Agenda item

Report of the Director of Legal and Governance Services

The Committee received a report of the Director of Legal and Governance Services which provided a summary of recent case law which explained the legislation in relation to the public sector and equality duty.  An officer outlined the content of her report and advised that there had recently been a number of cases on equalities issues and that the public sector equality duty had come into effect on 5 April 2011.

The officer reported that the Council must have due regard to the public sector equality duty and that it should not merely be a tick box exercise.  It was necessary for Members to apply their minds to the equality duty as it was they, not officers, who must have due regard.  Referring to the Rahman case, she emphasised that report writers must have access to all relevant information and must consider the degree of disadvantage that might be caused.  The officer advised that the Courts would not interfere with the decision makers weighing up of countervailing factors unless they viewed a decision as being completely irrational.

In considering the report and officer presentation, Members made a number of comments and asked questions which were duly responded to.  These included:

·                    Referring to the concept of non-delegable duty, a Member stated that he had expressed concern at the lack of Equality Impact Assessment (EIA) for Section 256 money.  The officer advised that the decision maker must understand the impact and have due regard to the equalities duty and that this had been done in relation to the budget.

·                    In response to a Member’s question, the officer advised that the equality duty applied to all Council functions and reiterated that Members must have due regard.

·                    A report submitted to Planning Committee on Lee Valley Park had not referred to an EIA and a Member questioned whether equalities were being properly considered in planning decisions.  He added that Haringey Council had had a planning decision quashed having not given consideration to the impact on the community.  The officer advised that it was a question of weighing up the factors in the case.  Disability issues had been a material consideration for a long time but that she would like to give that issue some further thought.  EIAs were considered during the preparation of the Local Development Framework.

·                    Responding to a question on North Harrow Assembly Hall and the associated community relations issue, the officer advised that if equality was not mentioned in a report there would have to be other evidence that it was considered by the decision maker.

·                    Referring to paragraph 8.3.2 in the appendix to the report, a Member questioned whether Members were embracing this issue and having due regard.  The officer advised that there was no legislation stating that it was a statutory duty to do an EIA but many authorities were.  The decision maker should also take into account other information such as issues being raised in the press.  The Council had a Corporate Equalities Group and leads within each directorate which checked EIAs and had representatives from the community on it. The legal team checked all reports to Council and Cabinet to ensure that EIAs had been completed in relation to decisions to be made.

·                    A Member questioned what mechanisms were in place to ensure that Executive Members were making the correct decisions.  The officer advised that it would be a test of the decision and it was the Member’s responsibility.

·                    A Member referred to a report on Birmingham Council’s proposal to introduce budget cuts and stated that it was important to address adequate assessment in project documents.  He stated that this was an important document and emphasised the need for stronger recommendations and guidance on how to put business cases together.  The officer advised that she was working with the Council’s Equalities officer to ensure that all the guidance was addressed.

·                    In response to a Member’s question on the Rahman case, the officer advised that the judge had said that officers had been too optimistic about the impact on the community but from the press coverage it was clear that there would be a negative impact on the community by removing funding from the law centre.  She emphasised the need for consultation as it was not always possible for officers to understand the impact without speaking to users of a service.  The judge in the Birmingham critical care case had questioned whether it would have been possible to remove funding from elsewhere with a less negative impact.  The officer agreed with the Member’s view that the EIA should be done early in the process and, if necessary, reviewed.

·                    A Member questioned whether all Cabinet Members had completed EIA training and was advised by another Member 7 out of 10 had.  The officer undertook to find out take up of training by other Members.

·                    Following on from the previous comments, a Member stated that the Birmingham case made it clear that generalised training was not sufficient.  It was clear from the cases that papers put before a judge had to show that equalities had been considered and the Member stated that there was a general problem with over optimistic reports.  As a result, reports may be challengeable. In terms of specific training, the officer responded that briefings or training before particular decisions were taken were important but that, in terms of the culture of overly positive reports, she did not agree.  At the Member’s request, she undertook to review the reports on the 2 previous Cabinet agendas in order to identify examples of good EIAs.

The Chair thanked the officer for her attendance and responses.

RESOLVED:  That the report and the key messages for the Council be noted.