Public authority duties under the Equality Act 2010 are not ‘a question of ticking boxes’

The recent Scottish case, McHattie v South Ayrshire Council [2020] CSOH 4, highlights that public authorities must conduct their duties under section 149 of the Equality Act 2010 (EA 2010) with ‘rigour and an open mind’. Lord Boyd’s highly critical judgment should act as a reminder to public bodies on either side of the Scottish border not to see their duties under the EA 2010 as a tick-box exercise.

The facts

The case concerned South Ayrshire Council’s plans (the respondent) to close the Kyle Adult Care Centre, which provided care to adults with complex support needs.

Craig McHattie, the son of Mr McHattie (the petitioner) was a user of the care centre, having attended it for five days a week for the past 13 years. Craig and his parents relied upon its facilities and he had developed important relationships with the carers.

The respondent’s decision-making process was rather opaque. Consideration of closing the centre appeared to start following the South Ayrshire Health and Social Care Partnership’s Adult Learning Disability Strategy 2017-2023, which noted that the centre was ‘regarded as not fit for modern day service provision’. An options appraisal followed in 2018 which led to the decision that the best option for the centre was to transfer its users to externally provided services.

The respondent prepared a business plan dated 15 January 2019 which recommended the centre’s closure and set out a timescale for the implementation of the decision. It envisaged a consultation with staff, users and carers between March 2019 and June 2019 and an Equality Impact Assessment (EIA) between March 2019 and April 2019.

The South Ayrshire Integrated Joint Board (IJB) appeared to have made the decision to close the centre at a meeting on 26 June 2019. No consultation with users and carers on the proposal and no EIA had been conducted prior to the decision.

The issues

The petitioner lodged a petition for a judicial review; he sought that the decision to close the centre be ‘reduced’ (the equivalent of an order in England to ‘quash’ the decision) and declarations that the respondent had:

• failed to perform its statutory duties under s149 of the EA 2010; and
• frustrated the legitimate expectation of the petitioner by failing to consult with him and other service users and guardians.

Failure to prepare an EIA under s149 EA 2010

Section 149 EA 2010 sets out the general Public Sector Equality Duty (PSED). It provides that a public authority must have regard to, among other things, the need to:

‘Advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it’.

This includes removing or minimising disadvantages suffered by persons within a protected group and encouraging such persons to participate in public life.

Lord Boyd broke down the summary of the law given in, Bracking and others v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, (endorsing Aiken LJ’s summary in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin)) and said that there were three important aspects of the PSED:

1. The duty must be fulfilled before the policy in question is enacted;
2. The duty must be exercised in substance with ‘rigour and an open mind’; it is not a matter of ‘ticking boxes’; and
3. The duty is continuing; it does not end with the completion of the EIA and due regard must be had as policy evolves and is implemented.

Lord Boyd determined that the respondent failed in its duty under s.149 EA 2010. He noted that the duties under s.149 do not simply concern the prevention of discrimination but also the promotion of policies which help:

‘Eliminate differences between the protected group and those who do not share that protection’.

The respondent’s business plan recognised the need for an EIA before the closure of the centre. That did not happen; the subsequent scoping exercise had, ‘all the hallmarks of a tick-box exercise completed after the decision has been taken’.

Failure to consult

There is a common law duty to consult persons who have a legitimate expectation to be consulted about a measure before that measure is implemented. Lord Boyd found that the petitioner had a clear legitimate interest:

‘His son had attended the centre every day for 13 years. It was an integral part of his life. He and his parents relied on it’.

He determined that the respondent’s failure to consult was not a matter of procedural impropriety but, ’went to the heart of the decision making process’ and that the process was ‘fundamentally flawed’ by the failure to consult those with a legitimate expectation to be consulted.

Ultimately, Lord Boyd reduced the decision to close the centre and made the declarations sought by the petitioner.

What can we take from this case?

Lord Boyd’s breakdown of the three key aspects of the PSED provides a useful steer for authorities seeking to understand the nature of the duty; and his judgment demonstrates the perils of failing to adhere to it.

An EIA should take place before the substantive measure to which it relates is enacted to ensure that the effects of that measure can be assessed appropriately and consulted on. Authorities should be mindful to treat EIA as a key part of policy development and consultation, not a hoop to be jumped through. Further- and crucially- completion of an EIA will not automatically ensure compliance with the PSED; the requirement on those fixed with the duty to analyse equality impacts continues throughout the lifespan of policy development and implementation.