The concept of due regard plays a significant role in UK public law under the Equality Act 2010. This duty requires public authorities to consciously consider how their policies, decisions, and practices affect people with different protected characteristics. It is a cornerstone for promoting fairness, equality, and anti-discrimination in the public sector. We will explore the legal framework, the interpretation of ‘due regard’ by the courts and provide real-world examples from case law to illustrate its application.
The Legal Framework
The duty to have ‘due regard’ is embedded within the Public Sector Equality Duty (PSED) under the Equality Act 2010. The Act consolidates previous anti-discrimination laws and aims to harmonise and strengthen equality law in the UK. Section 149 of the Equality Act 2010 outlines the PSED, requiring public authorities to have due regard to the need to:
Eliminate discrimination, harassment, victimisation, and any other conduct prohibited by or under the Act.
Advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it.
Foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
Interpreting ‘Due Regard’
The phrase ‘due regard’ means that public authorities must give proper and conscientious consideration to the aims of the PSED when making decisions. It is not enough to merely be aware of equality issues; authorities must actively think about and incorporate these considerations into their decision-making processes.
Key Case Law
R (Brown) v. Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin)
In Brown the court considered what a relevant body must do to fulfil its obligation to have ‘Due Regard’ to the aims set out in the General Equality Duty mandated at that time under the Disability Discrimination Act 1995. The six ‘Brown principles’ it set out have been accepted by courts in later cases for example, R. (on the application of Greenwich Community Law Centre) v. Greenwich London Borough Council [2012] EWCA Civ 496 which established that the Brown principles apply to s.149 of the EA2010, the PSED.
Those principles are that:
- In order to have due regard, those in a body subject to the duty who have to take decisions that affect or might affect people with protected characteristics must be made aware of their duty to have ‘due regard’.
- Due regard is fulfilled before and at the time a particular policy that will or might affect people with protected characteristics is under consideration, as well as at the time a decision is taken. Due regard involves a conscious approach.
- A body subject to the duty cannot satisfy the duty by simply justifying a decision after it has been taken.
- The duty must be exercised in substance, with rigour and with an open mind in such a way that it influences the final decision. It is not a question of simply ‘ticking boxes’. It is good practice for the policy or decision maker to refer to the PSED and any code or other non-statutory guidance in all cases where the PSED is in play. The decision maker will then be more likely to ensure that the relevant factors are considered and the scope for argument as to whether the duty has been performed will be reduced.
- The duty is a non-delegable one. The duty will always remain the responsibility of the body subject to the duty. In practice another body may actually carry out the practical steps to fulfil a policy stated by a body subject to the duty however the body subject to the duty must maintain proper supervision over the third party and remains responsible.
- The duty is a continuing one. Decisions must remain subject to future review to account for changes in circumstance or new information.
- It is good practice for those exercising public functions to keep an accurate record showing that they had properly considered the PSED and addressed the relevant questions. Proper record keeping encourages transparency and will discipline those carrying out the relevant function to undertake the duty conscientiously. If records are not kept, it may make it more difficult, evidentially, for a public authority to persuade a court that it has fulfilled the duty imposed by s.149.
R (Bracking) v. Secretary of State for Work and Pensions
The case of R (Bracking) v. Secretary of State for Work and Pensions [2013] EWCA Civ 1345 stands as a critical judicial examination of public authority decision-making in the context of disability benefits. It revolves around the controversial abolition of the Independent Living Fund (ILF), a financial resource that enabled disabled individuals to live independently. This case, brought before the Court of Appeal, scrutinised whether the Secretary of State had acted in compliance with the PSED. The court’s analysis, particularly through the Brown Principles, revealed significant failures in the decision-making process.
The Court of Appeal found that the Secretary of State had failed to adhere to several of the Brown Principles. This failure was multifaceted:
Awareness of the Duty
The court concluded that there was insufficient evidence to show that the decision-makers were fully aware of their duties under the Equality Act. While there were references to equality in the decision-making documents, these were deemed perfunctory and lacked depth. The court emphasised that mere lip service to the duty was inadequate.
Due Regard
The principle of ‘due regard’ necessitates that equality considerations are integrated thoroughly into the decision-making process. In this case, the court found that the decision to close the ILF lacked substantive engagement with the potential impact on disabled individuals. The analysis presented was superficial, failing to demonstrate a genuine attempt to understand and mitigate adverse effects.
Sufficient Information
The duty to have ‘sufficient information’ requires that decision-makers are provided with comprehensive and relevant data to make informed choices. The court noted that the information considered was incomplete and failed to address key issues, such as the extent of the reliance of disabled individuals on the ILF and the realistic availability of alternative support mechanisms.
Timeliness
The court highlighted that compliance with the PSED must be proactive rather than reactive. In Bracking, the equality implications were not properly considered at the formative stages of the decision-making process but were instead addressed after the decision had been effectively made. This retrospective approach undermined the integrity of the duty.
Real Consideration
The court found that there was a lack of genuine consideration of the impact on disabled individuals. The decision appeared to be driven by financial considerations rather than a balanced assessment of equality impacts. The court stressed that financial constraints do not absolve public authorities from their equality duties.
Collection of Equality Data
The court was critical of the decision-making process leading to the abolition of the Independent Living Fund (ILF) partly due to inadequate data collection. The judgement highlighted several key points regarding the collection and use of equality data:
The Court noted that the Secretary of State had not collected sufficient data on the potential impact of closing the ILF on disabled individuals. This lack of comprehensive data undermined the ability to conduct a thorough and informed analysis of the equality implications.
The judgement emphasized that data collected must be specific and relevant to the particular decision at hand. In the case of the ILF, the court found that the information considered was too general and did not adequately address the specific needs and circumstances of the individuals who relied on the fund.
Comprehensive Impact Assessment
The court stressed the importance of a comprehensive equality impact assessment (EIA). An effective EIA requires detailed data on how different groups will be affected by a proposed policy change. The absence of such detailed data in this case meant that the equality impacts were not fully understood or mitigated.
Duty to Collect Data
The judgement in Bracking highlighted significant shortcomings in the collection and use of equality data by the Secretary of State. The court’s emphasis on the need for detailed, specific, and relevant data collection underscores the importance of this aspect in fulfilling the obligations under the PSED. By failing to gather and consider adequate equality data, the decision-making process was fundamentally flawed, leading to a ruling in favour of the claimants. This case thus serves as a crucial reminder of the integral role that comprehensive data collection plays in ensuring informed and equitable policy decisions.
Summary
The duty to have ‘due regard’ is a fundamental aspect of promoting equality and non-discrimination in the public sector. It ensures that public authorities actively and thoroughly consider the impacts of their decisions on people with protected characteristics. This duty, reinforced by case law, mandates a genuine and rigorous approach to equality considerations, ensuring that such considerations are embedded in public decision-making.
By adhering to the ‘due regard’ duty, public authorities can better serve diverse communities, foster good relations, and advance equality of opportunity. This not only helps to meet legal obligations but also promotes a fairer and more inclusive society. As demonstrated by cases like Brown and Bracking, the courts will hold authorities accountable if they fail to meet this duty.