Declan O’Dempsey, Cloisters Chambers:
On 5 September 2011, the Department for Communities and Local Government published new statutory guidance on Best Value (Guidance).
Among other obligations, the Guidance requires local authorities to be responsive to the needs of voluntary and community sector organisations and to consult a wide range of local persons (including local, voluntary and community organisations and businesses) when commissioning and decommissioning services. Surprisingly however, the Guidance makes no mention of the public sector equality duties under section 149 of the Equality Act 2010 (PSED). For information on the PSED, see our Practice note, Public sector equality duties.
The Guidance also (as certain sections of the media picked up), suggests that:
“In the interests of economy and efficiency, it is not necessary for authorities to undertake lifestyle or diversity questionnaires of suppliers or residents.”
However, any local authority that fails to collect data on the make-up of its population and of those using its services prevents itself from having the wherewithal to meet its duties under the PSED. An authority would almost certainly be failing to have due regard by omitting this important process of data acquisition.
The Guidance, if followed in this respect, will encourage local authorities to believe, wrongly, that they do not have a duty to obtain relevant diversity information from service users in situations in which such a step is necessary for them to establish that they have had due regard to the PSED. Moreover if a local authority were to follow this Guidance and fail to collect diversity data from service users, it would make the task of understanding which functions of the authority are relevant to the aims of the PSED much more difficult.
The process of the production of the Guidance itself appears not to have had due regard to the PSED. The Impact Assessment on the Guidance (which concluded in April that a full impact assessment was not necessary) states:
“The new draft Best Value statutory guidance sets out clear expectations on councils considering cutting funding to local organisations in the voluntary and community sector, particularly around avoiding passing on disproportionate cuts. This guidance will help to balance out any possible future impacts on equalities groups arising from authorities having less funding overall.”
Bizarrely, the impact assessment also fails to answer the questions it poses. For example, when it asks “What existing sources of evidence will you use to help you identify the likely impacts on different groups of people?” it does not provide details of those sources but says which bodies it consulted over the new Guidance and how they welcomed it. It does not point to statistical data or evidence that it was going to (or did) use to help identify the likely impacts of the Guidance on different groups of people.
It is difficult to see how the Guidance could balance out any possible future impacts on equality groups arising from authorities having less funding overall. It does quite the opposite and exposes councils to the risk of claims for judicial review being brought against them. For information on the claims that have been brought by community groups this year already, see PLC Public Sector’s case reports.
The government of course cannot overrule the guidance given by the courts in this area. R (Judy Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 set out six principles including sensible guidance on what is involved in applying the PSED as enacted under previous legislation. There is no doubt that these principles apply equally to the new PSED as enacted under section 149 of the EA 2010. The Court of Appeal has made clear that the duty to have due regard must be thought of “not as a rear guard action following a concluded decision but as an essential preliminary to any such decision. Inattention to it is both unlawful and bad government” (R (C) v Secretary of State for Justice [2008] EWCA Civ 882 at 49.)
The decision in the Judy Brown case also pointed out that it is good practice to keep an adequate record showing that a public authority actually considered the PSED and pondered the relevant questions. The High Court also made it clear that this good practice encourages transparency and disciplines those making the relevant decisions to undertake investigations required under the PSED conscientiously. The government’s ostensible emphasis on transparency should make this principle even more important than it has been hitherto.
How is it going to be possible for an authority to have due regard to the effect that cuts it is contemplating making to a service will have on members of equality groups (the young, the elderly, the disabled for example) if it does not know how many of these groups are actually using the service that it proposes to cut? A lack of proper record keeping in this area has been held often to make it more difficult for a public authority to persuade a court that it has fulfilled the duty to have due regard (R (BAPIO) v Secretary of State for Home Department [2007] EWHC 199 (Admin) at 69, and R (Eisai Limited) v NICE at 92 and 94).
The assessment of relevance in practice means that the public authority is likely to focus more on the functions that have most impact on the public or a section of them or on its employees or a section of them. The EHRC, in its guidance on the public sector equality duty (The Essential Guide to the Public Sector Equality Duty) suggests that staff who are familiar with the area of work would be ideally involved in assessing the relevance of the function to equality. It suggests that authorities should keep an initial analysis of relevance as a baseline for the possibility of changes in the future. The EHRC suggests that if there is little qualitative or quantitative evidence about the effect of a function then engaging with the protected groups would be helpful. However that is another area in which councils are being told that they do not need to operate. So how do authorities that do not collect data and who do not engage with “equality groups” reach a conclusion on relevance?
When introducing the final version of the specific public sector equality duties regulations earlier in 2011 the Coalition government explained that their aim was to ensure that public authorities are transparent about their performance on equality. The difference between these and the previous specific duties is that the Coalition believes it has removed unnecessary bureaucratic processes such as the production of superfluous documents. Public authorities are told that they will have flexibility in deciding what information to publish and they are told that they will be held to account by the people they serve.
However, the new Guidance appears to encourage local authorities to avoid collecting the data which would enable them to fulfil their duty in the first place. Such a position is untenable and encourages them to breach section 149. It is difficult to see therefore how anyone looking at the proposal for the Guidance and undertaking the impact assessment could have reached the conclusion that it was likely to have a neutral impact on persons in the “equality groups” given that the PSED is a mandatory relevant consideration for local authorities.