GOVERNANCE AND SCRUTINY A Guide for Boards in respect of EQUALITY IMPACT ASSESSMENT
CONTENTS EIA: What do I Need to Know?...2 What should I look out for?...4 The 5 questions...4 Understanding the 5 questions....5 Background....8 Governance and Scrutiny....9 What is Equality Impact Assessment?...10 The Public Sector Equality Duty....13 Proportionality and Relevance...14 Advancing Equality....15 Positive Action...16 Collaborative working where does the duty lie?...17 Appendix A....19 Appendix B...21 Appendix C....23 Useful websites....25 tel: 01443 233450 web: www.equalityhumanrights.wales.nhs.uk 1
EIA WHAT DO I NEED TO KNOW? What is Equality Impact Assessment? When organisations are: developing proposals; carrying out service reviews; planning decisions; making policy decisions or reviewing existing policies they need to carry out what is called an Equality Impact Assessment (EIA). An EIA enables organisations to assess the potential effect of proposals on patients and the workforce. Why do I need to know about it? If you are a board member, you will, on occasions, be expected to review and sign off completed EIAs - it is vital, therefore, that you understand what you need to look for to ensure that your organisation is complying with the legal duty and doing everything it can to make sure groups of people are not discriminated against and that equality is advanced in your organisation. This is a legal duty under the Equality Act 2010(1) and the Public Sector Equality Duty in Wales (PSED)(2). Organisations currently implementing Welsh Language Schemes under the Welsh Language Act 1993(3) are required to assess the linguistic consequences of new policies and initiatives. To note: Welsh Language Schemes will be replaced by Welsh Language Standards in due course which will include standards for Policy Making and require organisations to assess the effects of policy decisions on (a) opportunities for persons to use the Welsh language and (b) treating the Welsh language no less favourably than the English language. What is my role? As a board member you will need to seek assurance that the EIA has been undertaken with rigour and has informed the development of the proposal. Your role will be to make sure all the right questions were asked and the answers listened to and taken into account. The 5 questions contained in this Guide will help you to determine whether a completed EIA is robust enough and / or identify any areas you need explored further. It is your role to challenge and question any gaps and not to sign off or agree to something that you are not comfortable with. What are the implications if an EIA is done poorly or not at all? If this were the case, there would be potential for the decision to be contested by Judicial Review and / or your organisation being served a notice of non-compliance. If you consider the information in front of you is not sufficient and / or you don t fully understand the risks, it could lead to your organisation implementing a new policy or service provision that is not fair or accessible to some parts of the community. If you have to make further changes in the future, this can often be more costly and contradict the principles of Prudent Healthcare. A good EIA, and the engagement that should go with it, will help the organisation get it right first time. 2 3
WHAT SHOULD I LOOK OUT FOR? The 5 questions - when looking at an EIA, ask yourself the following: 1. Is the rationale for the decision you are considering clearly set out? 2. Has the EIA considered all available evidence? 3. Have all those likely to be affected by the proposal been involved and engaged? 4. Have potential positive and negative impacts been identified? 5. Do you think the proposed course of action suggested is justified? UNDERSTANDING THE 5 QUESTIONS These questions and their corresponding explanations provide you with a framework to determine whether an EIA is robust enough when considering proposals. 1. Is the rationale for the decision you are considering clearly set out? A robust EIA will set out the reasons for the introduction or change, how this change can impact on protected groups, as well as whom it is intended to benefit and the intended outcome. 2. Has the EIA considered all available evidence? The completed EIA should have considered the relevant information and research that is available locally and nationally and set out how it has been taken into account. The assessment of impact on equality should be underpinned by up-to-date and reliable information about each of the different protected groups that the proposal is likely to have an impact on. A lack of information is not sufficient reason to conclude that there is no impact. If the EIA you are presented with does not contain the relevant information as set out above, you should challenge it as potentially non-compliant with the duty. 4 5
3. Have all those likely to be affected by the proposal been fully involved and engaged? Involving and engaging anyone who may be affected is crucial to assessing the impact on equality. This is a legal requirement under the Equality Act 2010 and the Public Sector Equality Duty (PSED) in Wales. Proper engagement provides richer insight into how services are currently being provided and how they affect the public. For example, no-one can give you a better insight into how proposed changes will have an impact on disabled people, than disabled people themselves. 4. Have potential positive and negative impacts been identified? It is not enough to simply state that a decision will impact on everyone equally - there should be a more in-depth consideration of available evidence to see if particular protected groups are more likely to be affected than others. Equal treatment does not always produce equal outcomes - sometimes you or your organisation will have to take particular steps for certain groups to address an existing disadvantage or to meet differing needs. 5. Think about the EIA conclusion that is in front of you do you think the course of action suggested is justifiable? The EIA should clearly identify the option(s) chosen, and any potential positive or negative impacts. It is important that any and all reasons are documented throughout the process. When making your decisions, you need to make sure you have all the information you need to hand. Recent case law has shown how organisations can be successfully challenged where this cannot be demonstrated (see Appendix A). You should ensure that any decision includes a consideration of the actions that would help to avoid or mitigate any adverse impacts on particular protected groups. THE EIA SHOULD SET OUT: Who will potentially benefit Who will potentially be hurt Any knowledge gaps How the impact will be monitored post implementation 6 7
BACKGROUND GOVERNANCE AND SCRUTINY This Guide is aimed at Executive Directors and Independent Members of NHS organisations in Wales who need to consider EIAs and be confident of the quality of the decision-making process. Its purpose is to help board members carry out their duties in respect of meeting the PSED contained in the Equality Act 2010, the Human Rights Act 1998(4), the Welsh Language Act 1993 and the Welsh Language (Wales) Measure 2011(5). It also sets out how board members can ensure both compliance with the law and improved outcomes for patients and staff. The Guide provides background to the legislative framework and the principles that underpin EIA. It sets out 5 questions to be used by board members as prompts to seek assurance and clarity on accountability for the decisions they are being asked to make. It is also designed to aid NHS organisations achieve this aim and to demystify common concerns surrounding EIA, such as it being a tick box exercise. Board members will be asked to consider many proposals and to apply effective governance and scrutiny to the decision-making process. They must take into account any impact that decisions may have on groups with a protected characteristic under the Equality Act 2010, and on the Welsh language under the Welsh Language Act 1993 and the Welsh Language (Wales) Measure 2011. Board members need to ensure proper scrutiny has been considered and applied to all decisions and to make sure they have paid due regard to equality and human rights, and the Welsh language. How due regard is defined by the courts is explained in Appendix B. It is the board members role to question the robustness of any EIA and request that further information / investigation is sought or carried out if needed. 8 9
WHAT IS EQUALITY IMPACT ASSESSMENT? The requirement to complete an EIA is covered by a specific legal duty in Wales, which underpins the general PSED. There are 9 protected characteristics under the Equality Act 2010: Age Disability Gender Reassignment Marriage and Civil Partnership - but only in respect of the requirement to have due regard to the need to eliminate discrimination Pregnancy and maternity Race including ethnic or national origin, colour or nationality Religion or belief including lack of belief Sex Sexual orientation. Separate legislation addresses the Welsh language. The Welsh Language Act 1993 established the principle that the Welsh and English language should be treated on a basis of equality. The Welsh Language (Wales) Measure 2011 establishes that the Welsh language should be treated no less favourably than the English language. It also establishes the freedom of persons wishing to use the Welsh language to do so with one another. The Measure makes provision for the introduction of Welsh Language Standards, including Policy Making Standards. Organisations are required to assess what effect a policy decision would have on the opportunities for persons to use the Welsh language, or treating the Welsh language no less favourably than the English language. The Welsh language is not a protected characteristic under the Equality Act 2010, however, for the purposes of this guidance only, the terms protected characteristics and equality duties include the Welsh language. In due course, the Welsh Language Commissioner may publish a Code of Practice relating to the Policy Making Standards. When developing new and reviewing existing services and policies your organisation should, in order to comply with the duty, identify potential or actual barriers that groups might face in accessing your services or in employment. The duties also apply when health organisations procure goods and services or commission third parties to provide services on their behalf. The Equality and Human Rights Commission (EHRC) defines procurement as the contractual process by which a public authority agrees for another to carry out works and/or to provide goods and/or services on its behalf (6). Most importantly, your organisation should identify ways to remove or lessen the impact of those barriers before any decision is implemented. In this way, the disadvantage is averted before it happens. These actions can include a range of positive actions which allows the organisation to treat individuals according to their needs, even when that might mean treating some more favourably than others, in order for them to have a good outcome. This is an important issue for board members to understand in their scrutiny and governance role. Experience shows that many EIAs are screened out without consideration of relevant evidence and with no consideration of the likely impact on different protected groups. Often this is reported to have no impact to boards. This may be underpinned by the assumption of staff that providing the same for everyone is sufficient, however, the duty specifically requires boards to 10 11
THE PUBLIC SECTOR EQUALITY DUTY consider how to deliver things differently for different groups to meet their different needs and particularly those who are most vulnerable. Where policies or service changes are considered to have relevance to protected characteristics they should be subject to an EIA. You also need to consider how the actions of your organisation may affect other public bodies ability to meet their own equality duties. An EIA should provide further evidence, including the engagement and involvement of relevant protected groups, their representative and any other stakeholders interested in your organisations functions. Completed EIAs should contain enough evidence to enable you to feel confident that the equality implications of a decision have been fully considered and any alternative options or proposals have also been identified and considered. The duty requires boards to demonstrate that it promotes equality and makes a real difference for service users or staff. The services you provide need to meet the requirements of anti-discrimination and human rights legislation. This is an opportunity for your organisation to think carefully about the impact of your work on patients, staff and other stakeholders. For EIAs to be undertaken effectively, all staff have to be clear about what they are doing and why. Under the duty, boards must ensure that by carrying out robust EIAs and by involving and engaging relevant stakeholders as part of the decision-making process, any and all decisions made do not unfairly discriminate. In practice, discussions about the EIA and its methodology should start when any policy or change is initiated. It must be seen as a central part of the decision-making process, not as a bolt on or an afterthought which would be seen as a means of justifying a decision that has already been made. This was illustrated by the judge in the Ealing(7) case, who stated that The suggestion that a policy can be adopted contingent on such assessment smacks of policy-based evidence rather than evidence-based policy. Recent case law shows the need for organisations to demonstrate all decisions reached have taken into account both positive and negative impacts. 12 13
PROPORTIONALITY AND RELEVANCE ADVANCING EQUALITY As with everything, proportionality is a key factor. Board members would expect to see a more detailed EIA for strategic, larger or more complex proposals, for example, service reconfiguration or reallocation of finances. Sometimes, it will not be practicable or proportionate to undertake an EIA, but where this occurs, you should still be provided with a rationale and that decision should be recorded. Similarly, where the advice provided to you indicates that a proposal is not relevant to some or all of the protected groups, the reasons should be explained and recorded. Some organisations have developed a screening mechanism to help document decisions. As a rule of thumb, the larger the change and/or resource, the more this should be reflected in the size and depth of the EIA. Advancing equality means that you must not only ensure that what you do as an organisation does not discriminate, but you must also consider ways of proactively promoting equality. The Equality Act 2010 explains that having due regard to advancing equality involves: Removing or minimising disadvantages experienced by people due to their protected characteristics Taking steps to meet the needs of people from protected groups where these are different from the needs of other people Encouraging people with protected characteristics to participate in public life or in other activities where their participation is disproportionately low. 14 15
POSITIVE ACTION COLLABORATIVE WORKING WHERE DOES THE DUTY LIE? Positive Action is a main focus of the duty and organisations should feel confident in identifying appropriate Positive Action through the EIA process and implementing it. It means identifying and meeting a particular need where there is evidence which demonstrates the need for it. For example: The CEHR has been engaged in Project Enable: very few people with learning disabilities are in paid employment. Making reasonable adjustments to recruitment processes by providing supported employment internships enables people with learning disabilities to access paid jobs. When working collaboratively with other organisations, regardless of which sector they belong to, it is important to remember that the PSED cannot be delegated. Guidance from the EHRC(8) states that where bodies work in partnership they should consider developing a shared approach to meeting the equality duties. Having a joint approach to EIA will avoid duplication of effort and ensure responsibility and accountability is clear. Board members being asked to consider joint working proposals and integrated service delivery options need to ensure they are content with the arrangements for undertaking EIA and monitoring impact. For example, across South Wales five health boards worked collaboratively to identify how they could reconfigure key services across the health board areas. In order to do this, the health boards created a programme board to co-ordinate the planning and consultation for the reconfiguration proposals. Whilst the programme board contained representatives from each of the health boards, it could only recommend which reconfiguration option the health boards should take. Responsibility for making the final decision whether to accept the recommended option, and how each health board would comply with the PSED in implementing that option, remained with each individual health board. This meant each health board formally receiving a copy of the EIA relevant to their own organisation. 16 17
REMEMBER APPENDIX A No decision should be made without an Equality Impact Assessment. If a really contentious or complex decision is needed or you are unclear whether the EIA is robust enough, legal advice can be sought. For further guidance in relation to financial decisions, it may be helpful to refer to the EHRC s Making fair financial decisions: Guide for decision-makers.(9) Of course, if you are asked to make decisions and implement policies without an EIA or evidence, you should insist on these being provided. You should be concerned with not only has the EIA been produced, but also how identified impacts will be monitored and whether the mitigating measures have been effective. You will want clarity on who is the senior officer responsible that owns the mitigating actions and how they will continue to provide assurance on the delivery of those actions. Appendix A to this Guide contains two useful legal case studies which show where the courts have considered issues in respect of EIAs and compliance with the duty. Further examples can be found on the Centre for Equality and Human right s website at: www.equalityhumanrights.wales.nhs.uk/home Notable Case Law Although the Act came into effect relatively recently, the extensive case law that existed on the previous individual duties is directly relevant to the interpretation of the new single duty. In addition, the Equality Act 2010 has been tested, with one notable and ground breaking ruling made regarding cuts made by Birmingham City Council in social care. Birmingham City Council and Social Services Judgement(10) An interesting application of the duty concerned Birmingham City Council (BCC) and its decision to restrict eligibility for adult social care to only those individuals with critical needs. This meant that the Council would no longer offer free social care to those with substantial needs. Such needs include being unable: to carry out the majority of personal care or domestic routines and the majority of family and other social roles and responsibilities. For those who have substantial care needs but who do not have the means to fund care themselves, withdrawal of the support the Council provided would have a significant, detrimental impact on their day-to-day activities and lives. BCC produced several EIAs which purported to show due regard to the disability equality duty. However, the judge held that due regard had not in fact been shown. He noted the lack of assessment of the practical impact on those individuals affected by the change in eligibility. As a result, the judge found that both the budget and the resulting cuts to adult social care were unlawful, and described the impact of the proposed move to critical only care on disabled people as potentially devastating. 18 19
APPENDIX B Similarly, the courts found that BCC had not had due regard in another judgment concerning cuts to funding to legal advice services. The Equality Impact Needs Assessment was found to have been driven by the hopes of the benefits to be gained from the new policy, rather than focusing on the assessment of the degree of disadvantage to existing users, and how their needs could be alternatively met. R (on the application of Hunt) v North Somerset Council(11) In this Court of Appeal case, a challenge was brought against the local authority s decision to reduce spending on youth services. The applicant was aged 22 years with learning disabilities and behavioural problems. At first instance, the Judge relied on an inference that the decision-makers had read the EIA. EIAs were not provided to the councillors for their meetings, instead they were told how to access them and summaries were provided. The local authority sought to rely on the summary as sufficient to satisfy the PSED. The challenge under the Act succeeded on the following basis: Whilst councillors were told how to access the EIAs, they were not told, either expressly or impliedly, that they must or should consider them before the meeting One councillor, having read the EIAs, did not provide any indication as to what all the other councillors did or were likely to have done. This decision has led to Courts considering whether all the relevant decision-makers have had the opportunity to have had sight of the EIA. Due Regard the Brown Principles The requirements for demonstrating due regard are set out in Brown -v- Secretary of State for Work and Pensions (2008)(12). This court case set out six principles, commonly referred to as the Brown Principles. These are: Knowledge: those who exercise its functions (its staff and leadership) should be aware of the duty s requirements. Meeting the duty involves a conscious approach and state of mind. Decision-makers should therefore be aware of the implications of the duty when making decisions about their own policies and practices. Timeliness: due regard must be paid before and at the time that a particular decision is being considered, not later. Attempts to justify a decision as being consistent with the exercise of the duty when it was not, in fact, considered before the decision, are not sufficient to discharge the duty. The duty arises before and at the time that a particular policy is under consideration and a decision is taken. A public authority cannot satisfy the duty by justifying a decision after it has been taken. Analysis must be rigorous: the duty must be exercised with rigour and with an open mind - it is not a question of just ticking boxes. There must be substantial sifting of relevant facts and research, and fair attention to conflicting views. There must be meaningful consultation and engagement with interested parties. 20 21
APPENDIX C Non-delegation: the duty to have due regard cannot be delegated. The duty rests with the public authority even if they have delegated any functions to another organisation. Continuing duty: the duty is a continuing one. It cannot be exercised once and for all, but must continually be revisited and borne in mind. Record-keeping: the law requires transparency about how decisions were reached. This involves recording the evidence used and publishing records of your equality considerations with the relevant policy / proposal. It is useful to carry out this process when developing new policies as well as in the review of old policies. For further examples of published EIAs, contact your health organisation Equality Lead who will be able to help you. Resources References 1 Equality Act 2010 www.legislation.gov.uk 2 Public Sector Equality Duty www.legislation.gov.uk 3 Welsh Language Act 1993 www.legislation.gov.uk 4 Human Rights Act 1998 www.legislation.gov.uk 5 Welsh Language (Wales) Measure 2011 www.legislation.gov.uk 6 Equality and Human Rights Commission (2014) Procurement: A Guide for Listed Public Authorities in Wales www.equalityhumanrights.com 7 R (on the application of Kaur and Shah) v London Borough of Ealing [2008] EWHC 2062 (Admin) www.bailii.org 8 Equality and Human Rights Commission (2014) Assessing Impact and the Equality Duty: A Guide for Listed Public Authorities in Wales www.equalityhumanrights.com 22 23
9 Making fair financial decisions: Guidance for decision-makers www.equalityhumanrights.com 10 Birmingham City Council and Social Services Judgement www.bailii.org 11 R (on the application of Hunt) v North Somerset Council [2013] EWCA Civ 1320 www.bailii.org 12 R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (admin) www.bailii.org Useful Websites NHS Centre for Equality and Human Rights www.equalityhumanrights.wales.nhs.uk Equality Impact Assessment in Wales Practice Hub www.eiapractice.wales.nhs.uk/home Equality and Human Rights Commission www.equalityhumanrights.com 24 25
For more information, please contact The NHS Centre for Equality and Human Rights on 01443 233450 www.equalityhumanrights.wales.nhs.uk or your local health organisation Equality Lead Copyright 2015, Public Health Wales NHS Trust All rights reserved These materials may be photocopied for educational, not-for-profit use, as long as the contents are not altered in any way and Public Health Wales NHS Trust is named as the source of the content. These materials must not be reproduced for commercial use, or republished under any circumstances, without written permission of Public Health Wales NHS Trust. 26