Public sector equality duty (PSED)

From 5th April 2011, the previous Disability Equality Duty on public authorities is replaced by a single 'Public Sector Equality Duty'. In England (including non-devolved bodies) and Scotland there are currently no 'specific duties', so equality schemes no longer need to be produced, but the 'general' duty applies. The changes are made by the Equality Act 2010.

Note: this page covers the new single Public Sector Equality Duty under the Equality Act 2010, which took effect from 5th April 2011. For the position before then, see the Disability Equality Duty.

Overview
Changes in Equality Act 2010
Aim of the PSED - mainstreaming
What is covered
The 'general duty'
Specific duties
Enforcement
Localism Bill
Remember the rest of the Equality Act
Guidance and other links

Overview

At the heart of the PSED is the 'general duty' (see below General duty) which requires public bodies to have due regard to the need to eliminate unlawful discrimination, advance equality of opportunity and foster good relations, as regards disability and various other grounds including race and gender. There have been numerous cases on the duty, mainly on what it means to have 'due regard'. The 'general duty' is is supported by 'specific duties' (see below Specific duties).

The PSED is in addition to the authority's obligations under the normal Equality Act rules, for example on provision of services, public functions and employment. The PSED applies more widely than these other rules (see below What is covered), but focuses on the process of making decisions - requiring that appropriate consideration be given to the need to advance equal opportunity for disabled people etc (see What is 'due regard'?). The PSED does not actually say that authorities must not discriminate, or must make reasonable adjustments etc - that is the role of other Equality Act provisions: see below Remember the rest of the Equality Act.

Changes in Equality Act 2010

From 5th April 2011 the previous separate equality duties on public bodies covering race, disability (the 'Disability Equality Duty') and gender were replaced by the present single Public Sector Equality Duty (Equality Act 2010, s.149 onwards). This Public Sector Equality Duty (PSED) also extends to age, gender reassignment, pregnancy and maternity, race, religion or belief, sex, and sexual orientation, and to a limited extent marriage and civil partnership.

Apart from this extension of the duty to other grounds of discrimination, the most important change under the Equality Act is the content of the 'specific duties' (see below), which previously required authorities to produce 'equality schemes'.

The Order bringing the new single duty into effect from 5th April 2011 is SI 2011/1066 (link to legislation.gov.uk).

Aim of the PSED - 'mainstreaming'

Lynne Featherstone MP summarised the aim of the duty on 11th July 2011 (link to Hansard):

"Just as with previous race, disability and gender equality legislation, the duty aims to ensure that the consideration of issues of equality forms part of the day-to-day routine of decision making and the operational delivery of public bodies."

So the aim is the same as the Disability Equality Duty, which has been in effect since December 2006 and is now replaced by the PSED. Organisations across the public sector - including hospitals, local and central government, schools and colleges - are required to be proactive in advancing disability equality, and indeed other forms of equality.

The idea is that disability should be 'mainstreamed'. Disabled people and disability equality should be taken into account from the outset, rather than focusing on individualised responses to specific disabled people. Mainstreamming should help identify from the start unnecessary barriers to equal participation both for disabled users of services, and for current and potential employees, as well as encouraging authorities to take 'positive action' measures where permitted.

What is covered?

The general duty, ie. to have 'due regard', applies to most public bodies, for example central and local government, schools, universites, hospitals and the police. Private companies and voluntary sector organisations are also subject to the general duty so far as they perform a public function. See PSED: General Duty: What bodies are covered by the general duty?. The specific duties are somewhat more limited but should cover most major public bodies.

In the main, the general duty applies to all functions of public bodies, as well as the public functions of private bodies. Some examples include (but are not limited to):

Accessibility of services (or other functions) of the public body. Examples could be: considering the need for people with speech disorders not to be excluded from phone calls by a voice recognition system; or considering how to allow equal participation at a planning meeting, perhaps allowing extra time to speak when objecting to a planning application. These are very much areas where other provisions of the Equality Act are likely to apply also, and may well give clearer rights than the PSED: see Remember the rest of the Equality Act.
Procurement is an important area covered by the duty. As regards the specification of the services being bought in, the way they are provided etc, this very much overlaps with the previous head and other Equality Act duties. An example could be specifying the details of a voice recognition system to be supplied.
What services are to be supplied or funded, to whom, and where. At present, cases are very often on spending cuts. Examples of court cases have included provision of care services for the disabled (R (W) v Birmingham CC [2011]), provision of legal entitlment advice services (R (Rahman) v Birmingham CC [2011]), Post Office closures (R (Brown) v Sec of State for Work and Pensions [2008]), and what treatments should be offered by the NHS (R (Eisai) v NICE [2007]).
overlapping with the previous heads, the work of regulatory bodies overseeing particular areas, for example telecommunications (Ofcom) and, examinations (Ofqual in England)
provision of housing and possession orders is another example: Possession and disability (link to nearlylegal.co.uk).

The 'general duty'

Like the Disability Equality Duty before it, the Public Sector Equality Duty has two parts. First there is the 'general duty'. In broad terms, this obliges public authorities to have due regard to the need to:

eliminate unlawful discrimination, harassment, and victimisation;
advance equality of opportunity between those with a protected characteristic and others;
foster good relations between these groups.

The courts have taken the approach the general duty is an important duty which public authorities need to observe, and there are numerous cases in which authorities have been taken to task for failing to do so. For more, see PSED: General Duty.

Specific duties

The second part of the Public Sector Equality Duty is the 'specific' duties. These are designed to support performance of the general duty, and are set out in regulations.

Before April 2011 the 'specific duties' required authorities to produce equality schemes. Those rules no longer apply.

The purpose of the [specific duty] regulations is to help public bodies in the better performance of the equality duty - we should not lose sight of that key point during the debate. The general duty is the key provision, which is in place and is broader than previous duties. The specific duties are designed simply to help public bodies to perform the general duty better.
Lynne Featherstone MP, Parliamentary Under Secretary of State, Minister for Equalities, 11th July 2011 (link to Hansard).

England, Wales and non-devolved bodies

More precisely, these are the bodies listed in EqA Schedule 19 Part 1 (England and non-devolved bodies) and Part 2 (Wales) - see below Schedule 19.

England (whose rules also cover non-devolved bodies) introduced specific duty regulations from 10th September 2011. Wales introduced its duties on 6th April 2011. See further:

PSED: specific duties in England (and non-devolved bodies in Scotland and Wales), for bodies listed in Schedule 19 Part 1;
PSED: specific duties in Wales, for bodies listed in Schedule 19 Part 2.

Scotland

These are the bodies listed in EqA Schedule 19 Part 3 - see below Schedule 19. No specific duties have yet been made for Scotland, but proposed duties have been issued for consultation. Accordingly, at present only the general duty for Scottish public bodies applies from 5th April. See further:

PSED: specific duties in Scotland, for bodies listed in Schedule 19 Part 3.

Schedule 19

Schedule 19 of the Equality Act 2010 lists authorities which are subject to the general duty and can, by regulations, be subjected to 'specific duties'. The general duty goes beyond bodies listed in Schedule 19 in that it also covers companies etc carrying out public functions, but 'specific duties' can only be imposed on bodies listed in Schedule 19. For an unoffical version of the Schedule, including later additions up to April 2011, see Schedule 19 Equality Act 2010, consolidated April 2011 (link to homeoffice.gov.uk/equalities).

Whether the 'specific duties' of an authority are determined by regulations of the Westminster government (English and non-devolved bodies), the Welsh Government or Scottish Government depends on whether the authority is listed in Part 1, 2 or 3 respectively of Schedule 19. This Schedule as amended also has a Part 4 listing 'cross-border authorities'; which government makes regulations for these is designated by a code letter next to the name of the authority, according to EqA s.154.

Enforcement

The courts have been willing to see the PSED, particularly the general duty, as an important obligation with which authorities must comply. It is possible for an individual or organisation to bring an action for judicial review, and the EHRC can enforce the duties. Much more often, however, the duties will be used outside a court context as a basis to question, or complain to an authority about, its lack of regard to disability issues. For more see Enforcing the duty.

Localism Bill

There is an issue whether the Localism Bill (link to EHRC briefing) may to some extent lessen the effectiveness of the Public Sector Equality Duty.

Remember the rest of the Equality Act

The PSED is in addition to the body's obligations under the normal Equality Act rules relating to employment, provision of services, exercise of public functions and education etc. These are the 'individual rights' which form the bulk of the Equality Act, ie they are aimed at creating rights for individuals who have been discriminated against. Where these individual rights apply, it will normally make sense not to focus only on the PSED. (See above What is covered for some idea of the overlap between the PSED and other duties). Although the PSED can be helpful, the authority may well have breached an individual right anyway, such as the obligation to make reasonable adjustments in respect of services or public functions.

A particular strength of the PSED is in requiring disability to be taken into account at the outset when making decisions rather than after the event. Remember though that even without the PSED, the reasonable adjustment duty in respect of services and public functions, for example, is 'anticipatory', even though it can be claimed as an individual right. So authorities - and other service providers - are required to consider needs of disabled people even before a particular individual presents themself. (This can also be the effect of the prohibition on indirect discrimiation, another individual right.) The PSED and individual rights under other parts of the Equality Act may complement each other.

Even if there is no 'anticipatory' obligation, a disabled person may have an individual right under the Equality Act whether or not the PSED applies.

Guidance and other links

Equality Act 2010: Public Sector Equality Duty: What do I need to know: A Quick Start Guide for Public Sector Organisations (pdf, link to homeoffice.gov.uk) - from the Government Equalities Office. (For an outline of parts of the booklet see PSED: What is 'due regard?: Government guidance.)
Equality Act 2010: Specific duties to support the Equality Duty: What do I need to know? A quick start guide for public sector organisations (pdf, link to homeoffice.gov.uk) - on the specific duties for English and non-devolved bodies. Again from the Government Equalities Office.
Equality and Human Rights Commission guidance on the P SED - guidance for England and Wales (and non-devolved bodies in Scotland) has been updated for the new specific duties. Also interim guidance for devolved Scottish bodies..
TUC Equality Duty Toolkit (link to tuc.org.uk), October 2011. Aimed at trade union negotiators.

Top