THE EQUALITY ACT 2010
THE IMPLICATIONS OF THE ACT FOR THE RECONFIGURATION OF PRE-SCHOOL FACILITIES AND SERVICES BY METROPOLITAN DISTRICT COUNCILS
The Equality Act 2010 sets out
the duties of local authorities to have regard to the elimination of discrimination,
a list of the “protected characteristics” to which those duties of elimination apply (including age and disability),
and a separate duty to advance equality.
The Act does not define “age” as “old age”.
1 The “duty to have regard” imposed by the Act on Metropolitan District Councils
Section 149 of the Act imposes a duty on ‘public authorities’ and other bodies when exercising public functions to have due regard to the need to:
a eliminate discrimination, harassment, victimisation and any other conduct
that is prohibited by or under the Act
b advance equality of opportunity between persons who share a relevant
protected characteristic and persons who do not share it
c foster good relations between who share a relevant protected
characteristic and persons who do not share it.
Schedule 19 of The Act lists the bodies that are “public bodies” for the purposes of the Act. Local authorities including District Councils are included. Metropolitan District Councils therefore have these “duties to have regard” under the Equalities Act 2010.
2 Matters that are covered by the Equalities Act under the “duty to have regard”
The duty must be complied with when a body subject to it is ‘exercising a function’. The courts have said that there is no scope for depriving ‘function’ of much of its ordinary meaning.
In relation to bodies subject to the duty this means activities that form part of the purpose of their organisation or are natural to it.
For example, for a school this would include any activities that relate to their purpose to educate children or are natural to it, including providing a safe environment for children to learn in.
The Court of Appeal has made it clear that the general equality duty not only applies to general formulation of policy but also applies to decisions made in applying policy in individual cases.
The courts have also said it is clear that the general equality duty is not something which has to be considered only when a body is exercising a statutory function under specific legislation. Instead it applies to the carrying out of any function of a public authority.
For example, in the case of a local authority, a function may be the discharge of a statutory duty, the exercise of a discretion vested in it or the carrying out of a common law obligation.
This means that the general equality duty will apply to decisions made by the employees or agents of bodies subject to the duty in their day to day activities.
Metropolitan District Councils are local authorities bound by these requirements.
3 How the duty applies to “protected characteristics”
The Act introduces a new public sector equality duty which replaces the previous three equality duties for race, disability and gender. The new duty applies to the ‘relevant protected characteristics’ –
pregnancy and maternity,
religion and belief,
sexual orientation and,
to a more limited extent, to the protected characteristic of marriage and civil partnership
The first aim of the general equality duty is to have due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited by the Act because of any of these protected characteristics. Metropolitan District Councils are bound by these requirements
The second and third aims of the duty are advancing equality of opportunity and fostering good relations respectively. These apply in relation to persons who share a ‘relevant protected characteristic’.
Metropolitan District Councils are bound by these requirements in relation to persons who share a “protected characteristic”, and all the pre-school children share such “protected characteristics”: age. Metropolitan District Councils are also bound by these requirements to advance equality of opportunity among them regardless of age.
4 The implications of the Equality Act for the policies and the operation of any proposed reconfiguration of pre-school services and facilities
The “protected characteristics” include age and disability. The Act does not set a minimum age below which protection is not applicable; not does it set specific tests for disability.
Metropolitan District Councils must therefore have due regard to the elimination of discrimination by age and disability when they are formulating the policies and implementing the operation of any proposed reconfiguration of pre-school services and facilities.
Metropolitan District Councils have a duty to eliminate discrimination, and a duty to advance equality of opportunity.
If any Metropolitan District Council uses Indices of Multiple Deprivation (IMD) as a criterion for the removal of services and facilities, some children of the same age (and some children with the same disabilities) will be deprived of services and facilities that will continue to be provided to children of the same age and the same disability elsewhere simply because they live in different places.
So if any Metropolitan District Council uses IMD as a criterion for the removal of services and facilities it will be actively discriminating against some children (and their parents and carers), and it will not be advancing equality of opportunity for those children (and their parents and carers) either.
It is extremely difficult to see how closing children’s centres would not contravene the duties for Metropolitan District Councils as set out by the Equalities Act 2010 as follows:
5.1 to have regard to the elimination of discrimination on the grounds of age and disability that are imposed on it by the Equalities Act 2010.
5.2 to advance equality of opportunity regardless of age and ability (in terms)
because closing children’s centres would appear to a breach of both these duties.