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PSED: Enforcing the duty

This page deals with seeking to enforce the Public Sector Equality Duty (PSED) where one thinks an authority has not complied with it.

Note: this page covers the single Public Sector Equality Duty (PSED) which took effect from 5th April 2011. Before then, the Disability Equality Duty applied.

Introduction

The PSED is not primarily aimed at giving individual rights - those are to be found in the other parts of the Equality Act (see PSED: Remember the rest of the Equality Act).

Whilst individuals and other organisations, as well as the ERHC, can take legal steps to enforce the PSED, and have done so (see Legal enforcement below), legal action is going to be relatively unusual. In practice, where an individual feels a public authority has not complied with the PSED, his or her main step will be taking it up with the authority, as outlined in the next heading.

Easier steps to take

Where an authority does not appear to have taken disability - in particular stammering - adequately into account, one could ask it what consideration was given to stammering and other speech disorders by those who made the relevant decision, when they made it, and if not why not. If the decision was made by councillors, or by a committee, what material was placed before them on this - and on the PSED generally.

It may well help to be clear on the magnitude of the effect of the relevant policy or practice in relation to stammering, the importance of it to people who stammer, how they may be disadvantaged, and such like.

The authority may have have considered only some of the disabilities that peeple are more accustomed to consider, such as mobility impairment, vision or hearing impairment. On an authority's duty to have regard to particular disabilities such as stammmering see 'Due regard' to stammering.

An authority will generally have a complaints procedure which could be used.

The former Disability Commission issued a Disability Equality Duty Disabled People's Toolkit - see www.dotheduty.org. However, this is out of date to a large extent, for example equality schemes are no longer relevant and equality impact assessments are not compulsory. The Toolkit applied to the Disability Equality Duty (DED) which was the predecessor of the PSED. The Toolkit says that if you completely exhaust the formal complaints procedure of the public authority and are still not satisfied with their progress in meeting the DED, you may wish to consider forwarding full details to the Disability Rights Commission (DRC). The Commission could consider whether to investigate further. The DRC is now replaced by the Equality and Human Rights Commission, and it would seem appropriate to now report any breaches to the EHRC Helpline, at least where where procedures within an authority are exhausted.

See my Making services accessible section for some ideas on removing barriers for people who stammer. Bear in mind that the PSED covers employment too. I also give some links to training providers.

The PSED (previously the DED) has been proving useful, but an individual's main rights against public authorities are still those given by other parts of the Equality Act (see PSED: Remember the rest of the Equality Act).

Legal enforcement

Enforcement by EHRC

Looking at the legislation, one might think that the Equality and Human Rights Commission has primary responsibility for enforcing the PSED. Under s.31 and s.32 EqA 2006 as amended, the EHRC can assess an authority's compliance with the duties and issue a compliance notice, applying to the courts for an order to require compliance if necessary.

However, in practice many cases have been brought by individuals and other organisations, as outlined in the next heading.

Enforcement by individuals and organisations: Judicial review

Although the PSED does not give enforceable private law rights (EqA s.156), the option of bringing judicial review proceedings is open to an individual or organisation who wishes to challenge a public body's implementation of the general duty. This is important given the reasonably robust approach the courts have been taking on the duty, holding authorities not to have had 'due regard' if they have failed to give proper consideration to the equality implications of policies and practices. In numerous cases people have successfully brought judicial review cases to the High Court.

A practical limitation on taking this type of 'judicial review' case to court is potential liability to legal costs, one's own and perhaps those of the other side, since the claim goes to the Administrative Court which is part of the High Court. Because of this, legally aided individuals are those most likely to make a claim for breach of the public duties. However even where someone has no intention of starting a court action, it is of course legitimate to call on an authority to comply with their duties - see above Easier steps to take.

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Last updated 30th May, 2011