The Equality Act 2010: the impact on disabled people Contents

Chapter 8: The Public Sector Equality Duty

325.The public sector equality duty (PSED) was introduced by section 149 of the Equality Act 2010, which came into force on 5 April 2011. It replaced the existing duties in respect of race, disability, and gender equality. The first of these duties, the Race Equality Duty, came out of the 1999 Macpherson Report on the murder of the black teenager, Stephen Lawrence.483 Up to that point, the emphasis of equality legislation had been on rectifying cases of discrimination and harassment after they occurred. The report revealed institutional racism in the Metropolitan Police, requiring a different approach to that traditionally taken by British anti-discrimination laws. Barbara Cohen explained that “for the very first time, the law was putting obligations on public authorities to take proactive steps to eliminate discrimination and advance equality.”484 This has been described as a “transformative” approach to equality.485

326.In 2005 the Disability Discrimination Act 2005 brought in the Disability Equality Duty (DED). The proactive approach was particularly suited to the social model of disability with its emphasis on the need to remove attitudinal and environmental barriers, and the duty followed a similar pattern albeit with some notable differences—not least its emphasis on the involvement of disabled people.486

327.In 2007 the Gender Equality Duty was brought into force. Even then it was known that a single duty was likely487 and by 2009 the Equality and Human Rights Commission had produced integrated guidance on equality impact assessment covering not only the statutory duties in respect of race, disability and gender that were in law at the time,488 but also, in anticipation of the Equality Act, sexual orientation, religion or belief, and age.489

328.The single public sector equality duty not only brought together the existing duties, but extended them to the other protected characteristics under the Equality Act. The technical guidance from the EHRC explains that the duty “is intended to accelerate progress towards equality for all, by placing a responsibility on bodies subject to the duty to consider how they can work to tackle systemic discrimination and disadvantage affecting people with particular protected characteristics.”490 As with the previous statutory duties, the general public sector equality duty is supported by ‘specific duties’ designed to enable ‘better performance’ of the general duty.491

Box 9: The General Duty

Section 149 of the Equality Act requires public authorities and those exercising public functions to have due regard to the need to:

  • Eliminate discrimination, harassment and victimisation and other conduct prohibited by the Act;
  • Advance equality of opportunity between people who share a protected characteristic and those who do not; and
  • Foster good relations between people who share a protected characteristic and those who do not.

These are referred to as the three ‘aims’ of the general duty. Importantly for disability, s. 149 (4) specifies that the duty includes taking account of disabled persons’ disabilities and s. 149 (6) permits treating some persons “more favourably than others”, as long as this does not involve conduct otherwise prohibited by the Act.

The duty applies to all public authorities and those exercising public functions—including ministers and government departments, local authorities, NHS trusts and other health and social services authorities, the armed forces and the police. The functions to be considered are not only employment and services, but also less obvious functions such as commissioning and procuring goods and services, or auditing, inspecting, and regulating others. Private or not for profit organisations contracted to deliver public functions, such as operating a prison, are also bound by the duty in respect of those functions. 492

329.In May 2012, when the PSED had been in force for only a year, the Home Secretary announced, as part of the Red Tape Challenge, a review of the PSED and the Specific Duties Regulations493. The review was conducted by an Independent Steering Group which reported in September 2013. It concluded that implementation of the equality duty was patchy, often diverting resources from front-line services, and imposing burdens on the private sector. The review did not call for amendment of the Act, but recommended that public bodies should not collect diversity data unless this was necessary, they should reduce the burdens on small businesses, and they should adopt a proportionate approach to compliance, enforcement and the publishing of information. It also recommended a formal evaluation of the PSED in three years, i.e. in 2016.494 As discussed in Chapter 3, the Government followed the review with a focus, quite possibly misplaced, on reducing what it viewed as “overcompliance”.495

330.The inclusion of the PSED in the Red Tape Challenge was much criticised by witnesses. Action on Hearing Loss felt that it had “reduced the Act’s importance in the eyes of employers and organisations”.496 Liz Sayce of Disability Rights UK thought that the “Red Tape Challenge has been unfortunate in terms of narrative. We had cross-party agreement on disability equality going back to the 1995 Act and a strong commitment to promoting disability equality and equality more broadly, and suddenly the Equality Act was positioned as something that was going to be burdensome.”497

331.It is interesting to note that a review of the PSED in Wales, published in mid-2014, found limited evidence of over-compliance and that both the general duty and the Welsh specific duties “added value to … equalities work.”498

Process or outcomes

332.The concept of ‘due regard’ is central to the public sector equality duty. The EHRC Technical Guidance describes it as meaning that “in making decisions and in its other day-to-day activities a body subject to the duty must consciously consider the need to do the things set out in the general equality duty: eliminate discrimination, advance equality of opportunity and foster good relations.” The duty is ‘hard law’: if a public authority cannot show that it has been met, its decision can be overturned on judicial review. How much regard is ‘due’ will depend on the circumstances but “the greater the relevance and potential impact, the higher the regard required by the duty.”499

Box 10: Due regard in the case law

In the Bracking case the Court of Appeal reviewed the existing case law and set out in some detail the requirements of the due regard duty:

  • The duty is on the decision maker personally and they must be aware of the duty; it cannot be delegated. What matters is what he or she took into account and what he or she knew.
  • The duty must be fulfilled before and at the time a particular policy is being considered, and is a continuing one. A decision maker must assess the risk and extent of any adverse impact, and the ways in which such risk may be eliminated, before the adoption of a proposed policy.
  • The duty must be exercised in substance, with rigour, and with an open mind. General regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria. Officials reporting to or advising a decision maker on matters material to the discharge of the duty must not merely tell them what they want to hear: they have to be “rigorous in both enquiring and reporting to them”. This may require actively gathering additional information.
  • Recording the steps taken by the decision maker in seeking to meet the statutory requirements is important evidence and it is good practice for a decision maker to keep records demonstrating consideration of the duty. While there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument.
  • The concept of ‘due regard’ requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision. The decision as to the weight to be given to equality considerations in the light of all relevant factors is for the decision maker.

Source: R (on the application of Bracking) v Secretary of State for Work and Pensions [2013] EWCA 1345

333.The bulk of our evidence criticised the duty for its reliance on the concept of ‘due regard’, the “non-specificity” of which allowed “some public bodies to apparently flout the spirit of the public sector equality duty.”500 Mind told us that public authorities were confused about what the duty means in practice, leading some to overlook the proactive requirements.501 This was felt to have been exacerbated by the “dilution”502 of the specific duties, which we discuss below, and by “Government comments about what equality impact assessment means and whether it is beneficial or required … it is becoming common to paraphrase ‘due regard’ as ‘giving consideration to equality’ even though case law indicates that the general duty ‘requires more than simply giving consideration to the issue’”.503 Louise Whitfield, one of the solicitors for the claimants in the Bracking cases discussed below, felt that many public authorities were now taking the duties very seriously, but that this was not helped by confusion over the legal requirements.504

334.The problem was not, however, only one of understanding. If that were the sole problem, our recommendation to issue the EHRC’s technical guidance on the PSED as a Code of Practice would be sufficient. Nick O’Brien, former Legal Director at the Disability Rights Commission, told us: “We now know that the due regard requirement has proven to be a little weak.”505 Professor Sandra Fredman QC, in an article quoted by Clive Durdle, wondered if use of the ‘due regard’ standard was truly “an attempt to incorporate a deliberative, reflexive approach to achieving equality” or if, in reality it reflected “a fundamental ambivalence as to the importance of equality issues”.506 At the heart of the problem was that, as the Master of the Rolls said in a case concerning a challenge to the ‘bedroom tax’ or ‘spare room subsidy’:

“The PSED challenge is not concerned with the lawfulness or even the adequacy of the solution that was adopted. It is only concerned with the lawfulness of the process.”507

335.This, it was argued, means that a Minister or public authority can choose to ignore the impact of a decision on disabled people.508 The most commonly cited example of this was the judicial review of the decision of the Minister for Disabled People, in 2012, to close the Independent Living Fund (ILF). The case was successful at first instance and in the Court of Appeal,509 but the Minister’s successor carried out fresh consultation and also decided to close the fund. Andrews J decided that the Minister had considered all the matters he was required to take into account under the duty. Her conclusion was that his decision to close the Fund was therefore lawful.510

336.Commenting on that case, Jamie Grace, a lecturer and researcher in human rights law and administrative law, told us: “The PSED … can be a successful ground of judicial review which merely sees a public body required to return to its decision-making, only to re-make the same decisions”.511 Lucy Scott-Moncrieff for the Law Society said: “The trouble is that the wording of the duty is, frankly, weasel wording. It looks like it is saying one thing but actually it is saying something completely different.”512

337.Given this context it is perhaps unsurprising that witnesses compared the PSED unfavourably to the Disability Equality Duty, the Code of Practice for which stated that:

“It is important that public authorities use the disability equality duty to achieve outcomes, otherwise they are likely to find it difficult to establish that they have had due regard to the disability equality duty.”513

338.Despite these reservations, witnesses still supported the PSED: Jamie Grace argued that “keeping the PSED essentially unadulterated is vital … given the lack of other powerful ways to challenge inequalities.”514 Barbara Cohen had seen community organisations use the duty to secure change without the need to litigate: “Someone comes in and says, for example, “They are about to close down this disability centre without looking to see the disability impact”. There is an exchange of letters and the threatened action does not happen.”515 The National Aids Trust gave us an example of the positive impact using the duty could have:

“The [Crown Prosecution Service] were attempting to charge an individual living with HIV with fraud for not disclosing their HIV status to their employer … We wrote to the CPS reminding them of … their obligations under the duty and highlighting how the charge would set back equality and good relations as they apply to people living with HIV. We had a very quick response from the CPS who agreed with the points we had raised, dropped the fraud charge immediately, and also committed to reminding CPS staff about their responsibilities under the duty and Equality Act more broadly.”516

339.Louise Whitfield, while disappointed by the outcome of the Bracking case, felt that: “In my experience, once a public authority is forced to engage properly with the duty, they rarely take decisions that will be severely detrimental to disabled people if they are truly having due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations.”517 Baroness O’Neill, the Chair of the EHRC, defended the duty against those who think “that is a rather oddly vague duty, because it is a duty to have due regard”. She had “come to appreciate that its power lies in the fact that you have to have due regard when you are making a decision. … If that duty is taken seriously—and there are some good examples of it being taken seriously—it has, potentially, a very salutary impact at just the stage of decision-making when you need it.”518

340.Mind told us that:

“When used proactively by public bodies in the way it was intended, there’s no doubt the duty can lead to better services and save our public services money … by enabling informed decisions about policies and services that meet real rather than perceived need. It can also lead to fairer decisions about the allocation of resources and promote the delivery of public services which understand and meet the needs of the entire community.”519

341.Mind nevertheless felt that “the specific wording of the Act may have encouraged a “tick-box” approach, with an “emphasis on procedure rather than outcome.” They advocated replacing ‘due regard’ with an obligation to “take such steps as are necessary and proportionate for the progressive realisation of equality.”520 Disability Rights UK agreed, arguing that this reflected the phrasing found in the United Nations International Covenant on Economic, Social and Cultural Rights.521

342.The Discrimination Law Association and the Law Society took a similar approach.522 Seeking to “ensure that the duty would not only require informed consideration of equality impact but actual steps towards the elimination of discrimination, the advancement of equality of opportunity and the fostering of good relations.” They advocated supplementing the concept of ‘due regard’ with a provision stipulating that:

“To comply with the duties in this section [section 149 of the Equality Act] a public authority in the exercise of its functions, or a person within subsection (2), in the exercise of its public functions, shall take all proportionate steps towards the achievement of the matters mentioned in (a), (b) and (c) in subsection (1).”523

343.The Secretary of State defended the lack of a requirement to take such proportionate steps, arguing that “we have to balance between people having due regard and thinking about the impact of what they are doing on those with protected characteristics; and making decisions and implementing rules and changes which are going to take forward the programme of government.”524 She did not want further prescription as “the more we move to something that is prescriptive, the more red tape and tick boxes we end up encouraging, rather than Ministers standing back, having due regard and thinking about the impact of what they are doing on people with protected characteristics.”525 In contrast, Neil Crowther argued that “in the absence of … prescription, it feels like it has become more of a process-driven duty. That is a problem in itself, because you want public bodies to be creative in the way they respond to this.”526

344.We agree with the Government intention to focus on outcomes over process. However, we believe that has been undermined by a lack of attention to the need for action to meet the duty and confusion among public authorities on whether this is even required. The question is not whether we move to a more prescriptive approach; it is how to move the focus onto actions and, ultimately, results. It is important that public authorities have the flexibility to determine how they meet the statutory aims of the public sector equality duty, and to balance them against competing factors, but doing nothing should not be an option. We agree with Nick O’Brien when he told us that the approach proposed by the Discrimination Law Association “would not … unduly fetter the discretion of public authorities; it would still give them considerable room for manoeuvre.”527

345.Our evidence has demonstrated that there is a fundamental flaw in the current Public Sector Equality Duty, namely that a public authority can make no progress towards the aims of the general duty and yet be judged compliant with it by the courts. We have heard convincing evidence that an amendment is needed to remedy this.

346.We recommend that a new subsection should be added to section 149: “To comply with the duties in this section, a public authority in the exercise of its functions, or a person within subsection (2) in the exercise of its public functions, shall take all proportionate steps towards the achievement of the matters mentioned in subsection (1).”

The specific duties

347.The ‘general duty’ is supported by a set of ‘specific duties’. While the general duty is the same across England, Wales and Scotland, the specific duties are a devolved matter. This has resulted in what Lord Low of Dalston termed “a patchwork of specific duties across the country.”528 The bulk of our evidence concerned the English specific duties, and we therefore consider the duties from that perspective.

Box 11: The English Specific Duties

The Act enables the Secretary of State to make Regulations imposing further duties on public authorities, for the purpose of enabling better performance of the general equality duty. These are known as the ‘specific duties’ and are placed only on those authorities specified in the Act or in Regulations, known as ‘listed authorities’.

The specific duties in England are set out in the Equality Act 2010 (Specific Duties) Regulations 2011. 529

There are two sets of requirements:

  • The first set requires listed authorities to publish information to demonstrate their compliance with the general equality duty (‘equality information’).
  • The second requires the preparation and publication of one or more equality objectives which the authority thinks it should achieve to do any of the things mentioned in the general equality duty (‘equality objectives’).

The unspecific duties?

348.The Government explained that:

“The England-specific duties were designed to reduce the bureaucracy associated with earlier specific duties (which included action plans, annual reports, etc). The intention was to replace that process-focussed bureaucracy with outcome-focussed transparency, by encouraging public bodies to publish appropriate data showing equality outcomes.”

They believed that this had not had an “adverse effect on the consideration of disability issues in the policy and decision making processes of public bodies” because “the general PSED continues to cover disability.” 530

349.The most obvious difference between these duties and those under the Disability Equality Duty (DED) is that they are significantly less specific. The DED required each listed authority to publish a Disability Equality Scheme, setting out how it intended to fulfil its general and specific duties and involving disabled people in its development. The scheme was required to explain: how disabled people had been involved in its development, how the authority planned to assess the impact of its work, and its arrangements for gathering and using information. An action plan was also required, setting out the steps the authority planned to take to fulfil the general duty. This plan had to be delivered within three years, and the authority was required to report on what it had done.

350.Witnesses drew a stark contrast between the English specific duties and those under the DED. The TUC were concerned that:

“The specific duties legislation … only requires equality information to be published and for employers to identify ‘at least one’ equality objective across nine protected characteristics. There is no longer a requirement to publish a written disability equality scheme setting out what actions the public authority intends to take to promote disability equality and there is no longer a requirement to involve disabled people in plans to promote equality.”531

351.The Public Interest Research Unit wanted to see the duties under the DED, as “the strongest of the predecessor duties”, brought back for all protected characteristics, viewing the current specific duties as “a pale reflection of the DED specific duties” and “so weak as to be of questionable relevance.”532 Equity felt that transparency and accountability were actually lower than in the past and called for “more prescriptive monitoring arrangements”.533 Thurrock Coalition, a user-led organisation seeking to improve the lives of older and disabled people living in Thurrock, told us about a tendency by public authorities to simply state that equality implications had been ‘verified’ without further explanation or detail.534

352.Some witnesses felt that the single equalities approach had, again, left disabled people with less protection: “the Disability Equality Duty … was much more effective in getting bodies to actively take steps to achieve disability equality. The dilution of the duty in terms of concrete requirements together with the impact of multiple strands appears to have stalled progress toward disability equality.”535 Lord Low felt that the PSED had “levelled down” from the Disability Equality Duty:

“The Disability Equality Duty … was backed up by (a) detailed specific disability equality duties imposed by regulations, and (b) a statutory Code of Guidance produced by the Disability Rights Commission (DRC). Together these provided clear, detailed and specific guidance for public authorities on implementing the DED, and for the courts in ensuring that this happened. Much of this has been lost with the DED’s replacement by the PSED.”536

353.Essex County Council wanted to see greater transparency through a requirement to “publish outcomes of objectives before setting new objectives.”537 Sense wanted specific duties that “help public bodies to take proactive steps to comply with the general equality duty”.538 In contrast to the Government’s view that there had been no adverse effect on the consideration of disability issues, the Discrimination Law Association’s members reported “a detrimental effect on the inclusion of disabled people in planning services and in decision making and the resulting decisions.” They consequently called for the reintroduction of “compulsory disability equality action plans”.539 This view was echoed by People First (Self Advocacy), Inclusion London and the RNIB.540 Rachel Crasnow QC, speaking for the Bar Council, asked if equality impact assessment “was … just red tape that bodies found it annoying to comply with and wasted time and resources, or was it something which was a demonstration of how the duty had been properly carried out and a check and a balance on all the requirements of the duty as laid down in statute”?541

354.The loss of the duty to involve disabled people dismayed many witnesses. Autistic UK felt that “discussions and arrangements in regard to meeting the Public Sector Equality Duty may now, it seems, be conducted behind closed doors”.542 The “omission of any specific duty on engagement was a particular loss for people with mental health problems” because the duty under the DED “ensured that their views would be heard.”543 The University of Leeds similarly regretted the “failure of the English Regulations to specify the need for public authorities to involve or engage with stakeholders when determining their equality objectives”.544 Nick O’Brien felt that this had “diminished the duty”, because “empowerment and engagement of people in things that matter to them is probably the best way … of achieving universal vigilance.”545

Wales and Scotland

355.Witnesses contrasted the English specific duties with those in Scotland and Wales. The Scottish and Welsh Governments took a substantively different approach to that of the Westminster Government. Lord Low felt that the English duties contrasted “very poorly” with those in Wales and Scotland which “require public authorities to:

356.Rebecca Hilsenrath told us that in Wales “the specific duties give greater clarity in relation to the work of public authorities … We found that their consultation and engagement work had improved, and that was including the disability sector.”547 This clarity had reduced “the likelihood of under compliance or the tendency to over-comply due to uncertainty about what compliance means.”548 Mind reported that the Welsh approach had “led to better outcomes and a more embedded approach to equality.”549

357.The Salvation Army, as a national body, found the differences in approach problematic: “The existence of different specific duties for each part of the UK is confusing both for individuals and for national organisations … operating across England, Scotland and Wales. For example under the specific duties, the requirement to assess the impact of new or proposed policies only applies in Scotland. This promotes an inconsistent approach to involvement and engagement which results, in some cases, in the needs of people with a disability not being met.”550

358.Lord Low argued that the solution was that “the specific duty regulations … in England should be brought into line with those in Scotland and Wales.”551 This sentiment was echoed by Action on Hearing Loss and University of Leeds.552

359.While not perfect—Inclusion Scotland cited problems with public authorities’ practice, as did RNIB Cymru553—the duties in Wales and Scotland do strike us as significantly closer to those under the Disability Equality Duty that disabled people praised, not least because they better meet the Government’s aim of outcome focussed transparency. Witnesses particularly highlighted the importance of duties to involve disabled people and to develop and implement action plans. For such action plans to be effective, and transparency to be possible, equality data is also needed.

360.We recommend that the Government replace the Equality Act 2010 (Specific Duties) Regulations 2011 with provisions that require a listed public authority to develop and implement a plan of action setting out how they will meet the requirements of the general duty in all of their functions.

361.Duties to involve disabled people in the development and implementation of actions, to collect and publish data to measure progress against the aims of the general duty, and to report regularly on progress should also be specified in the Regulations.

Cumulative impact assessment

362.The question of the cumulative impact of Government decisions was raised repeatedly in our evidence, almost exclusively in relation to public spending decisions affecting disabled people.

Box 12: What is cumulative impact assessment?

Cumulative impact assessment techniques measure the overall impact of a set of changes to government policies (such as tax or welfare reforms, or changes to other public spending) on the UK population, analysed according to one or more characteristics (e.g. income level, age, family type, ethnicity, disability, and so on). Rather than looking at individual policy decisions in isolation, cumulative impact assessment helps government and the public to assess the overall impact of government policies on the population as a whole and on specific groups.

Source: Equality and Human Rights Commission, Research Report 94, Cumulative Impact Assessment: A Research Report by Landman Economics and the NIESR for the Equality and Human Rights Commission, Howard Reed and Jonathan Portes, Summer 2014, p. 5

363.Mencap had concerns “about the quality of impact assessment attached to major government policy changes” which had led to little consideration being given “to how to mitigate the negative consequences on protected groups, including disabled people.”554 Inclusion London argued: “The government urgently needs to conduct an assessment of the full impact of all cuts to support and social care for Disabled people because they are having a significant and disproportional negative impact on Disabled people.”555 This would “enable policy makers to have a much better understanding of the cumulative impact of welfare reform and public spending cuts has had on Disabled people”.556

364.In 2010 the Equality and Human Rights Commission undertook a formal assessment of HM Treasury’s 2010 Spending Review using its unique powers under section 31 of the Equality Act 2006. This assessed the extent to which the Government had met the (then) three public sector equality duties and considered whether improvements were needed. The assessment found a “serious effort” by Ministers and officials to meet their obligations, but also recommended improvements in transparency, data collection and sharing, advice and support to government departments, and the development of a common model of analysis. Further, it found that:

“No one [within the Government] has any clear idea as to how these measures [in the 2010 Spending Review] will work together and what their combined impact on protected groups might be. Thus, an opportunity to make better policy and to mitigate impact is being missed.”557

365.The EHRC therefore recommended that the Government “should consider formalising for spending decisions, the process of assessing cumulative impact”.558 In evidence to us, the Commission explained that it “strongly believes in the importance of understanding the cumulative or aggregate impact of policy and legislative changes as a means of driving improvements which will reduce the inequalities and entrenched disadvantage experienced by disabled people, many of which were highlighted as key challenges in our recent report, “Is Britain Fairer?””559

366.This view chimed with evidence from Fazilet Hadi of the RNIB who felt that:

“Equality assessments on some level are probably done, but they are not robust enough, and because we still think of budgets in particular silos or buckets, government struggles to look at the overall picture, never mind the equality picture. If you cut in health, what does that mean for social care, and if you cut in social care, what does that mean for something else?”560

Is cumulative impact assessment possible?

367.We were told that the Treasury “does not accept the scope for doing cumulative impacts across government, partly because of the amount of control that spending departments have over financial allocations in practice and because of modelling limitations associated with benefits paid to households rather than individuals.”561 This contrasts with the position of the EHRC, who told us in oral evidence that:

“Our view was that it was possible to work out whether there were respects in which people with particular characteristics or combinations of characteristics were going to be disadvantaged. That was not the view the Treasury took initially, but we disagreed about that.”562

Seeking to demonstrate that this view applies as much to assessing cumulative impact as it does to individual spending decisions, the EHRC commissioned research “to explore the cumulative impact of tax, spending and benefit changes in 2010–15”563. This found that, while further work was needed, “modelling cumulative impact assessment by protected characteristic is both feasible and practicable.”564 Despite this the EHRC “as yet have had no positive feedback from Government to suggest they might start to carry out cumulative assessments.”565

Box 13: Feasibility of cumulative impact assessment

Research by Landman Economics and the National Institute of Economic and Social Research, commissioned by the Equality and Human Rights Commission, demonstrated the possibility of cumulative impact of tax, welfare and other spending changes. It found that:

  • modelling cumulative impact assessment by equality group is feasible and practicable;
  • some such modelling was “by its very nature … experimental”, with some issues with data and methodology remaining;
  • a full picture requires examination of impacts both by income and by equality group, where possible in conjunction; and
  • modelling the impact of tax and benefit changes is easier, both conceptually and in practice, than modelling the impact of public spending changes.

Source: Equality and Human Rights Commission, Research Report 94, Cumulative Impact Assessment: A Research Report by Landman Economics and the NIESR for the Equality and Human Rights Commission, Howard Reed and Jonathan Portes, Summer 2014

368.Witnesses gave many examples of the impacts of spending decisions on disabled people. These included cuts to advice services,566 the diminishment of legal aid,567 the introduction of fees in employment tribunals568 and reductions in the budget of the EHRC.569 Access Officers had been lost570 and cuts to public transport,571 shopmobility schemes,572 hearing aid provision,573 social care,574 mental health services575 and support for disabled students576 had all had an impact. Welfare and tax reforms to “both disability and non-disability”577 benefits were a significant category in their own right, with witnesses reporting a disproportionate impact on disabled people.578 Despite the apparent protection given to Disability Living Allowance (DLA) and its replacement Personal Independence Payments (PIP),579 both Neil Crowther and the TUC argued that changes to eligibility under PIP had “caused hardship”580 and a loss of independence.581 In the light of this list we think that the conclusion that disabled people have been hit particularly hard is inescapable. Difficult decisions must be made, but they must also be done in a fair, transparent and accountable way.

369.We asked the Minister for Disabled People for his view. He described the Treasury’s “cumulative distribution analysis” as “the most comprehensive that is available, covering not only the effects of direct cash transfers between households and government, but also the effects on frontline public service provision.” However, it was “not possible to produce a cumulative impact assessment of policies on disabled people using this model”. He added that “it is for Treasury to look at and work out how to do that”.582 Ms Morgan praised the impact assessment that had been published alongside the 2015 joint Spending Review and Autumn Statement, but she had not been made aware of the EHRC research by Landman Economics and NIESR.583

370.We looked at the equality analysis published alongside the 2015 joint Spending Review and Autumn Statement to see if this shed light on the concerns of witnesses. While welcome, the assessment was somewhat insubstantial, consisting of a 14 page document with 6 paragraphs on disability. The analysis lacked the kind of details on the impact that we would have expected to back up the statement in the document that decisions “had taken account of the possible impacts on people with disabilities.”584 We do not see this as an adequate replacement for the type of cumulative impact assessment called for by witnesses, and are disappointed that the Ministers were not more ambitious in their expectations of the Treasury’s efforts on equality.

371.Worryingly, we also heard that the Secretary of State for Work and Pensions had turned down an offer of assistance from the EHRC, who wrote to him in September 2015 offering practical suggestions to strengthen the equality analysis of the Welfare Reform and Work Bill. That Bill proposes, among other measures, significant changes to the benefits of disabled people within the ‘Work-Related Activity Group’ of the Employment Support Allowance.585 The Secretary of State for Work and Pensions declined the EHRC’s offer, instead stating his belief that the assessments already used “the most robust analysis available”.586 Unsurprisingly, the EHRC disagreed, and we share their concern that the resulting assessment lacks the necessary “depth” of analysis.587

372.Whilst we had no mandate to examine the effects of each individual spending decision, we do not agree with the Treasury that it is not possible to assess the cumulative impact of such decisions. Doing so would require effort, including on harmonising data sets, but that should not be beyond the ability of Government Departments. The ease of the exercise would be greatly increased by our recommendation to restore specific duties on the collection and use of data. We recommend that the Government produce an assessment of the cumulative impact of budgets and other major initiatives on disabled people. It should be supported in this by the Government Equalities Office and the Office for Disability Issues.

Government review

373.The 2013 review of the public sector equality duty discussed above recommended that the duty be reviewed again in 2016. The Secretary of State told us that: “We are currently working through that at the moment and deciding what any review might be.”588

374.The planned review presents an opportunity for the Government to redress the unfortunate shift in tone on equality following the inclusion of the PSED, and the wider Equality Act, in the Red Tape Challenge. The Government will need to ensure that the review is able to command the confidence of disabled people, not least by involving them directly in the review and any decision making.

375.We recommend that our findings and recommendations regarding the Public Sector Equality Duty form the basis of the planned Government review.

483 The Stephen Lawrence Inquiry, Report of an Inquiry by Sir William Macpherson of Cluny, Cm 4262–I, February 1999

484 Q 48 (Barbara Cohen)

485 Written evidence from the University of Leeds (EQD0125)

486 Written evidence from the University of Leeds (EQD0125)

487 Equal Opportunities Commission, Gender Equality Duty Code of Practice England and Wales (November 2006) Jenny Watson introduction.

488 The protected characteristics of gender reassignment and pregnancy and maternity were, at that time, to be considered under the Gender Equality Duty.

489 Equality and Human Rights Commission, Equality impact assessment guidance: A step-by-step guide to integrating equality impact assessment into policy making and review (November 2009): [accessed 4 March 2016]

490 Equality and Human Rights Commission, Equality Act 2010: Technical Guidance on the Public Sector Equality Duty in England (January 2013): [accessed 4 March 2016]

491 Equality Act 2010, section 153

492 Equality and Human Rights Commission, Equality Act 2010: Technical Guidance on the Public Sector Equality Duty in England (January 2013): [accessed 4 March 2016]

493 Equality Act 2010 (Specific Duties) Regulations 2011. These are discussed further below at paras 347–361

494 Government Equalities Office, Review of the Public Sector Equality Duty: Report of the Independent Steering Group (September 2013): [accessed 3 March 2016]

495 Q 9 (Charles M Ramsden), see para 103

496 Written evidence from Action on Hearing Loss (EQD0128)

497 Q 22 (Liz Sayce)

498 Equality and Human Rights Commission Wales, Review of the Public Sector Equality Duty in Wales (July 2014) p 5: [accessed 3 March 2016]

499 Equality and Human Rights Commission, Equality Act 2010: Technical Guidance on the Public Sector Equality Duty in England (January 2013) para 2.20: [accessed 4 March 2016]

500 Written evidence from Aspire (EQD0025)

501 Written evidence from Mind (EQD0147)

502 Written evidence from RNIB (EQD0164)

503 Written evidence from Mind (EQD0147)

504 Written evidence from Louise Whitfield (EQD0090)

505 Q 162 (Nick O’Brien)

506 Written evidence from Clive Durdle (EQD0048) citing Fredman S, The Public Sector Equality Duty, Industrial Law Journal, vol. 40, no. 4 (December 2011)

507 R (on the application of MA & others) v the Secretary of State for Work and Pensions, Equality and Human Rights Commission intervening [2014] EWCA Civ 13

508 Written evidence from the Alliance for Inclusive Education (EQD0110)

509 Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 (generally known as ‘Bracking 1’)

510 R (Aspinall) (formerly Bracking) v Secretary of State for Work and Pensions [2014] EWHC 4144 (Admin) (generally known as ‘Bracking 2)

511 Written evidence from Jamie Grace (EQD0028)

512 Q 48 (Lucy Scott-Moncrieff)

513 Disability Rights Commission, The Duty to Promote Disability Equality: Statutory Code of Practice: England and Wales, 2005, para 2.66

514 Written evidence from Jamie Grace (EQD0028)

515 Q 48 (Barbara Cohen)

516 Written evidence from the National AIDS Trust (EQD0136)

517 Written evidence from Louise Whitfield (EQD0090)

518 31 (Baroness O’Neill of Bengarve)

519 Written evidence from Mind (EQD0147)

520 Ibid.

521 Written evidence from Disability Rights UK (EQD0105)

522 Written evidence from Discrimination Law Association (EQD0129) and The Law Society (EQD0163)

523 Written evidence from Discrimination Law Association (EQD0129)

524 Q 177 (Nicky Morgan MP)

525 Ibid.

526 Q 163 (Neil Crowther)

527 Q 162 (Nick O’Brien)

528 Written evidence from Lord Low of Dalston (EQD0165)

529 Equality Act 2010 (Specific Duties) Regulations 2011 (SI 2011/2260)

530 Written evidence from HM Government through the Department for Education (EQD0121)

531 Written evidence from the TUC (EQD0055)

532 Written evidence from the Public Interest Research Unit (EQD0069)

533 Written evidence from Equity (EQD0064)

534 Written evidence from Thurrock Coalition (EQD0068)

535 Written evidence from the RNIB (EQD0164)

536 Written evidence from Lord Low of Dalston (EQD0165)

537 Written evidence from Essex County Council (EQD0039)

538 Written evidence from Sense (EQD0122)

539 Written evidence from the Discrimination Law Association (EQD0129)

540 Written evidence from People First (Self Advocacy) (EQD0134), Inclusion London (EQD0075) and the RNIB (EQD0164)

541 Q 49 (Rachel Crasnow QC)

542 Written evidence from Autistic UK (EQD0170)

543 Written evidence from Mind (EQD0147)

544 Written evidence from the University of Leeds (EQD0125)

545 Q 162 (Nick O’Brien)

546 Written evidence from Lord Low of Dalston (EQD0165)

547 Q 33 (Rebecca Hilsenrath)

548 Written evidence from Lord Low of Dalston (EQD0165) and Action on Hearing Loss (EQD0128) both citing Equality and Human Rights Commission Wales, Review of the Public Sector Equality Duty (PSED) in Wales: Executive Summary, 2014:

549 Written evidence from Mind (EQD0147)

550 Written evidence from The Salvation Army (EQD0112)

551 Written evidence from Lord Low of Dalston (EQD0165)

552 Written evidence from Action on Hearing Loss (EQD0128) and the University of Leeds (EQD0125)

553 Written evidence from Inclusion Scotland (EQD0082) and RNIB, Appendix 1 (EQD0164)

554 Written evidence from Mencap (EQD0157)

555 Written evidence from Inclusion London (EQD0075)

556 Ibid.

557 Equality and Human Rights Commission, Making fair financial decisions (May 2012) p 22: [accessed 3 March 2016]

558 Ibid.

559 Supplementary written evidence from the EHRC (EQD0190)

560 Q 23 (Fazilet Hadi)

561 Q 9 (Charles M Ramsden)

562 Q 37 (Baroness O’Neill of Bengarve)

563 Supplementary written evidence from the EHRC (EQD0190), referring to the Landman Economics report outlined in box 12

564 Supplementary written evidence from the EHRC (EQD0190)

565 Ibid.

566 Written evidence from the Law Centres Network (EQD0135); Q 165 (Nick O’Brien)

567 Written evidence from Deaf Ex-Mainstreamers Group (EQD0150) and Disability Rights UK (EQD0105); Q 165 (Nick O’Brien) and Q 108 (Paul Breckell)

568 Written evidence from Discrimination Law Association (EQD0129) and Mind (EQD0147)

569 Disability Law Service (EQD0051), Q 74 (Dr Purton), Q 158 (Neil Crowther)

570 135 (Councillor Jonathan McShane)

571 Written evidence from Hertfordshire Equality Council (EQD0120)

572 Written evidence from Lewisham Shopmobility (EQD0015)

573 Written evidence from Action on Hearing Loss (EQD0128)

574 Written evidence from Inclusion London (EQD0075)

575 Written evidence from Mind (EQD0147)

576 Written evidence from Disability Rights UK (EQD0105) and The National Deaf Children’s Society (EQD0053)

577 Written evidence from Inclusion Scotland (EQD0082)

578 Written evidence from Inclusion Scotland (EQD0082), Pembrokeshire People First (EQD0057), The Public Interest Research Unit (EQD0069), National Deaf Children’s Society (EQD0053) and Hertfordshire Equality Council (EQD0120)

579 Q 23 (Liz Sayce); written evidence from Disability Rights UK (EQD0105)

580 Written evidence from TUC (EQD0055)

581 Q 164 (Neil Crowther)

582 QQ 175–176 (Justin Tomlinson MP)

583 Q 175 (Nicky Morgan MP)

584 HM Treasury, Impact on equalities: analysis to accompany Spending Review and Autumn Statement 2015 (November 2015) Para 2.16: [accessed 4 March 2016]

585 Letter from Rebecca Hilsenrath to Rt Hon Ian Duncan Smith MP, Secretary of State for Work and Pensions, 16 September 2015: [accesssed 17 March 2016]

586 Letter from Rt Hon Ian Duncan Smith MP, Secretary of State for Work and Pensions to Rebecca Hilsenrath, 13 October 2015:–10-13%20SoS%20to%20R%20Hilsenrath%20-%20EHRC.PDF [accesssed 17 March 2016]

587 Equality and Human Rights Commission Briefing on the Welfare Reform and Work Bill; House of Commons Report Stage, 27 October 2015:

588 Q 177 (Nicky Morgan MP)

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