult on its proposals. The issue the council needed to address was "whether the impact on the disabled of the move to critical only was so serious that an alternative which was not so draconian should be identified and funded to the extent necessary by savings elsewhere". • Birmingham council had failed to ask the right questions and councillors were not given the right information to answer those questions. Essential information on the plans was either unclear or only provided at a very late stage. The judge said the consultation "had not involved any attempt to look at the practical detail of what the move to critical only would entail". • The council said it would rerun the consultation and make fresh decisions on adult social care in accordance with the ruling.

16. Southall Black Sisters v Ealing: failure to do EIA • The case followed Ealing Council's attempt to introduce a generic borough-wide service for all victims of domestic violence, a move that threatened the future of SBS' service for black and minority ethnic (BME) women in Ealing. • SBS took Ealing Council to the High Court for failing in its race relation duties • Ealing went about this the wrong way procedurally and without properly carrying out its legal duty to carry out an equality impact assessment

17. “Due regard” – a key concept • in substance • “with vigour” • based on sufficient information • with proper analysis • “tick-box” equality impact assessment is not OK • just saying “equality duty is not applicable” is not OK • just saying “all with be affected equally” is not OK

18. “Due regard” explained (s149(3)) • have due regard, in particular, to the need to… • Remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic • Take steps to meet the needs of people from protected groups (where different from others’ needs) • Encourage people from protected groups to participate in public life or in other activities where their participation is disproportionately low

19. Protected Characteristics – s149(7) • Sometimes talked about as ‘groups’ • Replaces ‘equality strands’ • For the public sector equality duty: • Gender reassignment • Race • Age • Sex • Pregnancy and Maternity • Sexual Orientation • Religion or belief • Disability

20. “Foster good relations” (s149(5) and (6)) • Tackling prejudice • Promoting understanding between people of different groups • may mean treating some groups more favourably than others • Note: close relationship to preventing and tackling hate crime, reducing crime and disorder, promoting integration and community cohesion. This is about understanding, involving, engaging and building relationships with protected groups.

21. “Discrimination” • To treat a person or group of people less favourably due to a particular protected characteristic

22. Case studies to practice decision-making • In each case, please come to a decision you can justify on whether you would decide to • Go ahead: make no major change (the policy/practice is robust and there is no discrimination) • Adjust the policy or practice • Continue the policy or practice (you believe that though there is some adverse effect there is no unlawful discrimination) • Stop and remove the policy or practice; or • Take some other form of action

23. Case Study: Proposal to Extend Club Opening Hours • You are a councillor. • You are asked to approve a proposal to adopt a policy to encourage nightclubs and bars across the Borough to stay open later – to bring increased revenue to the area. • The equalities impact assessment says that detailed consultation is not necessary because it is clear that opening hours affect all people equally.

24. Suggested response: Take some other form of action • Consider • The duty to promote good relations via the policy? • Is the type of crime risk the same for all groups? • Might the hours affect different groups differently? • Ask the Police about crime. • In Northampton the central area action plan consultation shows older people fear areas associated with late drinking • There is law-making in progress to tackle the late night economy because it does have different impacts on different groups

25. Case Study: Missing Equality Impact Assessment • You are a Cabinet Member • You are asked to approve a proposal to reduce the budget for the community transport service. • There is some consideration of equality issues, but no separate equality impact assessment. • A fellow Cabinet Member suggests that the paperwork needs to be immediately sent back to the relevant officer so that a full EIA can be carried out.

26. Suggested response • If the council has a policy that there should be at least an EIA screening done then it should follow its policy • If there is no such policy, then consider whether the due regard is robust enough –there still needs to be evidence, even if the assessment or analysis has not been done on an EIA form. • An EIA screening may show that there is no need to do a full EIA

27. Case Study: changes to several policies • You are at a meeting. • The Agenda has separate items. Each is a separate proposal you are asked to approve. Each proposal is to change a different policy. The policies are: funding and delivery of social care, day care and respite for carers. • Each policy proposal has a full and detailed equalities impact assessment attached to it. Each EIA concludes that there may be some small disadvantage to disabled people.

28. Suggested response • The policies are interlinked, so due regard should be had to the impacts of making all the changes. This might be by an over-arching EIA. The individual EIAs are not sufficient. • Is there any way to do things differently? To share the pain across a wider group? Or is there really no choice? • The key is to show due regard to minimise the risk, whatever decision you come to – even if you feel you’ve no choice but to do something unpopular, you’ve shown you’ve worked through your duties. Even so, people may challenge you – because they can. Recent legal cases in the High Court have been about the need to show due regard – not necessarily the decision taken itself.

29. Case study: late night meeting • You are a Cabinet Member. It’s been a long night and it’s nearly the end of the meeting. The last main item on the agenda is a proposal to cut the libraries budget. An EIA has been carried out. It concludes that “although any reduction to the library service currently provided would certainly be regrettable, there are no equalities issues here since all people will be equally affected by any closures or reduced opening hours.”

30. Suggested response • Always be wary if you see “all people will be affected equally” or “no equalities issues here” especially where the person has not written down their reasons for coming to this conclusion. Often – as in this case – the reasoning is wrong. • Impacts could potentially be more on elderly and disabled people e.g. if they are faced with further travel to access a library • There is a risk the courts will overturn decisions based on the sort of unjustified reasoning stated here. EIA authors need to show due regard (the EIA should set out facts, evidence sources and capture the critical thought process).

31. Case Study: Change of policy on council fridges • You are faced with a proposal to change the frequency with which checks are done to ensure fridges on council premises are working properly. The EIA is almost blank and has “not applicable” written against most parts of it. But it does say there are no equalities issues as “all fridges will be treated equally”.

32. Suggested response • Equalities assessment or analysis should be about people not fridges. • Might there be any disruption e.g. insulin access during the time checks are being carried out? • NB: when faced with proposals about capital projects, look for potential impacts during periods work is to be undertaken. • There still needs to be something on paper to show that the officers have had due regard to the council’s equality duties.

33. Keeping things in Proportion • The public sector equality duty is about being proportionate – taking into account the size, resources, functions and importance of the policy or practice • Includes externally-developed policies/practices • Going too far – or doing too little - could be disproportionate and inappropriate.

34. Being proportionate: assessment and analysis • The EHRC guides people to: • Identify who is responsible for the EIA • Establish relevance to equality • Scope the EIA • Analyse your equalities information • Monitor and review how things are working • Decision-making and publication

35. Who is responsible for doing the right thing? • EIA needs to be an integral part of policy/practice development, not an add on, not just left till the end. It should inform the development • Decision-maker and their advisers have responsibility • There is no escape: outsourced services, trusts, contracts, partnership and commissioning – the council still has the equality duty (and ideally should say so in contracts to help it hold others to account).

36. Relevance: Risk Assessment • High risk: changes to service delivery, making cuts • Low risk: changes and decisions affecting things rather than people • It is not always easy to judge. There are no guarantees. You cannot rely on a corporate risk approach. Instead, you need to show due regard to your equality duties – show you have thought about the impacts of your decisions/proposals. • Unpopular decisions can still be made.

37. Risk assessment: questions to help • What will be the impact on service users/employees? • Are the functions important to particular protected groups? • Different impact on different protected groups? • Area of known inequalities (nationally/locally)? • Area for which you have set equality objectives? • If not relevant to equalities then this must be documented clearly with reasons.

38. Scope • How do the aims of the policy/practice relate to equalities? (purpose/context/beneficiaries/outcomes) • Which aspects have particular relevance? • Which protected groups/parts of the equality duty? • What information is available? What gaps in it? • Which groups can you engage with? • The Northampton Forums networks are important to talk with, often at an early stage, developing EIA from the start to help inform the proposals that go out to wider consultation.

39. Assessment/Analysis • What will happen if we do things this way? • What will not happen if we do things this way? • Be wary of vague proposals. • Be wary of general and unjustified conclusions (“all affected equally”; “not relevant to equalities”; “equality duty – not applicable”) • Look for how proposals promote equality as well as for how they might help to eliminate discrimination.

40. Come to a conclusion/decision • EIA should help you come to a view: • No major change • Adjust • Continue • Stop (and remove) • The EIA should be documented (and published). • Your decision should be documented (and published).

41. Decision-making and publication • Ensure that decision-making shows due regard to the legal duties • Consider when and how to publish the decision.

42. Monitor and Review • Ongoing process • How will the impacts be measured? • When will the policy/practice be reviewed? • Who will monitor/review it? • What information is needed/how often? • How can you engage stakeholders in the process? • Officers should consider using the Northampton Forums networks to help: people and groups who are happy to help, usually at no cost - informally, online, by phone and face to face. These networks cover all the protected characteristics.

43. What you should expect from officers • The officers should prepare good quality evidence for councillors to help them to make decisions • The officers should actively remind the councillors of their legal duties.

44. What should be expected from councillors • Councillors should not just ‘rubber stamp’ the EIA • Councillors should actively consider the EIA with regard to the legal duties • Councillors should feel confident to ask for more information or further EIA if they feel that it is necessary e.g. if they feel that the combined impact of several proposals might lead to discrimination which has not been considered.

45. Talking to People as part of EIA • This should include • Service providers • Service users • Groups that might be affected • Anyone else who might have useful information • NB: officers can access ‘equalities challenge’ from colleagues, Forums networks etc. Officers can often access national and other information via the web where they do not have service-specific information. The equality web pages have some links to help them.

46. It’s about people not red tape or bureaucracy • The key is to comply with the legal duties. = the key is to consider the impacts on people AND to be able to prove you have done so. • The duties are NOT about completing any one document, form or getting people to tick boxes on a consultation survey, however good that form might be, or whatever that form might be called.

47. Further information • www.northampton.gov.uk/equality • Lindsey Ambrose, Community Engagement and Equalities Officer lambrose@northampton.gov.uk or 0779 53 33 687