The equality check your consultation cannot leave until the end

The Public Sector Equality Duty, the legal obligation under section 149 of the Equality Act 2010 to have due regard to equality in decision-making, must be active before and during consultation, not bolted on once responses are in. The Brown principles and Bracking make that clear. Timing is the question most organisations get wrong.

What does the Public Sector Equality Duty actually require?

The Public Sector Equality Duty, set out in section 149 of the Equality Act 2010, requires public authorities to have due regard to equality considerations whenever they exercise a public function, including running a consultation.

Due regard is not a tick-box exercise. It is a substantive obligation with a timing requirement built into it. The Government’s PSED guidance states that equality assessment must occur before and at the time a decision is being considered. Time for that assessment should be built into the work plan before the decision-maker acts, not added to the timetable once consultation has closed.

The duty covers three equality considerations: eliminating unlawful discrimination, advancing equality of opportunity, and fostering good relations between people who share a protected characteristic and those who do not. All three must be actively considered.

The duty also rests on the decision-maker personally. It cannot be delegated to a policy team, an equalities officer, or a consultant. The person with the authority to decide must receive and engage with the equality analysis before making that decision.

What are the Brown principles and why do they matter for consultation?

The Brown principles are the established judicial framework for assessing compliance with the Public Sector Equality Duty. Derived from R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), they set out six requirements that public bodies must meet when exercising functions subject to the duty.

The six Brown principles require that:

• Decision-makers must be aware of the duty.
• The duty must be considered before and during policy formulation, and at the time decisions are taken.
• The duty must be exercised with substance, rigour and an open mind.
• The duty is non-delegable.
• The duty is continuing.
• Good records should be kept.

The second principle is the one most directly relevant to consultation practice. Brown rejects the idea that equality considerations can be added after a substantive policy process has concluded. The duty must influence development while options remain genuinely capable of change. An authority that closes consultation before completing its equality analysis has, in practice, made the Brown principles impossible to satisfy.

The sixth principle also matters more than practitioners often assume. If a public body cannot produce records demonstrating when and how it considered equality impacts, a court will draw adverse inferences. Good record-keeping is not bureaucratic housekeeping. It is evidential protection.

Why does a late equality assessment create legal risk?

The leading Court of Appeal authority is Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, which consolidated the earlier case law and explained what due regard requires in practice.

The Court was direct. General awareness of equality issues is insufficient. The duty must be exercised in substance, with rigour and an open mind. Decision-makers must have adequate information about impacts before deciding. And equality analysis must not be a rearguard action undertaken after the substantive decision has effectively been reached.

That phrase, rearguard action, is worth holding onto. It describes a pattern that recurs in contested consultations: the equality impact assessment, known as an EqIA, is completed after consultation has closed, responses have been analysed, and a preferred option has crystallised. At that point, the EqIA cannot do what the law requires it to do. It becomes a document constructed to justify a position already taken, rather than analysis that informed the process.

Bracking arose from a challenge to both the consultation process and the equality analysis supporting the closure of the Independent Living Fund. The Court of Appeal found that there was insufficient evidence decision-makers had given focused consideration to the severe impacts on disabled people. The judgment reinforces the point that consultees must be able to respond to equality implications while proposals are still under active consideration.

What does this mean for practitioners running a consultation?

Consultation and equality analysis are not separate exercises to be run sequentially. They are mutually informing. Equality evidence should inform what a consultation asks and how it reaches affected groups. Consultation responses should, in turn, inform how equality impacts are assessed and whether proposed mitigations are realistic.

Leaving equality analysis until after consultation closes creates four specific problems. Consultees have not been able to engage with the equality evidence. Decision-makers have not received consultation responses that are themselves informed by equality impacts. Mitigation options may not have been explored with the groups most affected. And the EqIA risks becoming retrospective justification rather than part of policy formulation. Both the EHRC technical guidance on the PSED and the Government’s 2023 guidance confirm that equality impacts must be identified and mitigations explored before decision-making, not after it.

The EqIA should be treated not as a sign-off document produced at the end of a process but as a live analytical tool, updated as consultation evidence comes in. If any response changes the picture of equality impacts, the analysis and the options on the table must respond to that.

The timing test is simple: if equality analysis is completed after consultation closes, there is a real risk it fails the Brown principles. The duty must be live, not latent.

How tCI Can Help

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Risk Assessment
Early identification of legal, political or reputational risks in your engagement approach. Using tCI’s five-risk methodology, we spot gaps before challenge arises, helping you strengthen stakeholder communication and demonstrate procedural fairness from the outset.

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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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