The Equalities Act was introduced In April 2010 and with it the Public Sector Equality Duty (PSED) came into force one year later in April 2011. In over 10 years you would have expected that it was fully ingrained in decision making, there are many good examples where this is the case however it is not universal.

The recent case of The Queen v Secretary of State for Business Energy and Strategy on the application of Friends of the Earth Limited, Client Earth, Good Law Project and Joanna Wheatley [2022] EWHC 1841 (Admin) has several tales to tell. The main interest in the case has been the headline issues around the validity of the UK's approach to its commitment to Net Zero. The Secretary of State (SOS) had already lost before they even arrived at court on a challenge under the Equalities Act, not the main issues.

The SOS admitted and accepted in advance of the hearings that they had never undertaken an equality impact assessment on the Heat and Building Strategy and had failed to meet their equalities duties in respect of the Net Zero Strategy. This was not a challenge on the merits or details of a consideration but purely an absence of consideration - a complete own goal.

Why bother? We have to if we want to be able to take forward policies and strategies to support residents business and the community - or we risk a challenge such as the SOS had. The real power of appropriate assessment and consideration comes from the benefit in ensuring a diverse range of thoughts and needs are considered to improving and refining policies. We can catch and correct unintended consequences and ensure better overall outcomes. Ultimately those of us working in the public sector are driven by a desire to get things right; and this is a powerful tool to support that.

Section149 of the Equalities Act 2011 provides in summary that public authorities muse when exercising their functions have due regard to the need to eliminate discrimination, harassment victimisation or other prohibited conduct, advance the equality of opportunity between those who share protected characteristics and those who do not, and finally to foster good relations between those with a characteristic and those who do not.

There are eight protected characteristics:

• age;
• disability;
• gender reassignment;
• pregnancy and maternity;
• race;
• religion or belief;
• sex;
• sexual orientation

The PSED applies to most public authorities including Councils, the duty falls to the decision maker at any given time, so it is critical that this duty is not forgotten or ignored.

The PSED does not define how the duty is discharged, and fortunately or potentially unfortunately depending on your view there is no single process or form which can solve the duty for you. Many authorities have developed frameworks and template forms to guide officers through the potential impacts and characteristics, these are helpful but not essential.

We need to look at what makes for a good analysis, simply the decision maker needs to have in mind the potential impacts both positive and negative of a proposed course of action and then clearly weigh these in the balance when making the final decision. To properly ensure the information is considered and weighed appropriately reports and decisions need to set out the factors which are relevant (or potentially clearly state those which are irrelevant if they have been raised) and the impact they will have on those with protected characteristics, both positive and negative. Once this is done a decision can be made which will be considerably safer, there may be challenge on the merits of the assessment but that is considerably harder to bring than one which says it has not been done. The Courts have proved relatively resistant to engaging in detailed analysis of the "correctness" of a given decision.

It is worth pointing out that the assessment must be done by the decision maker, often with significant decisions including policies and strategies the final decision is made by Members based on a report prepared by officers. If the assessment of the PSED is not addressed in the report essentially it does not exist, no matter how much work has gone into the background and development of the proposal. If the final decision maker is unaware, and the information is not made available to them they cannot incorporate it into the decision. Most Councils have a specific section in their report template to address equality issues, but if there is anything material it is ideally addressed in the overall discussion of the pros and cons of the argument not just left to a form filling tick box, that would leave you open to challenge.

I could be concerned that Equalities is the forgotten part of decision making, and it generally is not. Most cases are successfully defended based on an assessment which may not be perfect but shows there is genuine care and attention to people’s needs. But we all need to remember when we look at reports, where is the PSED addressed?