The Public Sector Equality Duty in Equality Act 2010 requires public bodies to have due regard to disability when making decisions. However public bodies have a lot of discretion. Public bodies are also subject to the usual Equality Act obligations not to discriminate, for example to make reasonable adjustments.
This page is a very broad summary only. The more detailed information on this website about the PSED is currently under review, and is not online at present. There are links to guidance and more on the PSED below.
Outline of the Public Sector Equality Duty
At the heart of the PSED is the ‘general duty’. Broadly this 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’. Considering implications for disability will often involve an ‘equality impact assessment’.
The ‘general duty’ is is supported by ‘specific duties’ set out in regulations. The specific duties for Scotland and Wales are more extensive than those for England and non-devolved bodies
PSED focus on process. Remember the rest of the Equality Act
The PSED is in addition to the public body’s obligations under the normal Equality Act rules relating to employment, provision of services, exercise of public functions and education etc. The PSED applies more widely than those obligations (below Examples of activities covered), but it focuses on the process of making decisions. The PSED requires that appropriate consideration be given to the need to advance equal opportunity for disabled people etc. The courts have said the PSED general duty is an important duty which a public body need to observe, and there are numerous cases in which bodies have been taken to task for failing to do so. Even so a public body may be able to avoid breaching the PSED by ‘going through hoops’ to genuinely consider the required issues but reaching almost whatever decision it wishes.
Accordingly, the PSED does not say that public bodies must not discriminate, or must make reasonable adjustments etc. That is the role of the ‘individual rights’ which form the bulk of the Equality Act (and of this website), the rights aimed at creating rights for individuals who have been discriminated against. 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. Where these individual rights apply, it may make sense to focus on those.
Aim of the PSED – ‘mainstreaming’
The Minister, Lynne Featherstone, summarised the aim of the duty:
“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.”
Lynne Featherstone, Minister for Equalities, 11th July 2011 (link to Hansard).
The aim is that organisations across the public sector – including hospitals, local and central government, schools and colleges – should 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. Mainstreaming should help identify from the start unnecessary barriers to equal participation for disabled people, as well as encouraging authorities to take ‘positive action’ measures where permitted.
What is covered by PSED
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.
The list of bodies to which the specific duties apply is somewhat more limited, but the specific duties should cover most major public bodies.
Examples of activities covered by PSED
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 PSED focus on process. Remember the rest of the Equality Act.
- What services are to be supplied or funded, to whom, and where. Cases have often been on spending cuts. Examples of court cases have included provision of care services for the disabled (R (W) v Birmingham CC ), provision of legal entitlment advice services (R (Rahman) v Birmingham CC ), Post Office closures (R (Brown) v Sec of State for Work and Pensions ), and what treatments should be offered by the NHS (R (Eisai) v NICE ).
- 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).
- Equality Act 2010: Public Sector Equality Duty: What do I need to know: A Quick Start Guide for Public Sector Organisations (pdf, link to gov.uk) – from the Government Equalities Office.
- 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 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 PSED.
- Technical Guidance on the Public Sector Equality Duty (link to EHRC) Equality and Human Rights Commission. On ‘technical guidance’, see further Guidance and Codes of Practice: Technical guidance.
- TUC Equality Duty Toolkit (link to tuc.org.uk), October 2011. Aimed at trade union negotiators.
- The Public Sector Equality Duty: An Update and Overview (pdf), from Matrix Chambers, January 2016.