Is it possible to remedy a breach of the public sector equality duty (PSED)? Katherine Apps analyses an important Court of Appeal ruling.
In Metropolitan Housing Trust Ltd v TM  EWCA Civ 1890 the Court of Appeal has grappled with the question as to whether a public authority can “remedy” a breach of section 149 of the Equality Act 2010 if “due regard” to the prescribed equality considerations was not had before the relevant decision was made.
This question is often of significance in PSED judicial review claims. The duty in section 149 EA 2010 is essentially a procedural requirement; it does not mandate that a decision maker come to a particular substantive conclusion.
Prior to Metropolitan Housing Trust the position was as follows:
1. Late substantive compliance could not expunge an earlier breach, but might mean that the claim has become academic (as appears to have been accepted in R(Rowley) v Minister for the Cabinet Office  EWHC 210 (Admin).
2. Late substantive compliance might have relevance to section 31(2A) and (3C) of the Senior Courts Act 1981 and whether the result was highly likely not to have been significantly different (HLNSD).
a. If HLNSD is satisfied at the permission stage (31(3C) permission should be refused (unless the case is of exceptional public interest) (for a recent example see R(Police Superintendents Association v HM Treasury  EWHC 3389 (Admin) at -).
b. If HLNSD is satisfied at the substantive stage, relief should be refused and no damages claim can be made.
3. There was High Court authority in the context of possession cases that a later compliance could remedy the breach of section 149 itself (Barnsley Metropolitan Borough Council v Norton  EWCA Civ 384, Taylor v Slough BC  EWHC 3520 (Ch).
4. If the PSED has been breached, the breach will have substantive consequences for the challenged decision. If the challenged decision is indirectly discriminatory (or in the small category of directly discriminatory decisions capable of objective justification) a defendant cannot satisfy the objective justification test if they have not complied with the PSED (R(Coll) v Ministry of Justice  UKSC 40).
The Court of Appeal’s decision
Metropolitan Housing Trust was another possession claim. There had been a failure to comply with the PSED before the possession application was made. However, the Judge found that the PSED had been complied with by the Claimant’s witness giving evidence in the witness box. Therefore the claim failed.
The Court of Appeal allowed the appeal. The Court of Appeal held that the witness had not, during the course of his evidence, shown that he had sufficient “due regard” to the statutory mandatory matters as required under section 149 EA 2010. The duty required due regard to be had “in substance with rigour and an open mind” and this was not apparent in his ambiguous evidence. That evidence post dated the decision.
All judges declined to decide that ex post facto witness evidence alone, could never be decisive by itself.
This meant that the discussion of whether the PSED could ever be “remedied” is obiter. The discussion does, however, add clarity to an area in which there was conflicting High Court authority.
1. No remedy to breach possible where a discrete decision is challenged: The Court of Appeal confirmed the orthodoxy, that where the decision challenged was a discrete decision, rather than a continuing state of affairs, the PSED must be complied with before the decision is made. Where the challenge relates to such a decision, there can be no question of “remedying” the breach of the PSED which has already happened (although s 31(2A) might apply, and the challenge itself might be academic if a declaration of breach is not sought).
2. What is a discrete decision? The categories of “discrete” decision are potentially wide. They include where there has been a decision to close a publicly funded source of funding and that decision remained capable of reversal and had not come into effect, as in the case of Bracking v Secretary of State for Work & Pensions  EWCA 1345). It was not open to the Secretary of State to close the independent living fund until the original decision had been quashed, and the entire decision making process restarted and remade (by which time the responsible Minister had changed). The later challenge to the second challenge failed as due regard had been had by the decision maker before he made the (new) decision (Aspinall v Secretary of State for Work and Pensions  EWHC 4134 (Admin)).
3. Ongoing proceedings: The position is different “where proceedings had been brought and were ongoing” (Nugee LJ at ). Nugee LJ, with whom Snowden LJ agreed, did not confine this category to possession proceedings. What other proceedings could this apply to?
a. Judicial functions themselves are exempt from the scope of the EA 2010 entirely under Schedule 3 paragraph 3 EA 2010.
b. Conduct of litigants themselves by bringing the claim is usually considered to be exempted from the EA 2010 scope by judicial proceedings immunity. In possession proceedings, it is seeking possession of the property itself which is the relevant decision challenged.
c. Professional regulators can be subject to judicial review, but claims relating to their substantive equality compliance must be brought in the ET, so the only claim in the Administrative Court under the EA 2010 could relate to the PSED. While it would appear conceivable, following the judgment of Nugee LJ, that challenges to the bringing of regulatory action could be “ongoing proceedings” it is to be expected that in many, the Administrative Court would decline jurisdiction on the basis of there being an alternative substantive remedy.
d. It is unclear how the Court of Appeal would characterize the breach that occurred in Coll. That related to the distribution of women’s approved premises throughout the UK. This would, on first glance, appear to be a paradigm continuing breach, which could, under Nugee LJ’s approach, be capable of remedy. However, this was not the approach taken by the Supreme Court in that case.
4. Loss based analysis: both Nugee LJ and Green LJ referred to the relevance of when loss was suffered by the Claimant, but in different senses. Snowden LJ agreed with both, but the analysis was different;
a. Nugee LJ referred to a private law contractual damages claim as an example at . If a contractor fails to build a wall within 6 months, but has built it before proceedings are issued, the late compliance does not remedy the breach but might mean that it has no consequences if there is no loss. A “remedied” breach of the PSED will not remove the previous breach, but it might have “no continuing consequences". This conclusion is difficult to square with the consequences noted in Coll, as to the impact on the unavailability of the objective justification defence.
b. Green LJ focused on the public law context and the nature of a s 149 challenge. A “belated act of compliance” cannot “expunge[s] any harmful effects of the earlier failure” (Green LJ at ). In the present case, the claimant had been left without alternative suitable accommodation available to him. A later compliance with the PSED could not expunge the “harmful effects of the earlier failure”. This analysis is far more conventional as a matter of public law and would leave the analysis in Coll undisturbed.
Although much of the Court of Appeal’s judgment is obiter, the Court of Appeal’s approach suggests that public authority’s attempts to carve out possession claims from the general principle that compliance with the PSED must, as a matter of substance, be had before, and not after, a decision is made. Later compliance can remove the continuing effects of a breach, but will not always do so, especially if loss has already been suffered. Late compliance cannot “expunge” an earlier breach.
The full consequences of this for the impact on the availability of objective justification under the Coll principle has not yet been fully considered. While Nugee LJ considered that the precise legal mechanics for consideration of late compliance did not matter, this is difficult to square with Coll. Green LJ’s analysis provides a sounder principled basis for such arguments to be considered in future cases.