The Public Sector Equality Duty and the Councils housing function

Kerryn Woollett

by Kerryn Woollett, Senior Solicitor

Section 149 of the Equality Act 2010 (“the Act”) sets out the Public Sector Equality Duty (PSED). It requires public authorities, in the exercise of their functions, to have due regard to the need to:

  1. eliminate discrimination, harassment, victimisation and any other conduct prohibited by the Act;
  2. advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and
  3. foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

“Public Authorities” are listed in Schedule 19 of the Act, and this list includes “A county council, district council or parish council in England”.

Therefore, the Council must have due regard to the PSED whenever it exercises its functions. This is particularly important when considering enforcement action. The Council has a range of enforcement functions from licensing (for example revoking a taxi driver’s licence), to environmental health/protection (for example issuing an abatement notice) to community safety (for example issuing a community protection notice). This note relates to the Council’s housing function (for example seeking possession) though the practical steps (see later) can be implemented when carrying out any enforcement function.

There are nine Protected Characteristics (s.4 of the Act), these are:

– age;

– disability;

– gender reassignment;

– marriage and civil partnership;

– pregnancy and maternity;

– race;

– religion or belief;

– sex; and

– sexual orientation.

The Protected Characteristic that arises most commonly for District Council’s in possession cases is disability.

S.149 does not dictate a certain result. Therefore, it is important to remember that the PSED is about processes not about outcomes. However, s.149 also doesn’t prescribe the process, therefore, what the Council needs to be able to do is shows that there has been rigorous consideration of the duty.

Turner J in London and Quadrant Housing Trust v Patrick [2019] EWHC 1263 (QB) provided a helpful summary of what the duty involves in possession proceedings:

Application of the PSED

(i)  When a public sector landlord is contemplating taking or enforcing possession proceedings in circumstances in which a disabled person is liable to be affected by such decision, it is subject to the PSED.

Nature and scope of the PSED

(ii)  The PSED is not a duty to achieve a result but a duty to have due regard to the need to achieve the results identified in section 149. Thus when considering what is due regard, the public sector landlord must weigh the factors relevant to promoting the objects of the section against any material countervailing factors. In housing cases, such countervailing factors may include, for example, the impact which the disabled person’s behaviour, in so far as is material to the decision in question, is having upon others (e.g. through drug dealing or other anti-social behaviour). The PSED is “designed to secure the brighter illumination of a person’s disability so that, to the extent that it bears upon his rights under other laws it attracts a full appraisal”.

Making inquires

(iii)  The public sector landlord is not required in every case to take active steps to inquire into whether the person subject to its decision is disabled and, if so, is disabled in a way relevant to the decision. Where, however, some feature or features of the information available to the decision maker raises a real possibility that this might be the case then a duty to make further enquiry arises.

The importance of substance over form

(iv)  The PSED must be exercised in substance, with rigour and with an open mind and should not be reduced to no more than a “tick-box” exercise.

Continuing nature of the duty

(v)  The PSED is a continuing one and is thus not discharged once and for all at any particular stage of the decision making process. Thus the requirement to fulfil the PSED does not elapse even after a possession order (whether on mandatory or discretionary grounds) is granted and before it has been enforced. However, the PSED consequences of enforcing an order ought already to have been adequately considered by the decision maker before the order is sought and, in most cases, in the absence of any material change in circumstances (which circumstances may include the decision maker’s state of knowledge of the disability), the continuing nature of the duty will not mandate further explicit reconsideration.

The timing of formal consideration of the PSED

(vi)  Generally, the public sector landlord must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before seeking and enforcing possession and not merely as a “rear-guard action” following a concluded decision. However, cases will arise in which the landlord initially neither knew nor ought reasonably to have known of any relevant disability. The duty to “have due regard” will then only take on any substance when the disability becomes or ought to have become apparent. In such cases, the lateness of the knowledge may impact on the discharge of the PSED. For example, cases may arise in which countervailing interests justify a less formal PSED assessment than would otherwise have been appropriate. Thus a tenant whose anti-social conduct has already been adversely affecting his neighbours for a considerable time but whose disability is raised at the eleventh hour may well find that the discharge of the PSED does not necessarily mandate a postponement of the date or enforcement of a possession order. Of course, the obligation to have “due regard” still arises but the result of the discharge of that obligation may well be less favourable to the person affected where, through delay, the landlord’s options have been limited and the rights and reasonable expectations of others have assumed a more pressing character. Each case will, of course, depend on its own facts.

Recording the discharge of the duty

(vii)  An important evidential element in the demonstration of the discharge of the PSED is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements. Although there is no duty to make express written reference to the regard paid to the relevant duty, recording the existence of the duty and the considerations taken into account in discharging it serves to reduce the scope for later argument. Nevertheless, cases may arise in which a conscientious decision maker focussing on the impact of disability may comply with the PSED even where he is unaware of its existence as a separate duty or of the terms of section 149.

The court must not simply substitute its own views for that of the landlord

(viii)  The court must be satisfied that the public sector landlord has carried out a sufficiently rigorous consideration of the PSED but, once thus satisfied, is not entitled to substitute its own views of the relative weight to be afforded to the various competing factors informing its decision. It is not the court’s function to review the substantive merits of the result of the relevant balancing act. The concept of ‘due regard’ requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors.

Practical steps to follow to show due regard to the PSED:

  1. Be aware of an individual’s issues/difficulties;
  2. Consider alternative action – is there alternative action available and if not why not.
  3. Liaise with relevant bodies – this could be other sections within the Council or third parties for example GPs, police, social services;
  4. Apply polices – the Council should have policies which consider the circumstances of the district, set out issues which may arise and the process to follow. This will help to ensure consistency in decision-making. However, be aware that policies cannot address every circumstance.
  5. Keep a proper paper trail – there must be rigorous consideration of the PSED but this also needs to be evidenced. Equality Impact Assessments (EIA) are valuable tools for evidencing that rigorous consideration.
  6. Be aware of changing circumstances/information and review the PSED – if necessary carry out a further EIA. This is particularly so, if there are subsequent decisions to be made, for example, an initial EIA should be carried out when the initial decision is made (for example serving a notice of seeking possession). As a result of receiving this notice, the tenant might get in touch and disclose information relevant to a Protected Characteristic. When it comes to making any further decisions (for example applying for possession), this new information needs to be taken into account and the EAI amended – it is not appropriate to rely on the initial EIA, as this has not considered all the information available at the time of making the further decision.

We are recruiting a part-time Property Lawyer…

Senior Property Solicitor

Band G plus up to 6 market supplements

£21,201 – £27,388 per annum (annual equivalent salary £35,336 – £45,648 per annum) plus annual car allowance of £2,856

Part-time permanent contract, 21¾ hours per week

Are you ready to step into your first management role, or do you have existing management experience that you would like to develop more?

Do you enjoy and have significant experience in the areas of residential and commercial property?

Would you like to have the opportunity to further develop your skills by gaining experience in large regeneration projects?

If you have answered yes to these questions, our Senior Property Solicitor vacancy might be the role for you!

What are we looking for?

As our new senior property lawyer you will lead on all complex property legal matters for the Council and for external clients as required.  You will have line management responsibility for one team member, so previous line management experience, or an eagerness to step into a management role, is required.  As a senior member of the legal team, you will help and support the Legal Services Team Manager and Head of Legal and Commercial Services in areas of corporate governance, as well as building strong and lasting internal and external relationships.

Are we right for you? 

We are a solution-focussed council.  Through listening and fair and balanced decision-making, we aim to do the best we possibly can for our community.

Legal Services play a vital role in ensuring good governance and helping officers find solutions to problems with a ‘can do’ approach.  The Legal Services team has an existing external client base of 32 clients, with plans to grow it even further.

You will be joining a team of specialist lawyers, each with their own areas of expertise, including contracts and procurement, planning, property, regulatory and enforcement.  Our structure enables everybody to focus on their own specialisms whilst also being exposed to other areas of law through close working relationships with colleagues.

You will be supported by a first-class administration and practice management team, as well as working closely with information governance colleagues as needed.

As a Council we are embracing agile working, acknowledging that the old days of 9-5 in the office do not need to be the norm.  Your role will be classed as a hybrid role, recognising that there may be times when you need to attend the offices (for example, to complete transaction documents) but outside of that, as long as it works for us and our customers too, we are happy for you to take a flexible approach to your working arrangements.

Are you right for us? 

We want you to succeed in this role.  To do so, you will need to be able to undertake work in the areas of commercial and residential property; due diligence; property transactions; regeneration projects; and compulsory purchase orders.

You will need to be able to advise in the context of local government law and therefore experience of this is desirable but not essential, as we would hope that this develops over time.

To fit in well with the team, you will be proactive, a quick learner, able to work flexibly and someone who can bring enthusiasm to the role.

If you would like to know more about the job feel free to contact Kate Hiller, Legal Services Team Manager on 01530 454379 or by email to

You can apply for any of our posts online at

Applications must be made using the on-line application process.

Disabled applicants who meet the essential criteria for the job will be guaranteed an interview.

We welcome applications from all sections of the community.

Closing Date: Sunday 11 September 2022