1. Leander Neckles, Necko Consultancy working for the Race Equality Foundation The Public Sector Equality Duty (PSED) and health and social care inequalities 1

2. This presentation A: An introduction to the Public Sector Equality Duty (PSED): about the PSED; the PSED - housing, health & social care; due regard and equality of opportunity; due regard and fostering good relations and disabled people; the importance of the PSED; health bodies subject to the PSED under the Health and Social Care Act 2012. B: The specific equality duties: their purpose & divergent approaches in England, Scotland and Wales; the specific equality duties for England. C: The Government’s review of the PSED : scope of the PSED review; the PSED review key events; about the PSED review; progress during 2013 and the review published on 6/9/13. D: The health and Social Care Act and new duties: 2

3. A(2): About the PSED/Equality Duty The PSED or Equality Duty is set out in Section 149 of the Equality Act 2010: it replaced the old race, disability and gender equality duties which had come into force between 2001 and 2007; is a new stronger integrated and expanded duty in force on 5 th April 2011; covers 8 of the 9 protected characteristics fully; covers marriage and civil partnership in relation to unlawful discrimination; sets out, in the primary legislation, what due regard means. Section 149 (1): A public authority must, in the exercise of its functions, have due regard to the need to: eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; foster good relations between persons who share a relevant protected characteristic and persons who do not share it. Section 149 (7): The 8 protected characteristics fully covered are: 1) age; 2) disability; 3) gender reassignment; 4) pregnancy and maternity; 5) race; 6) religion or belief; 7) sex; & 8) sexual orientation. 3

4. A(3): The PSED – health, housing & social care ‘A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).’ Equality Act 2010, section 149 (2) The duty may apply to organisations that carry out public functions incl. grant-aided organisations and those with service agreements or contracts with public bodies. A ‘public function is a function that is of a public nature for the purposes of the Human Rights Act.’ [section 150 (3)] Health and Social Care Act 2008, Section 145: where a private or voluntary sector care home provider provides accommodation together with nursing or personal care to a person under arrangements made with a local authority …under certain statutory provisions the provider is exercising a function of a public nature under section 6(3)(b) of the HRA1998. Case law also says that social housing landlords’ housing management is an exercise of a public function (Weaver vs London and Quadrant HA). 4

5. A(4): The PSED – Section 149 (3) due regard and equality of opportunity ‘Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to: remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.’ 5

6. A(5): The PSED and due regard – good relations, disabled people & more favourable treatment The PSED (section 149 (5)), explains what fostering good relations means by stating that ‘Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to: a) tackle prejudice; and b) promote understanding.’ The PSED makes it clear that having due regard to the need to advance equality of opportunity between disabled people and non-disabled people includes: consideration of the need to take steps to take account of disabled people’s disabilities (section 149 (4)); and might mean treating some people more favourably than others, where doing so is allowed by the Act (section 149 (6)). 6

7. A(6): The importance of the PSED according to Baroness Verma, HoL ‘The objective behind the new equality duty, like the previous race, disability and gender equality duties, is to ensure that consideration of equality forms part of the day-to-day decision- making and operational delivery of public bodies. The new duty is considerably stronger than those previous duties. As well as extending to all nine protected characteristics, it also sets out in primary legislation for the first time what considering the need to advance equality of opportunity involves. Section 149(3) of the Equality Act 2010 makes clear that in particular it involves considering the need to remove or minimise disadvantages suffered by people who share particular protected characteristics, to take steps to meet their particular needs, and to encourage people who share particular protected characteristics to get involved in public life and other activities where their participation is disproportionately low.’ The specific equality duties for England – HoL debate - 6/9/11 7

8. A (7): Health and Social Care Act 2012 – new bodies subject to the PSED & EHRC concerns A clinical commissioning group established under section 14D of the National Health Service Act 2006. Health Service Commissioner for England. The Health and Social Care Information Centre. Local Health Watch organisations. Monitor. The National Health Service Commissioning Board. The National Institute for Health and Care Excellence. EHRC: The EHRC sought an amendment to the bill to clarify ‘that private or third sector health care providers commissioned to provide NHS services are performing public functions within the meaning of the Equality Act 2010 (s149(2)) and the Human Rights Act 1998 (s6(3)(b)) and therefore patients are protected by the rights and obligations of each.’ EHRC: Sought clarification that all relevant NHS bodies would be expressly listed and would be subject to the general and specific equality duties. [EHRC briefing on the bill, HoL 2 nd reading of the Health & Social Care Bill, October 2011]. 8

9. B(1): The purpose of the specific equality duties - divergent approaches in Wales, England & Scotland Specific equality duties – their purpose: ‘A Minister of the Crown, Welsh Ministers or Scottish Ministers may by regulation impose duties of a public body... For the purpose of enabling the better performance by the authority of the duty imposed by section 149 (1).’ Equality Act 2010 (section 153(1) Specific equality duties (SEDs) - separate SEDs for: Wales - from April 2011 – 20 regulations; England - from September 2011 – 3 regulations; Scotland - from May 2012 – 12 regulations. The SEDs for England are the weakest. The SEDs for Scotland and Wales - http://www.legislation.gov.uk/wsi/2011/1064/made and http://www.legislation.gov.uk/sdsi/2012/9780111016718/contents 9

10. B(2): The specific equality duties for England and public bodies Three requirements on listed public bodies subject to the PSED: to publish information annually (from January or April 2012); to publish equality objectives every 4 years (from April 2012); to publish information ‘in a manner that the information is accessible to the public.’ What information has to be published by a listed public body? the information must include, in particular, information relating to persons who share a relevant protected characteristic who are: its employees (but not where less than 150 employees); other persons affected by its policies and practices. 10

11. C(1): Scope of the PSED Review Government announced that the effectiveness of the PSED specific duties would be reviewed - September 2011. “We committed last year to assess the effectiveness of the PSED specific duties. We have decided to bring forward that review and extend it to include both the general and specific duties to establish whether the Duty is operating as intended.” (Written Ministerial Statement – Home Secretary, 15th May 2012) This is not a new review however the Government has brought forward the planned review the general due-regard Equality Duty which was due to form part of the Equality Act review in 2015. The purpose of the review – ‘a review of the public sector Equality Duty (PSED) to establish whether the Duty is operating as intended.’ https://www.gov.uk/government/policy-advisory-groups/review- of-public-sector-equality-duty-steering-group 11

12. C(2): The PSED review – key events April 2011: Red Tape Challenge launched (when PSED came into force). September 2011: When specific equality duties were approved by Parliament, the GEO announces that they will be reviewed in 2 years. May 2012: Government announces that the PSED and the specific equality duties will be reviewed – bringing forward the PSED review by 3 years to 2012 from 2015 (the PSED had been in force for 1 year). November – December 2012: Exchanges re the review: letter of concern re review from Mrs Lawrence and Dr Richard Stone (27 th November 2012); response to letter of concern from PM and DPM (19/12/12); letter from Carwyn Jones, Welsh First Minister (19/12/12); December 2012: Terms of reference for the review announced. March – April 2013: Research and call for evidence GEO commissioned or conducted research 2012 and 2013; call for evidence/submissions early March 2013 (call closed 19/4/13). 12

13. C(3): About the PSED review PSED review process: Jan – May 2013: roundtables; meetings; site visits and case studies; telephone interviews; call for written evidence; limited discussions with parliamentarians; analysis by GEO and Independent Steering Committee. The review report report to ministers – July 2013; publication - Independent Steering Group report published together with the Government’s response (Ministerial Statement) on 6 th September 2013; publicationMinisterial Statement Government accepts the report’s recommendations (6/9/13). 13

14. D(1): Health and Social Care Act 2012 – reducing inequalities Duty as to reducing inequalities: ‘In exercising functions in relation to the health service, the Secretary of State must have regard to the need to reduce inequalities between the people of England with respect to the benefits that they can obtain from the health service.’ HSC Act 2012, section 4 The Secretary of State, the NHS Commissioning Board and CCGs must include in their annual reports an assessment of how effectively they have discharged their duties as to reducing inequalities. The NHS Commissioning Board ‘must, in the exercise of its functions, have regard to the need to’: ‘reduce inequalities with respect to their ability to access health services; and ‘reduce inequalities between patients with respect to the outcomes achieved for them by the provision of health services’ (HSC Act 2012, section 23, 13G). Also see section 23, 13 N on integration with the provision of health and social care related services. 14

15. D(2): Health and Social Care Act 2012 ‘Each clinical commissioning group must, in the exercise of its functions, have regard to the need to— (a) reduce inequalities between patients with respect to their ability to access health services, and (b) reduce inequalities between patients with respect to the outcomes achieved for them by the provision of health services.’ HSC Act 2012, section 26 (14T) ‘Monitor must exercise its functions with a view to enabling health care services provided for the purposes of the NHS to be provided in an integrated way where it considers that this would—... B) reduce inequalities between persons with respect to their ability to access those services, or (c) reduce inequalities between persons with respect to the outcomes achieved for them by the provision of those services.’ HSC Act 2012, section 62 (4). 15

16. D (3): Health and Social Care Act 2012 In this section of the Act, ‘relevant inequalities means inequalities between the persons for whose benefit relevant services are at any time provided with respect to— (a) their ability to access the services, or (b) the outcomes achieved for them by their provision.’ HSC Act 2012, section 27 (8) ‘Health inequalities ‘means the inequalities between persons with respect to the outcomes achieved for them by the provision of services that are provided as part of the health service.’ HSC Act 2012, section 175 (9) ‘As the NHS outcomes framework develops, and information on outcomes becomes more available by the protected characteristics of the Equality Act 2010 (for example by neighbourhood or by deprivation profile), it is expected that this will be increasingly helpful in guiding the NHS Commissioning Board’s actions. ‘Expl. Notes to the HSC Bill, Sept. 2011 16