CARE ACT Discrimination/ Public Sector Equality Duty. Declan O Callaghan LANDMARK CHAMBERS

Transcription

1 CARE ACT 2014 Discrimination/ Public Sector Equality Duty Declan O Callaghan LANDMARK CHAMBERS 10 March 2015

2 What is the Public Sector Equality Duty? Equality Act 2010 Mainstreaming disability Encouraging local authorities to engage with the diverse communities affected by public body activities so as to ensure that policies and services are appropriate and accessible to all.

3 Nine protected characteristics: Age; Disability; Gender Reassignment; Marriage and Civil Partnership; Pregnancy and Maternity; Race; Religion or Belief; Sex and Sexual Orientation.

4 Local authorities must: Carry out an assessment of anyone who appears to require care and support, regardless of their likely eligibility for statefunded care; Focus the assessment on the person s needs and how they impact on their wellbeing, and the outcomes they want to achieve; Involve the person in the assessment and, where appropriate, their carer or someone else they nominate

5 Provide access to an independent advocate to support the person s involvement in the assessment if required; Consider other things besides care services that can contribute to the desired outcomes (e.g. preventive services, community support; Use the new national minimum threshold to judge eligibility for publicly funded care and support.

6 Eligibility Regulations: The Care and Support (Eligibility Criteria) Regulations 2014 Guidance: Eligibility determination for the Care Act 2014 (Version 1 published: January 2015).

7 Assessments to be: person-centred; identifying the needs and outcomes that a person needing care or support or a carer wishes to achieve.

8 An eligibility determination must be made after the needs assessment. Key consideration elements: Use the knowledge and information gathered during the assessment; Apply the national eligibility criteria (The Care and Support (Eligibility Criteria) Regulations 2014); Consider principles of risk in relation to wellbeing; Enable effective decision-making; Be transparent and collaborative; Ensure that decisions are evidenced appropriately.

9 Application of PSED The Public Sector Equality Duty applies when a public body exercises any of its functions that may impact upon those with protected characteristics. Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 at [26]. (1) Equality duties - an integral and important part of the mechanisms for ensuring the fulfillment of the aims of antidiscrimination legislation; (2) Record steps taken by the decision maker in seeking to meet the statutory requirements; (3) Duty is on decision-maker: what they personally took into account and what they personally knew.

10 (4) Decision-maker must assess the risk and extent of any adverse impact and the ways in which such a risk may be eliminated before decision and not merely as a rearguard action following a concluded decision; (5) The duty to have due regard to the relevant matters must be fulfilled before and at the time when a particular policy is being considered and is a non-delegable and continuing one; (6) It is for the decision-maker to decide how much weight should be given to the various factors informing the decision. (7) Public authorities must be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it.

11 Nature of consideration Decision-maker must: Ask themselves the right questions; Must proceed on the basis of the correct facts; Be clear precisely what the equality implications are when they are put in the balance; Give due consideration to equality side by side with all the other pressing circumstances relevant to the decision

12 Due Regard The duty to have due regard to the need to advance quality or opportunity is a duty to balance the impact against the countervailing factors and in doing so to address the mitigating steps available. This includes the need to: Remove or minimise disadvantages suffered by persons who share a 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; and Encourage persons who share a protected characteristic to participate in public life or any other activity in which participants by such persons is disproportionately low.

13 Individual decisions By their nature, individual decisions will be fact-sensitive but the correct approach to the duty is to be undertaken. Written record; Decision includes a consideration of the actions that would help to avoid or mitigate any impacts on particular protected groups. Make a decision based on evidence. Make the decision-making process more transparent. Comply with the law.