Equality Analysis and the PSED: Is Your EqIA Good Enough?

Most public bodies complete an Equality Impact Assessment (EqIA). Far fewer complete one that actually satisfies the Public Sector Equality Duty (PSED). The gap between the two is where judicial review challenges are won. This article explains what Section 149 of the Equality Act 2010 requires that most EqIAs consistently fail to deliver.

Why are equality challenges still succeeding in court?

In Diocese of Menevia and Others v City and County of Swansea [2015], Swansea Council lost a judicial review challenge connected to school reorganisation proposals. The court found the equality analysis inadequate. Not because the authority had ignored the duty entirely, but because its process had not produced the evidence that due regard actually requires.

That pattern remains common. Organisations know they need an EqIA, the document produced to demonstrate compliance with the Public Sector Equality Duty. They complete one. And they then discover, at challenge, that completing the document and satisfying the legal duty are not the same thing.

The reason is almost always the same. Officers are familiar with Section 149(1) of the Equality Act 2010 and the eight protected characteristics it covers: age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. They build their EqIA around those. They stop reading at that point. Section 149 does not stop there, and the provisions that follow are where most processes break down.

What does Section 149 require that most practitioners miss?

Section 149(3) of the Equality Act 2010 sets out what advancing equality of opportunity actually means in practice. It is the part of the duty that most EqIAs treat as invisible. It requires public authorities to have due regard to the need to remove or minimise disadvantages suffered by people who share a protected characteristic, to take steps to meet needs that are different from those of people who do not share it, and to encourage participation in public life where that participation is disproportionately low.

Each of those obligations has direct implications for how an EqIA must be produced. They cannot be satisfied by listing characteristics on a form. They require the authority to understand actual disadvantage, actual differing needs, and actual barriers to participation. That understanding does not come from a desktop exercise.

Section 149(3)(c), the participation duty, is the most direct link between equality analysis and consultation. It does not merely require that a consultation be open to all. It requires that public bodies actively encourage participation by groups where involvement is historically low. Very few EqIAs show any evidence of targeted outreach to those groups. The reliance on a standard survey or a single public meeting is not sufficient to discharge that obligation.

The courts have reinforced this consistently. In Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, the Court of Appeal held that due regard must be exercised in substance, with rigour and with an open mind. Decision-makers must be properly informed. Officials must understand cumulative impacts on affected groups. Analysis based on assumption rather than evidence will not satisfy the duty, regardless of how well the EqIA document is formatted.

What is the real problem with desktop equality analysis?

The EqIAs most likely to face legal challenge are not those produced by organisations that ignored the duty. They are those produced by officers who worked through a template conscientiously, listed the protected characteristics, noted potential considerations, and concluded that no significant impacts had been identified. The document looks thorough. The evidence base, on examination, is almost entirely absent.

The specific failures that create risk are consistent across sectors.

• The EqIA focuses on whether groups exist rather than what their specific needs are and whether the proposal meets them. Noting that disabled people may be affected is not equality analysis. Explaining what their needs are, whether the proposal addresses those needs, and what happens if it does not is.
• There is no evidence of direct engagement with affected communities. The duty under Section 149(3)(c) to encourage participation implies an active step, not a passive invitation. An EqIA produced without speaking to any of the groups it covers is not an analysis; it is a projection.
• The EqIA is completed after the preferred option has been chosen. In R (Brown) v Secretary of State for Work and Pensions [2008], the court confirmed that due regard must be fulfilled before and during decision-making, not retrospectively. An EqIA written to justify a decision already made does not satisfy the duty.
• Conclusions are recorded without showing how they were reached. The courts look for evidence of reasoning, not just outcomes. Where an impact was identified and dismissed, the grounds for dismissal need to be explained and recorded.

In R (Hurley and Moore) v Secretary of State for Business, Innovation and Skills [2012], the court confirmed that there is no prescribed format for equality analysis. What matters is substance. A concise EqIA built on genuine inquiry will withstand challenge. A detailed document built on assumption will not.

What should decision-makers take from this?

An EqIA is not a compliance document. It is an investigative one. Its purpose is to inform the decision-maker, not to protect the organisation after the decision has been made. That distinction shapes everything about how the process should be run.

Equality analysis must begin before options are fixed, so that the evidence it produces can actually influence the outcome. It must engage directly with affected communities, particularly where participation has historically been low, so that the evidence reflects real experience rather than assumption. And it must focus on needs, disadvantage and the potential for proposals to make things worse, not simply on whether protected characteristics have been acknowledged.

The organisations that face equality challenges are rarely those that set out to cut corners. They are those where the EqIA process has drifted into a form-filling exercise disconnected from genuine engagement and genuine inquiry. The legal requirement is clear. The gap between what most EqIAs deliver and what Section 149 requires remains wider than it should be.

How tCI Can Help

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Whether you’re preparing for a high stakes service change or building defensible evidence for complex decisions, we can help.

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