We’ve blogged about the Public Sector Equality Duty before. It’s a legal obligation under the Equalities Act 2010 and provides a great, positive route for local authorities to think about how they reduce inequality in park provision.
As you might imagine, we’re huge fans of this and want as many people as possible to be thinking about it. So we are really pleased that we have a guest blogger this week, Philip Robson, Barrister at Kings Chambers giving the expert view on this key subject.
When I tell people that I’m a planning barrister it goes either one of three ways – they walk away (most common), they ask how to get an extension permitted, or they complain about a new development nearby. One day, maybe, we will have a conversation about how planning can deliver the homes we need, and the spaces that can strengthen our bonds, improve our wellbeing or act as a tool to improve equality.
Planning as a means of improving equality is also rare as a topic at the planning inquiries I do or the applications that I am asked to consider. This is odd, because of course it should be. In fact, it has to be something that is considered.
The Public Sector Equality Duty (‘the PSED’ for those in the know) in the Equalities Act 2010, without getting too techy, requires public authorities to have “due regard” to the need to eliminate discrimination; to advance equality of opportunity between people who share a protected characteristic and those who do not; and, to foster good relations between those same groups of people. One of the protected characteristics is gender, another is age.
As you will have spotted, there are a few terms within the PSED that require a little elaboration. One of those is the phrase “due regard”. A leading case on this is from the Court of Appeal in R. (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 and the judgment of Lord Justice McCombe. That case was about the closure by the Government of the Independent Living Fund and the consultation that preceded it. Summarising earlier judgments, McCombe LJ set out the following propositions about the PSED, in summary:
- It needs a proper analysis of all the relevant material and for decision makers to be properly informed.
- The decision maker should record their steps taken to meet the duty.
- Assessment of the risk of discrimination must be done before the decision and not as a rear guard action.
- The duty must be exercised in substance, with rigour and with an open mind.
- If the relevant material is not available, there will be a duty to acquire it, and this will frequently mean that some further consultation with appropriate groups is required.
It seems at this stage like this is a heavyweight duty that requires some serious thinking on the part of the decision maker. If the decision maker doesn’t exercise their grey matter in that way, then they risk their decision being quashed for not having done so to the required standard. Unfortunately, it has proven to be a tricky duty to enforce through the courts.
Nonetheless, some cases brought on the basis of a failure to properly discharge the PSED have had some notable successes. One example being where South Wales Police were found to have failed to take into account whether or not facial recognition software included a racial bias. Their error was not taking reasonable steps to enquire about this bias[1].
In planning cases, the PSED is not a particularly frequently used argument. Nonetheless, the planning cases that have been brought throw up some useful points:
- Discharging the PSED does not require a formal assessment, like an equality impact assessment, but it does require some assessment to be made[2].
- If there is a formal process through which views can be made, then this should be used. Failure to do so may make it harder to claim later that a public body had not discharged the PSED[3].
So how can all of this help Make Space for Girls and those who work with them?
Firstly, where there is a consultation exercise being run, whether for new planning policy, or as part of a planning application, make submissions about what policies or schemes could do to better eliminate discrimination on the basis of gender. That might include where a particular development is, *sigh* again, proposing a skate park. Or where a new policy for the provision of open space does not require consideration of equal access.
Secondly, make those submissions detailed. Part of the PSED requires enquiries to be made by the decision maker. However, those enquiries must be proportionate. If detailed submissions are made about how something is not working to eliminate discrimination, then the planning authority should enquiry further into this as part of their decision making. If you don’t raise it, it’s hard to say it hasn’t been taken into account. Tell the local planning authority why their proposed policies or a particular decision doesn’t work. There is really clear guidance from the Court of Appeal in Bridges in this regard:
181. We acknowledge that what is required by the PSED is dependent on the context and does not require the impossible. It requires the taking of reasonable steps to make enquiries about what may not yet be known to a public authority about the potential impact of a proposed decision or policy on people with the relevant characteristics,…
When this is taken together with the duty to acquire relevant information where it is not available, there is a good argument that once an issue is raised with the planning authority, they must look into it further to discharge the PSED. I must stress though, it doesn’t mean they have to agree with you.
Thirdly, scrutinise decisions that are made. If a planning authority has failed to discharge the PSED, then maybe, there will be the basis of a legal challenge.
Were a judge to find a local planning authority in breach of the PSED because it failed to take into account the needs of teenage girls in public open space provision, it could be a game changer.
And it could turn people on to the importance of planning…..perhaps.
Philip Robson, Kings Chambers
Contact PRobson@kingschambers.com; clerk@kingschambers.com
[1] R (Bridges) v Chief Constable of South Wales [2020] EWCA Civ 1058.
[2] R (Sheakh) v Lambeth LBC [2021] EWHC 1745 (Admin).
[3] R (Dawes) v Birmingham City Council [2021] EWHC 1676 (Admin).
