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Public sector equality duty (PSED)

From 5th April 2011, the previous Disability Equality Duty on public authorities is replaced by a single 'Public Sector Equality Duty'. The changes are made by the Equality Act 2010.

WARNING: The PSED pages on this website have not yet been updated for the Equality and Human Rights Commission's Technical Guidance on the Public Sector Equality Duty (link to EHRC), issued in January 2013. More: Guidance and Codes of Practice: Technical guidance.

Overview

At the heart of the PSED is the 'general duty' (see below General duty). This requires public bodies to have due regard to the need to -

as regards disability and various other grounds including race and gender. There have been numerous cases on the duty, mainly on what it means to have 'due regard'.

The 'general duty' is is supported by 'specific duties' (see below Specific duties).

The PSED is in addition to the authority's obligations under the normal Equality Act rules, for example on provision of services, public functions and employment. The PSED applies more widely than these other rules (see below What is covered), but focuses on the process of making decisions. The PSED requires that appropriate consideration be given to the need to advance equal opportunity for disabled people etc (see What is 'due regard'?). The PSED does not say that authorities must not discriminate, or must make reasonable adjustments etc - that is the role of other Equality Act provisions: see below Remember the rest of the Equality Act.

Future changes?

There has just been a review of the PSED. This was published in September 2013.

Aim of the PSED - 'mainstreaming'

The Minister, Lynne Featherstone, summarised the aim of the duty:

"Just as with previous race, disability and gender equality legislation, the duty aims to ensure that the consideration of issues of equality forms part of the day-to-day routine of decision making and the operational delivery of public bodies."
Lynne Featherstone, Minister for Equalities, 11th July 2011 (link to Hansard).

So the aim is the same as the previous Disability Equality Duty, which the PSED replaces (below History). Organisations across the public sector - including hospitals, local and central government, schools and colleges - are required to be proactive in advancing disability equality, and indeed other forms of equality.

The idea is that disability should be 'mainstreamed'. Disabled people and disability equality should be taken into account from the outset, rather than focusing on individualised responses to specific disabled people. Mainstreaming should help identify from the start unnecessary barriers to equal participation for disabled people, as well as encouraging authorities to take 'positive action' measures where permitted.

What is covered?

Bodies covered

The general duty, ie. to have 'due regard', applies to most public bodies, for example central and local government, schools, universites, hospitals and the police. Private companies and voluntary sector organisations are also subject to the general duty so far as they perform a public function. See PSED: General Duty: What bodies are covered by the general duty?. The specific duties are somewhat more limited but should cover most major public bodies.

Examples of activities covered

In the main, the general duty applies to all functions of public bodies, as well as the public functions of private bodies. Some examples include (but are not limited to):

The 'general duty'

Like the Disability Equality Duty before it, the Public Sector Equality Duty has two parts. First there is the 'general duty'. In broad terms, this obliges public authorities to have due regard to the need to:

The courts have taken the approach the general duty is an important duty which public authorities need to observe, and there are numerous cases in which authorities have been taken to task for failing to do so. For more, see PSED: General Duty.

Specific duties

The second part of the Public Sector Equality Duty is the 'specific' duties. These are designed to support performance of the general duty, and are set out in regulations.

Before April 2011 the 'specific duties' required authorities to produce equality schemes. Those rules no longer apply.

The purpose of the [specific duty] regulations is to help public bodies in the better performance of the equality duty - we should not lose sight of that key point during the debate. The general duty is the key provision, which is in place and is broader than previous duties. The specific duties are designed simply to help public bodies to perform the general duty better.
Lynne Featherstone MP, Parliamentary Under Secretary of State, Minister for Equalities, 11th July 2011 (link to Hansard).

England, Wales, Scotland and non-devolved bodies

There are different specific duties for bodies in different areas of Great Britain:

Technically, the question is whether the body is listed in EqA Schedule 19 Part 1 (England and non-devolved bodies) Part 2 (Wales), or Part 3 (Scotland) - see below Schedule 19.

Schedule 19

Schedule 19 of the Equality Act 2010 lists authorities which are subject to the general duty and can, by regulations, be subjected to 'specific duties'. The general duty goes beyond bodies listed in Schedule 19 in that it also covers companies etc carrying out public functions, but 'specific duties' can only be imposed on bodies listed in Schedule 19. For an unoffical version of the Schedule, including later additions up to April 2011, see Schedule 19 Equality Act 2010, consolidated April 2011 (link to homeoffice.gov.uk/equalities).

Whether the 'specific duties' of an authority are determined by regulations of the Westminster government (English and non-devolved bodies), the Welsh Government or Scottish Government depends on whether the authority is listed in Part 1, 2 or 3 respectively of Schedule 19. This Schedule as amended also has a Part 4 listing 'cross-border authorities'; which government makes regulations for these is designated by a code letter next to the name of the authority, according to EqA s.154.

Enforcement

The courts have been willing to see the PSED, particularly the general duty, as an important obligation with which authorities must comply. It is possible for an individual or organisation to bring an action for judicial review, and the EHRC can enforce the duties. Much more often, however, the duties will be used outside a court context as a basis to question, or complain to an authority about, its lack of regard to disability issues. For more see Enforcing the duty.

Localism Bill

There is an issue whether the Localism Bill (link to EHRC briefing) may to some extent lessen the effectiveness of the Public Sector Equality Duty.

Remember the rest of the Equality Act

The PSED is in addition to the body's obligations under the normal Equality Act rules relating to employment, provision of services, exercise of public functions and education etc. These are the 'individual rights' which form the bulk of the Equality Act, ie they are aimed at creating rights for individuals who have been discriminated against. Where these individual rights apply, it will normally make sense not to focus only on the PSED. (See above What is covered for some idea of the overlap between the PSED and other duties). Although the PSED can be helpful, the authority may well have breached an individual right anyway, such as the obligation to make reasonable adjustments in respect of services or public functions.

A particular strength of the PSED is in requiring disability to be taken into account at the outset when making decisions rather than after the event. Remember though that even without the PSED, the reasonable adjustment duty in respect of services and public functions, for example, is 'anticipatory', even though it can be claimed as an individual right. So authorities - and other service providers - are required to consider needs of disabled people even before a particular individual presents themself. (This can also be the effect of the prohibition on indirect discrimiation, another individual right.) The PSED and individual rights under other parts of the Equality Act may complement each other.

Even if there is no 'anticipatory' obligation, a disabled person may have an individual right under the Equality Act whether or not the PSED applies.

Guidance and other links

History

Under previous legislation there were separate equality duties on public bodies. These covered race, disability and gender. The duty relating to disability, the 'Disability Equality Duty', had been in effect since December 2006. These separate duties have now been replaced by a single Public Sector Equality Duty (PSED) under EqA s.149ff, from 5th April 2011 (SI 2011/1066).

As well as race, disability and gender, this single PSED also covers age, gender reassignment, pregnancy and maternity, race, religion or belief, sex, and sexual orientation, and to a limited extent marriage and civil partnership.

Apart from the new duty now covering these other grounds of discrimination, the main change under Equality Act 2010 is to the content of the 'specific duties' (see above), which previously required authorities to produce 'equality schemes'.

The Order which brought the new single PSED into effect from 5th April 2011 is SI 2011/1066 (link to legislation.gov.uk).

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© Allan Tyrer 1999-2012
Last updated 13th September, 2011 (part update 16th January, 2013)