What Is Equality Analysis and Due Regard?

Equality Analysis & Due Regard Guidance

Introduction

This guidance is aimed at commissioning managers and decision makers to help you ensure the CCG shows due regard to its equalities responsibilities when developing health services for local people in NAME. Paying due regard will help to prevent any group or individual challenging CCG decisions in the courts and ultimately protect and improve the reputation of the CCG and the NHS in NAME.

What is equality analysis and due regard?

Equality analysis and due regard is a process used to ensure that when the CCG takes a decision, it knows who is affected and has taken reasonable mitigating action to ensure its impact is as equitable as possible.

The governance process around this in NAME CCG is likely to be:

·  commissioning managers and other relevant staff receive training in equality analysis

·  responsible commissioner completes the Equality Analysis Form

·  form is quality assured by the responsible colleague

·  completed form is approved by [name] committee

Primarily and most importantly the CCG, in line with its strategic priorities and the NHS Constitution, works to improve outcomes for patients in NAME. Beyond that, as a public authority, the CCG must both comply and demonstrate its compliance, with a range of legislation.

Two key pieces of legislation governing the CCG’s equalities, inclusion and human rights responsibilities are:

·  Equality Act 2010 – which sets out the Public Sector Equality Duty

·  Human Rights Act 1998

These require the CCG to have due regard to the needs of those protected groups/characteristics, covered by the Equality Act.

The nine protected characteristics are:

·  age

·  disability

·  sex

·  race

·  religion or belief

·  sexual orientation

·  gender reassignment

·  marriage and civil partnership

·  pregnancy and maternity

How do we do it?

To meet these requirements, the CCG must ensure that, before making any, decision it has considered the following:

·  Who will be affected by the decision?

o  Current, prospective and/or future service users

o  Families, carers and dependants

o  Staff

·  Is this information available or will more research be needed to gain a complete picture?

·  What will this impact be, will it be positive or negative and are different groups affected differently?

o  Is action required to ensure equality of outcome?

·  If there is a negative impact, can this be mitigated?

o  If so what action is needed and is this proportionate?

o  If not, why is this not “reasonable”?

Historically, many NHS and public organisations have used an Equality Impact Assessment form to facilitate this process. Unfortunately, these have often been used to screen a decision rather than assess its impact. Furthermore, the fixed questions within such a form can limit the scope of the analysis and due regard resulting in an incomplete picture. There are few decisions where the impact is entirely equal and there is no potential for a negative impact.

It is important to remember that this is about far more than the need to assess policies. A range of decisions can have an impact and if this is not identified in advance an inequality may be produced or sustained, placing the CCG at risk of legal challenge.

Once the CCG are clear about the impact and any mitigation required, the decision can proceed. However, the due regard process does not stop there. Equality analysis and due regard is not a one off event but a continuous activity should be reviewed during the decision-making process, once the decision has been made and subsequently.

Case law and due regard

There are many cases in which the English courts have considered whether a public body has complied with its legislative duties. The principles set out in those cases will be relevant to the duty under s.149 of the Equality Act 2010.

In R. (Brown) v. Secretary of State for Work and Pensions,[i] the court considered what a relevant body has to do to fulfil its obligation to have due regard to the needs set out in the general equality duty. The ‘Brown principles’ it set out have been accepted by courts in subsequent cases.

·  Decision-makers must be made aware of their duty to have 'due regard'.

·  Due regard must be fulfilled before (for example, while a policy change is being considered), as well as at the time a decision is taken.

·  A body subject to the duty cannot justify a decision after it has been taken. Having general regard to the issue of equality is not enough to comply with the duty.

·  The duty must be exercised in substance, with rigour and with an open mind in such a way that it influences the final decision.

·  The duty has to be integrated into the everyday business activities of the organisation. It is not a box-ticking exercise.

·  The duty cannot be delegated to another organisation.

·  It is good practice for those exercising public functions to keep an accurate record showing that they have considered the general equality duty. If records are not kept it may make it more difficult for a public authority to persuade a court that it has fulfilled its equality duties.

Who is responsible? What do they have to do?

The individual/s proposing or developing a new service, service redesign or any decision within NAME CCG plays a key role in safeguarding the CCG with regard to its equalities responsibilities.

To this end, you should ensure all associated functions, policies and changes to commissioned services are subject to robust and proportionate equality analysis. This should demonstrate:

·  the potential impacts have been fully considered in drawing up or redesigning the policy/service

·  those involved have access to sufficient data throughout the process to fully understand who is or will be using a service and what affect these changes will have

·  the amount of information is relative to the significance and impact of the decision

·  consideration has been given to, if and how the change in policy/service could reduce inequalities in healthcare for people with protected characteristics.

There is an expectation that the CCG will consult relevant third sector organisations as part of its decision-making. Failure to do so leaves a gap in the analysis and could result in a challenge your decision by a relevant organisation that has not been consulted, or other groups and individuals.

Part of your governance process will ensure that decision makers (your Governing Body or relevant committees) have the opportunity to check and challenge that the above actions have happened and that your equality analysis is robust.

It is not always possible to reduce or remove negative impact on protected groups. However, you are expected to explore all your options for mitigating the impact. Likewise, clinical requirements of a service or policy may affect some patients’ eligibility for the services, in which case, these requirements need to be made clear within the analysis and specifically referenced.

The Arden & GEM CSU EIHR team can help you navigate this process and act as a critical friend. However, we cannot do it for you. As highlighted in the Brown principles, this is not a duty you can delegate. Furthermore, you are the experts when it comes to your local services and population.

Without an adequate equality analysis, the CCG is open to possible legal challenge from individuals and organisations.

The key points to remember are that equality analysis must:

•  occur before taking a decision

•  be undertaken with an ‘open mind’

•  continue throughout a project

•  focus on the effects of a decision and actions to address them

•  be thorough and robust.

Equality Analysis is NOT a tick box exercise

How should equality analysis be undertaken?

Depending on the service/policy you will need both qualitative and quantitative evidence.

Qualitative evidence

This includes:

•  conversations with groups or people with specific knowledge

•  feedback from organisations representing interest groups

•  staff perspectives

•  consultation, engagement and involvement outcomes and reports

•  research, national policy, media reports

•  complaints.

Using this type of information you can explore the current view of patients, staff working on the front line and local communities. It is vital that the opinions and concerns of all the protected groups are considered (see protected characteristics on p2). Where it has proved difficult to engage directly with seldom heard groups, relevant third sector organisations give an opportunity to get the views of those they support/represent.

Quantitative evidence

Quantitative data is also important, particularly where changes are planned to an existing service. Examples include:

·  workforce data

·  service activity data (including profiles of patients currently using a service)

·  your local Joint Strategic Needs Assessment.

The above data should then be compared with relevant population data that is, those who will be served. The 2011 Census provides a baseline across every county in England for this purpose. However, your local authority and Public Health service may have additional data that you can use.

From this evidence you should be able to judge who will be affected, how significant any impact will be and what changes are needed to the proposal/decision to ensure equality of outcome.

Key questions you must answer

·  What outcome(s) will be achieved by conducting this equality analysis?

·  What inequalities in access, experience or outcomes have been identified in relation to each of the protected characteristics?

·  What evidence has been used to come to these conclusions?

·  What information is available to assess performance in relation to each protected characteristic?

·  Do any gaps in information need to be filled? How will they be filled? If not, why not?

·  Which of the strategic equality objectives will this equality analysis contribute to?

·  What are the potential risks/costs (financial or otherwise) of not implementing planned service changes?

·  What are the potential savings/benefits of implementing the planned changes?

·  How will you communicate the details of this analysis to the decision makers for this service, function or policy?

How to use the evidence you have gathered and your equality analysis

Once you have completed your equality analysis you have four choices with regard to your service change or policy decision.

•  Go ahead as planned: there are no adverse findings.

•  Make adjustments: specific impacts have been identified and can be addressed.

•  Continue regardless: the benefits outweigh the risks and continuing would not constitute unlawful discrimination.

•  Stop: the policy would leave the organisation open to legal challenge and should not go ahead.

What to do if you cannot fully mitigate the negative impact?

The CCG’s aim should always be to deliver an equitable outcome but there may be occasions when some negative impact on one or more groups cannot be mitigated. Only when you have explored all options for mitigation and can show they are neither proportionate nor reasonable should you take a decision that might negatively impact on the healthcare available to a particular group(s) of people.

What does this mean in practice?

An example where this might be permissible is where a CCG needs to rationalise walk-in centre provision reducing it from two sites to one. This will inevitably impact on patients, particularly those for whom travel is more difficult and who rely on public transport.

The key action required involves changes to bus routes which are not under the CCG’s control. The CCG writes to the local authority and the key bus operators to make them aware of the change in advance and to request they consider revising bus routes to enable patients to reach the walk-in centre. However, the local authority and/or bus operators say this is not possible, at least initially.

Ideally there would be funding available for a specific bus service/s but the financial envelope does not permit it. In this example if the CCG is subject to a legal challenge it can show that it has made every possible effort to mitigate the issue and has undertaken the required level of equality analysis and due regard.

Demonstrating your evidence to decision makers

Where relevant committee [name] cover sheets include the following table, it can be used as evidence that due regard has been taken in the decision.

Equality Analysis and Due Regard completed / ü / û / Not applicable
Outcome of Equality Analysis and Due Regard / [This section must always be completed or the following statement completed]
It is judged that it is not proportionate on the basis that…. This completes the due regard required.

Members of the [name] committee are the final check. Equality analysis and due regard should be clearly evident in the documents put forward for approval, by approving a decision, you are going on record that you are satisfied that this aspect has been met.

Equality Inclusion and Human Rights

NHS Arden and Greater East Midlands Commissioning Support Unit

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[i] R. (Brown) v. Secretary of State for Work and Pensions [2008] EWHC

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