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:
- eliminate discrimination, harassment, victimisation and any other conduct prohibited by the Act;
- advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and
- 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:
– gender reassignment;
– marriage and civil partnership;
– pregnancy and maternity;
– 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  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”.
(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:
- Be aware of an individual’s issues/difficulties;
- Consider alternative action – is there alternative action available and if not why not.
- Liaise with relevant bodies – this could be other sections within the Council or third parties for example GPs, police, social services;
- 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.
- 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.
- 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.