Introduction

The public sector equality duty places a proactive duty on councils to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between different people when carrying out their activities.

In practice, this means councils must be able to demonstrate how they thought about equality and fairness when they design and deliver services. Importantly, they should evidence how they have done this, and keep policies and practices under review. One way to do this is by conducting Equality Impact Assessments that demonstrate the council’s regard to relevant issues.

There may be circumstances where Councils design services which means certain groups of people are treated less favourably, but they can only do this when it represents a proportionate way of achieving a legitimate aim. In these circumstances, we expect to see a record of the justification. The council should ask itself:

• Who does this policy or service impact?
• What is the legitimate aim of the policy?
• Will any group be advantaged or disadvantaged?
• In either case, is the proposed approach the most proportionate way of achieving the aim?

If the council has properly considered a matter, taking into account all relevant information, we are unlikely to find fault.

The public sector equality duty applies to all council services. While in some areas, like children’s social services, it is often clearer that decisions will have equality implications, councils must have similar regard to their duty in areas where this is not so immediately apparent. Jamal’s story below highlights this point.

Laura’s story: Not having regard to the public sector equality duty

(Case ref: 21 0014 07)

Laura is a single mother of four children, one of whom was a newborn. She moved into the council’s area after fleeing domestic abuse.

Laura was affected by the benefit cap, which meant she didn’t have enough income to pay her rent. For around nine months, the council helped her by providing discretionary housing payments (DHP) to meet the shortfall.

Laura applied for help again. She was pregnant and caring for her baby, still under one year old, so she could not work. The council refused to help Laura. It said she should look for work.

What we found

The council did not have a written policy for discretionary housing payments. It told us it made decisions about applications in line with the government guidance on DHPs.

The council also said it had been affected by a reduction in funding for DHPs along with an increased demand, which led to a change in practice.

The council had not done an equality impact assessment before changing its practice on DHPs. We asked it how it had assessed any potential impact of the change on people with protected characteristics, such as pregnancy. It had not done any assessment.

We said the council failed to have due regard to its public sector equality duty because it could not prove it had considered the impact of the changes on vulnerable groups.

Putting it right

The council agreed to apologise to Laura, pay her a token amount for her distress and uncertainty, and make a new decision on her DHP application. 
To improve the council’s services, we recommended it produce written guidance for its staff on handling DHP applications, informed by an equality impact assessment.

Jon’s story: Balancing rights and risk

(Case ref: 21 010 672)

Jon complained about the council’s decision to require cyclists to dismount on certain sections of a trail.

Jon has disabilities which mean walking is difficult and painful. Since he cannot dismount to walk, the council’s decision effectively prevented him using the whole trail.

The council required cyclists to dismount on short stretches of the trail in its busiest areas. The restriction applies between 10am and 6pm from May to September. Alternative routes via the road are available to avoid the restricted areas.

What we found

We decided to close the complaint after an initial investigation because we were unlikely to find fault. We could see the council had assessed the risk to all users of the trail and implemented a scheme to minimise the risk with the least interference to cyclists.

The scheme had a legitimate aim: reducing risk of accidents to users of the trail. 

A particular group was disadvantaged: cyclists who would struggle or be unable to dismount.

But the council had ensured the restriction was proportionate by only implementing it at the busiest times and in the busiest places. 

It had therefore given due regard to its public sector equality duty in making its decision.

Jamal’s story: Equal access to facilities

(Case ref: 20 013 552)

Jamal has a disability which affects his manual dexterity. He lives near a council-owned field which is open to the public. Jamal said he uses the field regularly for walks and exercise. A local football club leases some of the field as a football pitch. 

The football club told the council about its plans to put up fences to protect the pitch, which included a gate to access it. The council agreed, subject to a condition that the club were “not to prevent the general public having access to the playing field except if they prevent or interfere with any sporting activities carried out by the club.”

Jamal complained to the council. He said the gate prevented him accessing the field because his disability meant he couldn’t open the gate independently. In response, the council said it would ask the football club to pin the gate open when the pitch was not in use.

Jamal said the club was not leaving the gate open and so he, and any others with similar disabilities, could not access the pitch.

What we found

The whole field, including the football pitch, is open for the public to enjoy. Therefore, the council’s public sector equality duty is to ensure meant it had to due regard for how all members of the public, including those with disabilities, can access the football pitch (apart from when being used for matches) even though it is a small proportion of the field. 

We said the council failed to ensure take account of how the gate enabled might impact on those people with disabilities who wanted to use the pitch, so it had not had due regard to its public sector equality duty. The fault was also likely to have caused others with similar disabilities an injustice.

Putting it right

The council agreed to apologise to Jamal and meet him to discuss how it can meet his needs to access the pitch.
It also agreed to work with the football club to carry out any work necessary to the gate to ensure it met its public sector equality duty.