15 years of stammeringlaw 1999-2014
Overview Disability Discrimination Employment Services Education Business Advice More...
These pages do not apply outside Great Britain.

PSED: What is 'due regard'?

The general duty of the PSED requires public authorities, and companies etc carrying out public functions, to have 'due regard' to various disability considerations. What counts as 'due regard' is at the heart of the general duty, and is considered on this page. There is a separate page on having regard to a particular disability such as stammering.

Note: this page covers the general duty under the single Public Sector Equality Duty which took effect from 5th April 2011. Previously the Disability Equality Duty applied. However the old and new general duties have much in common, and cases on what it means to have 'due regard' under the previous general duty are likely to be relevant as regards the new duty, subject perhaps to any new guidance issued.

Context

Broadly speaking, the general duty requires public authorities to have 'due regard' to the need to:

The major legal issue which arises here, and on which there have been a significant number of court decisions, is what is 'due regard'. For more detail on other aspects of the general duty, see PSED: General duty.

Note that 'specific duties' may extend the 'due regard' obligations under the 'general' duty discussed on this page. The Welsh specific duties include, for example, specific provisions on collection of information and assessing impact of policies and practices.

'Due regard' generally

The 'general duty' obliges the public authority to 'have due regard to' a list of considerations, such as the need to advance equality of opportunity. Despite the rather vague wording of the general duty, the courts have been willing to give it real teeth and claimants have won a number of cases. In the first case on a public equality duty, namely the race duty, the Court of Appeal said:

It is the clear purpose of [the general duties] to require public bodies ... to give advance consideration to issues of ... discrimination before making any policy decision that may be affected by them. That is a salutary requirement, and this provision must be seen as an integral and important part of the mechanisms for ensuring the fulfillment of the aims of anti-discrimination legislation. It is not possible to take the view that the Secretary of State's non-compliance with that provision was not a very important matter." (R (Elias) v Secretary of State for Defence [2006], Court of Appeal (link to bailii.org))

In March 2010, Baroness Thornton in the Equality Bill debates outlined the approach of the courts to having 'due regard':

"I shall try to explain what "due regard" means and how the courts interpret it. The courts have made it clear that having due regard is more than having a cursory glance at a document before arriving at a preconceived conclusion. Due regard requires public authorities, in formulating a policy, to give equality considerations the weight which is proportionate in the circumstances, given the potential impact of the policy on equality. It is not a question of box-ticking; it requires the equality impact to be considered rigorously and with an open mind."
Baroness Thornton, Parliamentary Under-Secretary of State at the Department of Health, col 1401 HL Hansard 2/3/10 (link to UK Parliament website)

Not obligation to achieve a result

The duty is not to achieve a result. It is not a duty to, for example, advance equality of opportunity or foster good relations. It is to have due regard to the need to achieve these goals. In making a particular decision, there may be countervailing factors to which it is legitimate for the authority to pay due regard also. Making this point, Dyson LJ said in R (Baker) v Secretary of State for Communities and Local Government [2008], Court of Appeal (link to bailii.org), a case on the race equality duty;

"In my view, [due regard] is the regard that is appropriate in all the circumstances. These include on the one hand the importance of the areas of life of the members of the disadvantaged racial group that are affected by the inequality of opportunity and the extent of the inequality; and on the other hand, such countervailing factors as are relevant to the function which the decision-maker is performing."

The weight to be given to the countervailing factors is a matter for the public authority concerned, rather than the court, unless the assessment by the public authority is unreasonable or irrational: R (Brown) v Secretary of State for Work and Pensions [2008], Divisional Court (link to bailii.org).

Ultimately of course the duty "is aimed at affecting the way in which bodies act. But it does so through the requirement that a process of consideration, a thought process, be undertaken at the time when decisions which could have an impact on [equality grounds], to put it broadly, are being taken." (South Norfolk Council case cited by Court of Appeal in R (Baker) v Secretary of State for Communities and Local Government [2008] (link to bailii.org)).

...but results are important

The Coalition Government has said it wants a PSED that delivers real improvements in equality, rather than authorities just following bureaucratic procedures:

"Up to now, specific duties under the existing public sector equality duties were used to prescribe processes public bodies must undertake, in the hope that this would deliver equality improvements on the ground. Public bodies were held to account for whether they followed the right processes, not whether in following those processes they delivered real equality improvements. The approach the Government now wants to take on the specific duties turns this on its head - it means that public bodies will be held to account - through greater transparency and challenge from the public - for the equality improvements they deliver, not the processes they go through. This is what will ultimately deliver on the aims of the Equality Duty - to eliminate discrimination, advance equality of opportunity and foster good relations for public sector workers and service users, not to ensure that public bodies comply with bureaucratic processes."
pdf, Policy review paper 17th March 2011 (link to equalities.gov.uk). More on specific duties for England...

The Labour Government too said that in drafting the new PSED - particularly by setting out in more detail in the general duty what it means to 'advance equality of opportunity' - the Government wanted a focus on outcomes. Clarifying what the new Equality Duty is intended to achieve "will help us move from what has in the past been perceived as a rather process-based approach to one which focuses on the achievement of outcomes" (Government response to Equality Bill consultation (pdf, link to equalities.gov.uk), July 2008).

That the Equality Act now talks of the need to 'advance' equality of opportunity may also be relevant. Bob Hepple points out in his excellent book Equality: The New Legal Framework (2011), p.135: "The earlier legislation referred to 'promoting' equality. The change of wording to 'advancing' is significant. It indicates a more proactive approach that focusses on making progress in outcomes."

As regards the first consideration to which authorities must pay due regard - namely the need to eliminate unlawful discrimination - authorities do of course have a duty not to unlawfully discriminate, by virtue of the other provisions of the Equality Act (see PSED: Remember the rest of the Equality Act). Those other provisions are not limited to paying 'due regard' to this need. However, the general duty also includes discrimination by people other than the public body, who it may regulate, or who may supply to it.

Some further points on 'due regard'

What is required by the duty to pay 'due regard' has been considered in numerous cases. A fairly recent example is R (Rahman) v Birmingham City Council [2011] (link to bailii.org). Some of the points discussed in the cases are as follows (the list is drawn particularly from the Brown case which is cited in Rahman):

The statutory Code of Practice - though not an authoritative statement of law - can be relevant in deciding whether an authority has met its duty. See eg R (Brown) v Secretary of State for Work and Pensions [2008], Divisional Court (link to bailii.org), particularly paragraphs 119-121.

Public authorities should also have 'due regard' in the procurement process.

Government guidance

The Government Equalities Office (GEO) has published an Equality Act 2010: Public Sector Equality Duty: What do I need to know?: A Quick Start Guide for Public Sector Organisations (pdf, link to GEO website). The booklet:

EHRC guidance

The guidance below and much more is in the Equality and Human Rights Commission's interim guidance for Scotland (link to EHRC). As at May 2011, England and non-devolved bodies are in the same legal position as Scotland in that the general duty but not specific duties are in force. The EHRC says:

"'Due regard' comprises two linked elements: proportionality and relevance. The weight that public authorities give to equality should be proportionate to how relevant a particular function is to equality. The greater the relevance of a function to equality, the greater the regard that should be paid."

Although formal equality impact assessments are not a statutory requirement under the general duty, the EHRC's interim guidance considers that "[a]ssessing the impact of your policies and practices on equality is one of the most effective means of demonstrating that your authority has met the general duty.....you should take a proportionate approach, concentrating your efforts on assessing to a greater extent the impact of functions which are most relevant to equality.".

The EHRC guidance also highlights the importance of gathering and using evidence: "In order to meet the general duty, we recommend that you continue to collect and analyse relevant evidence and information. It will be difficult to pay 'due regard' without sufficient information about the needs and experiences of those with different protected characteristics." Also consulting and involving protected groups will be an important source of evidence and information.

Statutory Codes of Practice will be issued by the Equality and Human Rights Commission in due course.

Top

Homepage | Equality Act in outline | Meaning of "disability" | Employment | Goods and services | Education | Human Rights Act | Proposed changes | Social security | Advice | Links | What's new | Site index | Privacy (cookies) | Disclaimer

© Allan Tyrer 1999-2011
Last updated 28th May, 2011