The Court’s approach to the Public Sector Equality Duty, an update and advice for public sector decision makers and claimant lawyers

The first reported decision of the Administrative Court this year is The Queen (on the application of Isabel Haden) v Shropshire Council & Ors [2020] EWHC 33 (Admin).

Whilst the decision is likely to be of interest to planning and environmental lawyers, its interest to public lawyers more generally is found in its restatement of the Administrative Court’s approach to considerations under section 149 of the Equality Act 2020 (“the 2010 Act”).

Background to the claim

The background to the case concerned a decision taken by Shropshire Council (“the Council”) to grant planning permission, subject to conditions, to a developer for the “phased extraction of sand and gravel, inclusive of mineral processing, all ancillary works, equipment and associated infrastructure and progressive restoration”. As a result of the work, it was considered that any homes upwind of the quarry operations might be affected by significant dust emissions, thereby reducing the air quality, although such an impact was not expected. The Council’s Environmental Statement addressed the issue of air quality however, did not address specific individuals with disability in the area. The Claimant identified two such individuals residing upwind of the proposed development site.

An Equality Impact Assessment was then undertaken by the Council in respect of the two individuals.

When granting planning permission, the Planning Officer’s report considered the objections of the two disabled individuals, as well as the Equality Impact Assessment,  finding that “…the impacts of dust from the site at the sensitive premises are not anticipated to cause an exceedance of the air quality objective levels which would trigger the need for action, even taking into account the particular sensitivities of these receptors. The proposed operations would be significantly below the national objective levels set in legislation….the concerns of the local community with respect to air quality are acknowledged. Regulatory Services are the Council’s technical advisors with respect to air quality and they have not objected. They are satisfied that the proposals, as amended, together with the recommended planning condition will ensure that the proposals do not lead to any unacceptable deterioration in local air quality and will protect the health of local residents, including those with particular vulnerabilities”

Conditions were subsequently imposed to try and mitigate any adverse effect of dust production on local air quality however, did not go so far as to address the two specific disabled individuals.

The Claimant’s challenge

Amongst other grounds of challenge, the Claimant submitted that in granting planning permission, the Council had erred in failing to impose planning conditions that properly reflected the analysis contained within its Equality Impact Assessment. In particular, neither the planning conditions imposed, nor the section 106 Agreement, identified what the trigger points in respect of the worsening of air quality would be for action under the conditions. Accordingly, the conditions were ineffective to the point of rendering the grant of planning permission unlawful.

The Court’s considerations

The Court reminded itself of the contents of section 149 as well as earlier authorities on the public sector equality duty.

Stuart-Smith J then helpfully set out the following comments at [63]:

“Without derogating from the principles set out above, what matters for present purposes is that the decision maker must have due regard to the need to remove or minimise disadvantages suffered by persons who share the relevant characteristic of disability and to take steps to meet their needs, so far as they are different from the needs of persons who do not share the characteristic. This flows from s. 149 (1) and (3). The Court must be satisfied that there has been a rigorous consideration of the duty so that there is a proper appreciation on the part of the decision maker of the potential impact of the decision on equality objectives and the desirability of promoting them. If there has been a proper and conscientious focus on the statutory criteria, the Court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision. In assessing the decision maker's conduct, it is to be remembered that the statute requires public authorities to be properly informed before taking a decision. What is not required is the achievement of a particular end. And, provided it has proper information, questions of weight are for the decision maker, not the Court, subject to Wednesbury unreasonableness.”

The Court’s decision

The Claimant’s challenge in respect of section 149 during the substantive hearing was in fact a renewed application for permission to bring judicial review proceedings on that ground. The Court dismissed the ground as having “no merit” and being “inarguable”.

It found that:

“…the conditions impose… taken in conjunction with the s. 106 agreement, were a reasonable and pragmatic set of measures to provide further safeguards for the sensitive individuals if, contrary to expectation, any dust related problem arose. The Claimant submits that neither the conditions nor the s. 106 Agreement identify what would be trigger points for action under those provisions and that therefore they are ineffective to the point of rendering the decision unlawful. Although it is correct that no trigger points are identified, I do not accept that this renders the provisions ineffective or unlawful. Conditions 9 and 10 require the establishment of dust monitoring schemes which must be approved by the Council. It is, in my judgment, obvious that such monitoring schemes would have to descend to the detail of what levels would trigger the need for action: otherwise they would be pointless. Similarly, the detailed dust management plans to be submitted before commencing Phase 5b would be useless and irrelevant unless, either singly or in conjunction with other documents/schemes, they specified the objectives of the management plan in terms of levels of pollution to be allowed and achieved…The position under the s. 106 Agreement is even clearer because [it makes]… express reference to trigger levels in the Dust Monitoring Scheme submitted to and approved by the Council…Standing back and looking at the conditions and s. 106 Agreement that the Council decided to require of the Applicant, they create a substantial and effective framework for ensuring that dust levels do not exceed satisfactory levels and, if they were to do so, for requiring appropriate mitigation measures to be taken. There is no arguable basis for setting the decision aside by reference to what they said or did not say.”

An analysis

Section 149 of the 2010 Act, otherwise known as the ‘Public Sector Equality Duty’ has particular importance. Unlike the other legal obligations imposed on public authorities under the 2010 Act, a breach of the section 149 duty can be challenged by way of judicial review, rather than a County Court challenge.

Without setting out the entirety of the (rather lengthy) section, section 149 provides that public authorities (or those bodies exercising public functions) must, in the exercise of their functions, “have due regard to the need to –

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b)advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c)foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”

In practise, public authorities will (or should!) undertake an Equality Impact Assessment in advance of any decisions that it is considering taking, in order to demonstrate that it has had regard to these obligations and fulfilled its legal duty. It is not uncommon for such assessments to identify steps that need to be taken in order to allow a decision to be lawfully made. On the other hand, it is also becoming increasingly common for such considerations not to be had at all.

This decision is a helpful reinstatement of what the Administrative Court will consider when adjudicating on a challenge brought under section 149. This decision, read in conjunction with various earlier authorities can be seen to now provide comprehensive guidance for public law practitioners and, more importantly, public authority decision makers, on how the court will approach the issue to determine if a decision has been lawfully taken. It will:

1.      Bear in mind that equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation;

2.      Alongside an Equality Impact Assessment, look for evidence of the other steps taken by the decision maker in seeking to meet the statutory requirements;

3.      Seek to identify and understand what considerations the decision maker knew at the time the decision was taken, as well as what they knew. It will bear in mind that as the obligation is upon the decision maker personally, they cannot be expected to know what was in the minds of those offering them advice, however, they must make sure that they are properly informed prior to making a decision;

4.      Ensure that a decision maker has assessed the risk and extent of any adverse impact arising from the decision, as well as the ways in which any risk may be eliminated, before adopting a decision. Whilst there is no duty to make express preference to the relevant duty, reference to it and the relevant criteria will reduce the scope for argument regarding decision making;

5.      Ensure that the duty has been exercised in substance, with rigour and not be thought of as a mere tick box exercise;

6.      Check that there has been a proper and conscientious focus on the statutory criteria, noting that general regard to equality is not the same as having specific regard to the statutory criteria;

7.      Forgive any failure to identify particular objectives to be achieved, as the achievement of a particular end is not required;

8.      Not engage in questions of weight. The question of the weight to attach to relevant considerations is a matter for the decision maker, not the court (subject to Wednesbury reasonableness).

In practise, it means that public authority decision makers wold be wise to take the following steps to try and mitigate any risk associated with their decision making:

-         Fully understand the context of the decision that they are being asked to make, including how it could effect those impeded with a disability; 

-         Undertake considerable evidence gathering from a variety of sources with as much information being provided in writing as possible for future evidential purposes; 

-         When writing decisions, decision makers should be clear in outlining the information that they were provided and that they considered when reaching a decision; 

-         Advice should be taken from in house legal advisers to ensure that the information provided is adequate for the purpose of the decision being taken; 

-         Explicit reference and consideration should be given to the section 149 duty when recording any decision and a detailed consideration given to any potential risks identified.

Where decision makers are in any doubt as to their compliance with their section 149 obligations, running any decision past their in - house legal team is never a bad idea.

When challenging public sector decision makers, claimant lawyers would be well advised to actively consider the court’s checklist and scrutinise decisions to ensure that they come up to scratch and been taken in line with the court guidance.