Public authority functions

This page looks at the Equality Act duties in respect of 'public authority functions' which are not services to the public. To have the rights, your stammer needs to be a 'disability' within the Equality Act, or in some cases be perceived as a disability. As well as these rules, the public authority will normally also be subject to the disability equality duty.

"EqA" or "Equality Act" means the Equality Act 2010 (link to legislation.gov.uk)

The "Services Code" means the 2011 Equality Act Code of Practice on services, public functions and assocations (pdf, link to EHRC website), which came into force on 6th April, 2011.
(More on EqA Codes of Practice)

Summary
Where do the rules apply?
'Public authorities' and 'functions'
Discrimination
Duty to make reasonable adjustments
Disputes

Note: this page covers the Equality Act 2010 position from 1st October 2010. See also pre-Equality Act position and Which Act applies: Equality Act or DDA?

Summary

The rules broadly apply to functions of public authorities which are not services to the public, Examples include arrest and interview by the police, or tax enforecment. The rules can also extend to public functions undertaken by the private and voluntary sector.

Public authorities have duties not to discriminate or harass in relation to disability. This includes a duty to make reasonable adjustments. In general, the normal rules on discrimination apply.

The rules on public authority functions do not necessarily apply to Northern Ireland.

Where do the rules apply?

The rules on public authority functions are 'residual' - they do not apply if another part of the Equality Act applies (or would apply but for an exception). Some functions will not be within the 'public functions' rules because they are are already covered by the education rules. Also many public authority functions, such as libraries, leisure services and provision of information, will fall within the normal Part 3 rules on services to the public.

However some public functions are probably not services to the public, eg arrest by a police officer. It was to cover this kind of situation that the rules on public authority functions were introduced. Some examples of where the rules are likely to apply:

law enforcement functions such as arresting a suspect, or interviewing a potential witness to a crime; but the police providing information to the community on crime prevention is likely to be a service to the public;
a local authority decision as to whether a couple should be allowed to adopt a child;
claiming a social security benefit (though some aspects such as advice on benefits may be a service to the public, and it seems the actual decision whether a claimant is entitled to a statutory benefit is outside the Equality Act: CDLA 3585 2007);
tax assessment and investigation (but again some HMRC functions may be services to the public);
immigration officer functions.

The duties imposed on public authorities when providing a service to the public and those imposed when performing a function are similar in many respects, so it will not necessarily make much difference which set of rules applies.

ZH v The Commissioner of Police for the Metropolis, Court of Appeal, February 2013
An autistic boy had become 'stuck' at the side of a swimming pool, and jumped into the water when approached by police. He ended up being restrained by the police, and put in the cage at the back of a police van. The Court of Appeal upheld a decision that the police had failed to make reasonable adjustments,in breach of disability discrimination legislation. The police should have consulted the boy's carers from the school (at least one carer was present the whole time), to inform themselves properly before taking any action which led to the application of force. Their treatment of him was also in breach of human rights law.

'Public authorities' and 'functions'

The rules apply in relation to 'functions' of a 'public authority' - unless covered by other parts of the Equality Act as discussed above.

'Public authority'

In general any public authority falls within the rules. This is subject to a few exceptions, such as Parliament and the Security Service. Local and central government are covered as well as many other bodies, for example the police.

'Functions'

Generally all activities of a public authority are 'functions'.

There are just a few specific exceptions, such as 'judicial acts' (eg a judge's ruling) or a decision not to institute criminal proceedings. See Appearing in court: Equality Act for more on the main exceptions.

Private and voluntary sector may be included

Private companies and voluntary sector organisations are also subject to the rules where they perform a public function. For example, a private company which has contracted with the Home Office to run a prison will be subject to the rules (so far as another part of the Equality Act does not apply), but not in relation to private activities it also undertakes such as providing security for banks.

Discrimination

It is s.29(7) EqA which says that a person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation.

Accordingly the normal types of discrimination, harassment and victimisation are covered - see my Discrimination page. As set out there, for some (but only some) types of discrimination the service provider has a defence if it shows its action was objectively justified.

An important aspect of discrimination is the duty for service providers to make reasonable adjustments. This is dealt with separately under the next heading.

Examples on stammering

Possible examples of discrimination include:

failure to give a person who stammers time to speak, including putting the phone down on them - see Right to be heard;
being offhand or rude; or
subjecting a benefit claim to particularly rigorous investigation because software has flagged speech hesitations as indicating dishonesty - see Voice analysis on insurance and benefit claims.

Duty to make reasonable adjustments

This is basically the same as for services to the public. See Services to the public: Duty to make reasonable adjustments. Like there, the duty is anticipatory.

So, broadly, there is an obligation to take reasonable steps if a service provider's provision, criterion or practice puts disabled persons at a substantial disadvantage; and there is also the duty to take reasonable steps to provide an auxiliary aid or service if disabled persons would otherwise be put at a substantial disadvantage.

There is a difference for public functions in that Sch 2 para 2(5) gives a special meaning to being "placed at a substantial disadvantage" (note that 'substantial' means only 'more than minor or trivial'). The meaning is:

if a benefit is or may be conferred in the exercise of the function, being placed at a substantial disadvantage in relation to the conferment of the benefit; or
if a person is or may be subjected to a detriment in the exercise of the function, suffering an unreasonably adverse experience when being subjected to the detriment.

For an example of applying these reasonable adjustment rules to the police, see above ZH v The Commissioner of Police for the Metropolis.

Disputes

See Services: Complaints and going to court.

Top

Public authority functions

Summary

Where do the rules apply?

'Public authorities' and 'functions'

'Public authority'

'Functions'

Private and voluntary sector may be included

Discrimination

Examples on stammering

Duty to make reasonable adjustments

Disputes

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