2011 03 Equality

Friday 1 April 2011

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R(on the application of Elaine McDonald) v Royal Borough of Kensington and Chelsea[2010] EWCA Civ 1109 (Rix, Wilson LJJ, Sir David Keene): The local authority breached a duty owed to the Claimant by failing to meet her assessed needs. However once her needs had been re-assessed, the provision made to meet her needs involved no further breach of duty. Prior to re-assessment the Claimant required ‘assistance at night to use the commode’ and thus she required a night-time carer. Following re-assessment, she had a need to ‘urinate safely at night’ that could be met by the less costly use of incontinence pads. A claim for damages for a violation of Article 8 of the Human Rights Convention failed as the conditions for a violation were not established. Further, by reference to ss 21B(1) (discrimination by public authorities), 21D(2) (meaning of discrimination) and s 21E(2) (duties to make adjustments) of the Disability Discrimination Act 1995, the Court was sceptical as to whether any relevant policy or practice existed to found a claim for disability discrimination. There did not appear to be a policy or practice adopted whereby disabled clients were subjected to impossible or unreasonably difficult or adverse circumstances, and in any event the policy or practice ( assessing needs, inc by by reference to resources) was justified as a proportionate means of achieving a legitimate aim – the equitable allocation of limited care resources. Click here for the transcript.

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Michael Pieretti v London Borough of Enfield [2010] EWCA Civ 1104,

(Wilson, Mummery, Longmore LJJ):

The application of the public sector equality duty in respect of disabled persons to the powers and duties of local authorities in respect of homeless persons – a local authority’s obligation to make further inquiries where a feature of the evidence raises a real possibility that the applicant is disabled where that is relevant to the performance of its functions

This appeal concerned the extraordinary attempt by the London Borough of Enfield to argue that the public sector equality duty in respect of disabled persons under s 49A of the Disability Discrimination Act 1995 did not apply or applied only to a limited extent to the discharge of duties and the exercise of powers by local housing authorities under homelessness provisions in Part VII of the Housing Act 1996 (‘the 1996 Act’). The local authority found (in a decision of 2 June 2009) that the Appellant had become homeless intentionally under s 191 of the 1996 Act so that only a limited duty (under s 190(2)) rather than a full duty (under s 193) was owed to him. Enfield made three ‘bold’ submissions all of which were rejected as ‘clearly wrong’. Enfield argued that the duty under s 49A(1) of the Disability Discrimination Act 1995 did not apply to Enfield’s determination as to whether or not the homelessness of the Appellant and his wife was intentional. First, Enfield submitted that s 49(1) only applied to the general formulation of policy and not to the determination of individual cases. The Court of Appeal were robust in rejecting this. Second, Enfield submitted that Part VII of the 1996 Act addresses the rights and needs of the disabled so comprehensively that there is no room for the introduction into the scheme for making provision for the homeless of further protection for the disabled such as that found in s 49A(1) of the Disability Discrimination Act 1995. This extraordinary submission was also rejected by the Court of Appeal. Third, Enfield submitted that in its determinations under Part VII of the 1996 Act, a local authority does not carry out "functions" within the meaning of s 49A(1) of the Disability Discrimination Act 1995 until, if at all, it reaches the stage of discharging a duty (or exercising a power) to secure that accommodation is available for a person's occupation. This submission was also rejected. The Court of Appeal concluded that the duty in s 49A(1) of the Disability Discrimination Act 1995 applies to local authorities in carrying out all of their functions under Part VII of the 1996 Act. Further, the Court modified the dictum of Brook LJ in in Cramp v Hastings BC [2005] EWCA Civ 1005. See Practice Note Michael Pieretti v London Borough of Enfield: Disability and Homelessness. Click here for transcript.

R(on the application of British Gurkha Welfare Society and Others) v Ministry of Defence[2010] EWCA Civ 1098 (Maurice Kay, Longmore, Black LJJ): The appeal concerned a challenge to the modified pension arrangements for retired soldiers from the Brigade of Gurkhas. The claimant’s appeal was dismissed on the basis that the modified arrangements did not discriminate on grounds of age or nationality contrary to article 14 ECHR taken together with Protocol 1, article 1. The claimant sought unsuccessfully to overcome previous judgments in R(on the application of Purja and others) v Ministry of Defence [2003] EWCA Civ 1345 and R(on the application of Gurung) v Ministry of Defence [2008] EWHC 1496 (Admin). Click here for transcript

Government scraps public sector duty regarding socio-economic equalities

On 17 November 2010 the Home Secretary and Minister for Women and Equality Theresa May announced that the socio-economic duty, which was created as part of the 2010 Equality Act, will be scrapped. She said:

“Equality has become a dirty word because it has come to be associated with the worst aspects of pointless political correctness and social engineering.”

Section 1(1),(2) of the Equality Act 2010 provides:

Public sector duty regarding socio-economic inequalities

(1)An authority to which this section applies must, when making decisions of a strategic nature about how to exercise its functions, have due regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage.

(2)In deciding how to fulfil a duty to which it is subject under subsection (1), an authority must take into account any guidance issued by a Minister of the Crown.

For the full story click here.

Government confirms commitment to introduce the public sector equality duty under the Equality Act 2010

On 19 November 2010 the Government confirmed that it intended to introduce the public sector equality duty found in Part 11, Chapter 1 of the Equality Act 2010. The new equality duty is expected to come into force in April 2011. Click here for details.

Current equality duties apply to race, sex and disability. When introduced into force the provisions in the Equality Act 2010 will extend to the protected characteristics of age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation

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