We look at the ‘public sector equality duty’ by referencing two recent cases where failure to adequately consider and monitor the impact of policies was challenges as discriminatory against people with protected characteristics. We also zoom in on a case which drew attention to the nationwide shortage of secure accommodation for children and young people.
High Court judgment shines spotlight on children in care and nationwide shortage of secure accommodation
This case concerned an application to the High Court by a local authority to renew authorisation for the deprivation of liberty of a 15-year-old girl described by the judge as “extremely vulnerable young person, with complex needs” who “desperately needs a secure, boundaried setting with therapy and education”.
Samantha*, who experienced “a chaotic childhood, with little security or stability”, has a history of running away from care and going missing, serious and repeated incidents of self-harm and being found under the influence of drugs. In April 2019 she was assessed as “at high risk of death” by the Child and Adolescent Mental Health Services crisis team.
Following unsuccessful placements with family members, with foster carers, in children’s homes and in one secure unit, in late 2019 the High Court authorised, for the first time, deprivation of liberty in accommodation other than secure provision. At the time of the judgment Samantha had experienced 15 moves in 12 months and had lived in “7 different unregistered children’s homes”. Samantha is currently staying in a holiday cottage rented solely for the purpose of accommodating her. As the short-term let is due to expire in June, she will have to move again soon.
The judge recognised that insufficiency of local provision means that many local authorities are unable to meet the needs of all of the children who require secure accommodation. At the same time, the judge highlighted that when a child is placed in an unregistered children’s home, the urgency of a situation does not truly make it any more acceptable: “It is important to emphasise that it is a criminal offence to run a children’s home without the appropriate registration […] It is of course a particular concern that placements of young people in unregistered provision are not uncommonly accompanied by applications in the High Court (as here) for authorisation to deprive the young person of their liberty”.
The judge directed that a copy of the ruling be sent to the Education Secretary, the Chair of the Residential Care Leadership Board, the Children’s Minister and the Chief Social Worker to “raise awareness” of the plight of children who need secure accommodation but, due to nationwide shortage, are instead accommodated in unregulated or unregistered placements.
You can access the full judgment here.
*Samantha is a name chosen by the girl to be known by in this judgment.
Legal challenge leads to review of the Met Police safer schools policy
The family of a black autistic boy brought a legal challenge against the Metropolitan Police after he was investigated by the Crown Prosecution Service (CPS) following a verbal altercation with a member of staff at his school. In addition to the school imposing a sanction of suspension, the staff member involved in the incident reported it directly to the school-based police officer, which led to a CPS investigation.
The case raised concerns that the presence of police officers in schools might have “disproportionately negative consequences” for boys from black and minority ethnic communities and/or children with special educational needs and disabilities, “causing them to be drawn into the criminal justice system unnecessarily”. Lawyers acting on behalf of the family requested and were granted permission to apply for judicial review – a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. The challenge was based on alleged failure to comply with the Public Sector Equality Duty (PSED) by not gathering, monitoring and addressing the equality implications of the policy which sees officers being deployed in schools.
The PSED (Section 149 of the Equality Act 2010) requires public authorities, such as local councils, schools, prisons and the police, to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations when exercising their public functions.
Lawyers acting on behalf of the family said: “Deploying police officers in schools may have benefits for students and the wider school community […] However, it is of obvious importance that the Met understands, monitors and addresses the equality implications of deploying police officers in schools. It simply cannot be done without the collection and analysis of relevant data”.
The Met Police has since agreed to collect and analyse data on the equality implications of this policy in its area, so there was no need for the case to progress to court.
Charges for care legally challenged as discriminatory
This ongoing case involves a 24-year-old woman who has Down’s Syndrome and learning difficulties. The case against Norfolk County Council and the Secretary of State for Health and Social Care is two-pronged: it challenges the cut to the young woman’s Minimum Income Guarantee (MIG) alongside the decision to include all of the Enhanced Daily Rate Living Personal Independence Payment (PIP) when calculating her contribution to care charges from April 2020. It is being argued that these decisions will make it “virtually impossible” for her to afford to move into supported independent living and that she will become isolated by not being able to engage in social activities due to insufficient disposable income.
Lawyers representing the young woman argue that the council’s charging policy discriminates against severely disabled people not in work, which breaches Article 14 of the ECHR (prohibition of discrimination) read with Article 1 of Protocol 1 (protection of property) and Article 8 (right to respect for private and family life). They also argue that it discriminates against adults with Down’s Syndrome, a protected characteristic under the Equality Act 2010, (based on Section 19 – indirect discrimination and Section 29 – discrimination in the provision of public services) and that the council has failed to discharge its Public Sector Equality Duty. We will keep you updated of the case as it progresses. Meanwhile, you can read more here and here.
Public sector equality duty
The public sector equality duty, or PSED, (Section 149 of the Equality Act 2010) imposes a three-part ‘due regard’ equality duty on public authorities in respect of their performance of public functions. (Examples of public functions include managing school admissions, responding to complaints about children’s social care and providing assistance to children and families in need). The three parts are:
* the need to eliminate discrimination,
* the need to advance equality of opportunity, and
* the need to foster good relations (which includes tackling prejudice and promoting understanding).
PSED is a positive duty, which means public authorities must take active steps to work towards the achievement of these general equality objectives.
The so called ‘Brown principles’* elaborate on the meaning of ‘due regard’ by clarifying that: the duty requires a conscious approach before and during the actions that might impact on equalities (rather than justifying decisions after they have been made); the duty should not be treated as a ‘box-ticking’ exercise but be completed “with rigour and an open mind”; the duty is a continuing obligation and it cannot be delegated. Importantly, according to the Brown principles, it is considered good practice for those exercising public functions to keep an adequate record showing how the duty was considered as this encourages transparency and conscientiousness.
*These principles were established by a court considering a disability discrimination claim brought by a woman (Judy Brown) affected by the closure of her local post office.