Public Sector Equality Duty — section 149 Equality Act 2010
The general and specific duties under section 149 Equality Act 2010 — how the 'due regard' test works (Brown principles), the relationship with equality impact assessments, and how PSED is challenged in judicial review.
Wprowadzenie
The Public Sector Equality Duty (PSED) is contained in section 149 of the Equality Act 2010 and applies to all public authorities, plus any other person exercising public functions. The duty has two parts: a general duty in s.149(1) — to have 'due regard' to the need to (a) eliminate discrimination, harassment, and victimisation, (b) advance equality of opportunity between persons sharing a protected characteristic and persons who do not, and (c) foster good relations between persons sharing a protected characteristic and persons who do not — and specific duties imposed by regulations made under s.153 (the Equality Act 2010 (Specific Duties) Regulations 2011 in England, with separate Scottish and Welsh regulations). The 'due regard' standard is open-textured: it does not require any particular outcome, but it does require a real, substantial, conscious consideration of the equality implications of the relevant decision BEFORE the decision is made. The 'Brown principles' from R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) — endorsed by the Court of Appeal in R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 — set out the practical requirements: the duty must be exercised in substance, with rigour, and with an open mind; it must be discharged before the decision is made; the decision-maker must be properly informed of the relevant facts; the duty is a continuing one; and there must be a documented record of the consideration. PSED has been the foundation of dozens of successful judicial reviews — particularly in welfare reform, social care provision, and public-service closures.
In Brief
The Public Sector Equality Duty (Equality Act 2010 s.149) requires public authorities to have 'due regard' — meaning a real, substantial, documented consideration BEFORE the decision is made — to the need to eliminate discrimination, advance equality of opportunity, and foster good relations between groups sharing and not sharing a protected characteristic. The procedural standard is set by the 'Brown principles' (R (Brown) [2008]; Bracking [2013]). Equality Impact Assessments are the standard way to demonstrate compliance. Breach is a public-law error reviewable by the Administrative Court; remedy is usually quashing and re-decision.
Podstawowe zasady
General duty (Equality Act 2010 s.149(1)) — public authorities must, in the exercise of their functions, have due regard to the need to (a) eliminate discrimination, harassment, victimisation and other prohibited conduct, (b) advance equality of opportunity, (c) foster good relations between groups sharing and not sharing a protected characteristic.
Protected characteristics (s.149(7)) — age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex, sexual orientation. Marriage and civil partnership is included only for the first limb (eliminating discrimination).
'Due regard' standard — not an outcome duty but a procedural one. The decision-maker must consciously consider the equality implications BEFORE the decision is made, in substance and with rigour (Brown principles).
Brown principles (R (Brown) v SSWP [2008] EWHC 3158 (Admin), per Aikens LJ): (1) those exercising public functions must be aware of the duty; (2) the duty must be exercised before, and with sufficient connection to, the decision; (3) the duty is not delegated; (4) the duty is continuing; (5) record-keeping is good practice and helps demonstrate the duty has been discharged.
Documented consideration — Equality Impact Assessments are not strictly required by the Act but are the standard practice. Bracking [2013] EWCA Civ 1345: the duty is more likely to be found discharged where there is an EIA.
Specific duties (Equality Act 2010 (Specific Duties) Regulations 2011) — listed public authorities must publish equality information annually and equality objectives every four years.
Judicial review remedy — breach of PSED is a public-law error; remedies include quashing the decision, declaration, and (rarely) injunction. The court WILL NOT usually substitute its own decision; it will require the authority to redo the decision-making process with proper PSED compliance.
Severity — the more far-reaching the impact on protected groups, the more rigorous the PSED compliance must be (Hurley [2012] EWHC 201; Bracking; Hotak v Southwark LBC [2015] UKSC 30).
Kluczowe ustawy
Equality Act 2010 (esp. s.149)
Equality Act 2010 (Specific Duties) Regulations 2011 (England)
Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012
Equality Act 2010 (Statutory Duties) (Wales) Regulations 2011
Wiodące orzeczenia
R (Brown) v Secretary of State for Work and Pensions
[2008] EWHC 3158 (Admin)
R (Bracking) v Secretary of State for Work and Pensions
[2013] EWCA Civ 1345
Hotak v Southwark London Borough Council
[2015] UKSC 30
R (MA) v Secretary of State for Work and Pensions (the 'spare room subsidy / bedroom tax')
[2014] UKSC 60
Frequently Asked Questions
Who does the Public Sector Equality Duty apply to?
Section 149(2) Equality Act 2010 says PSED applies to a 'public authority' as defined in Schedule 19 (every central government department; every local authority; the NHS; police; Crown Prosecution Service; armed forces; courts; schools; further education and higher education institutions; many regulators). PSED ALSO applies to any other person exercising public functions in respect of those functions (s.149(2)). So a private contractor delivering a public service (e.g. running a prison or providing social care under a local authority contract) is subject to PSED for that public function.
What does 'due regard' actually mean?
It is not an outcome duty — the authority is not required to achieve any particular result. It IS a procedural duty: the decision-maker must consciously consider, with rigour and in substance, the equality implications of the decision BEFORE the decision is made. The Brown principles (R (Brown) v SSWP [2008]) set the practical requirements. Bracking [2013] confirmed that documented consideration through an EIA is good practice and makes successful challenge harder.
Is an Equality Impact Assessment legally required?
Not strictly by section 149 itself — the duty is one of substance, not form. BUT in practice an EIA is the standard way to demonstrate due regard, and the absence of any documented analysis makes a PSED challenge much easier. The Brown principles and Bracking both emphasise that record-keeping is good practice. Where the equality impact is significant, an EIA is effectively required.
What happens if a public body fails to comply with PSED?
Breach of PSED is a public-law error reviewable in the Administrative Court (judicial review). Remedies include: a quashing order setting aside the decision; a mandatory order requiring the authority to redo the decision-making process; a declaration; rarely an injunction. The court will NOT substitute its own decision — that is for the public body to take afresh with proper PSED compliance. Time limit: judicial review must be brought 'promptly' and in any event within 3 months of the decision (CPR 54.5).
Does PSED apply to non-discrimination decisions like budget cuts?
Yes — PSED applies to ALL functions of a public authority. The duty has been particularly important in budget-cut cases: R (MA) v SSWP [2014] UKSC 60 (bedroom tax), R (Hodge) v Hampshire County Council [2016] EWHC 763 (Admin) (library closures), and many local authority spending decisions. The more far-reaching the impact on protected groups, the more rigorous the PSED compliance must be (Bracking).
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