Three PSED Cases That Changed Compliance and Why “We Didn’t Have the Data” No Longer Works (Part 1 – Case Law)

The Public Sector Equality Duty isn’t optional process theatre. It’s the first place campaign groups and lawyers look when challenging decisions that disadvantage protected groups. In the last 18 months, three cases have fundamentally reshaped what defensible compliance looks like and widened the gap between organisations that treat PSED as a checklist versus those who embed it as a decision-making discipline.

Suppose you’re a Consultation Officer, Communications & Engagement Manager, Community Engagement Lead, or Strategic Director signing off on decisions that affect service users, budgets, or organisational change. In that case, these developments have immediate operational implications. Because the legal standard for what constitutes “due regard” has shifted from principle to enforceable practice—and the courts are now prepared to say exactly where your process documentation falls short.

This is important for three reasons: (1) Judicial review is costly, can harm reputation, and causes delays in essential service delivery. (2) The standard of proof required for what counts as sufficient equality analysis has increased significantly. (3) Organisations that do not adapt are now losing cases they would have successfully defended just 24 months ago.

Here’s what has changed, why it matters, and what to review in your process before your next major decision.

Case 1: The Data Duty Is Now Enforceable—And Courts Will Specify Exactly What You Should Have Gathered

R (DXK) v Secretary of State for the Home Department [2024] EWHC 579 (Admin)

The High Court found the Home Office in breach of PSED for failing to collect and monitor equality data about asylum accommodation provision for vulnerable people. However, the significance of this case extends beyond the specific facts; it marks the moment when courts shifted from recognising a theoretical “duty of inquiry” to actively enforcing a practical evidential standard.

What the court actually said:

The judgment was clear: you cannot properly consider impacts on protected groups if you haven’t taken the time to identify who they are or how they are affected. The absence of data isn’t a neutral gap; it’s evidence that proper regard wasn’t genuinely given, regardless of what your EqIA template states.

This builds on earlier case law (Brown v Secretary of State for Work and Pensions, R (Bracking) v Secretary of State for Work and Pensions) that established PSED requires decision-makers to be “properly informed.” But DXK sharpened this into something enforceable: the court specified what kinds of data the Home Office should have collected, and found the failure to do so rendered their decision unlawful.

Why this changes your governance process:

Before DXK, many organisations regarded data gathering as “nice to have” rather than essential. When demographic data wasn’t easily accessible, they often relied on assumptions (“we believe this affects a diverse population”) and qualitative statements in the EqIA.

Post-DXK, that approach is legally inadequate. The case establishes that public authorities must take reasonable steps to gather relevant equality evidence before making a decision. The scope of “reasonable” depends on the context; you don’t need a full census for every decision — but you must show you asked the question and made a genuine effort.

What this looks like operationally:

Before any significant decision, you must now be able to answer:

1. Do we know who uses this service? Not in general terms (“diverse communities”) but in specific protected characteristics: age profile, disability status, ethnicity, sex, pregnancy/maternity, religion/belief. If it’s a staffing decision, do we know the demographic breakdown of affected employees?
2. Do we know how alternatives will be accessed by those groups? If you’re closing a facility and directing people to an alternative, have you assessed whether that alternative is equally accessible? For example, if disabled users currently access a ground-floor service and the alternative is on the second floor of a building without a lift, that’s a significant impact you must consider. You can’t evaluate it if you don’t know the disability profile of your users.
3. If we don’t have data, what steps can we reasonably take to gather it? This might include: analysing existing service records, conducting a user survey, consulting with representative organisations, checking census data for the area, or speaking directly with affected groups. The point is to show you made genuine enquiry.
4. What did we learn, and how did it inform our decision? This is the essential connection. Data collection isn’t just performative—it must clearly influence your options, mitigation measures, or implementation approach. Your meeting minutes should demonstrate decision-makers discussing the data and refining their approach accordingly.

Evidence that counts:

Both quantitative and qualitative evidence matter:

• Quantitative: Service user statistics, employee demographic data, census information for catchment areas, survey responses with demographic breakdown, usage analytics.
• Qualitative: Consultation responses from affected groups, focus group insights, case studies from frontline staff, input from representative organisations (disability groups, faith communities, etc.), lived experience testimony.

The failure mode to avoid:

The most common post-DXK risk is proceeding without data and claiming “we didn’t think it was relevant” or “we assumed impact would be neutral across groups.” Courts have consistently rejected these defenses. If your decision affects people, it affects people with protected characteristics—and you’re required to find out how.

Real-world application:

A local authority is considering closing three libraries and redirecting funding to a single hub location. Pre-DXK EqIA might have stated: “We believe this will impact diverse communities and we will monitor usage after implementation.”

Post-DXK, that’s insufficient. The authority must gather:

• Current user demographics (age, disability, ethnicity) at each location
• Geographic analysis (how far will users need to travel, what public transport options exist)
• Accessibility assessment (is the hub fully accessible, do current users have mobility issues)
• Digital exclusion data (if services move online, who lacks internet access or digital skills)
• Consultation responses from affected users, with demographic tracking

Then the EqIA must show how this data shaped the decision: perhaps keeping one branch open because it serves a high proportion of elderly users with no alternative access, or funding a mobile library service to reach areas with poor transport links, or providing additional disability access features at the hub.

The risk if you don’t:

Your decision becomes vulnerable to judicial review on PSED grounds, causing implementation to stall, legal costs to rise, stakeholder trust to diminish, and requiring you to restart the process with proper data collection often under public and media scrutiny. But there’s a deeper operational risk: without proper data, you make worse decisions, overlooking impacts that could have been mitigated, designing services that fail to meet actual user needs, and creating barriers you didn’t anticipate. Robust data collection isn’t just legal protection; it’s essential to avoid costly mistakes.

Case 2: PSED Has No Overseas Reach (Supreme Court, 2023)

R (Marouf) v Secretary of State for the Home Department (June 2023)

The UK Supreme Court confirmed that the PSED does not have extraterritorial effect. The duty generally doesn’t extend to people with no link to the UK.

The case involved a Syrian refugee scheme that excluded certain refugees abroad. The Court held that Parliament did not intend PSED to apply outside UK borders, absent clear wording.

What this means: Public bodies working in immigration, foreign policy, or international development contexts can now focus PSED analysis on domestic impacts with confidence.

The caveat: If overseas factors are “so germane” to a decision that they affect UK residents with protected characteristics, general fairness principles may still require consideration.

Practical guidance: For most local government, health, and emergency service decisions, this case has minimal impact. For policy teams working on international or immigration-related issues, it provides helpful clarity and narrows the scope of required analysis.

Case 3: PSED Is About Process, Not Individual Rights (High Court, 2025)

High Court ruling, February 2025 (Lavender J)

The High Court reaffirmed that PSED does not, in itself, confer individual rights that can be enforced for personal remedy. A service user cannot claim compensation simply because a public body failed to follow PSED.

What this clarifies: PSED enforcement is indirect – via judicial review that quashes decisions and requires reconsideration, not private lawsuits for damages.

Why it still matters: The lack of individual remedy doesn’t reduce operational risk. Judicial review still:

• Halts implementation
• Generates negative media coverage
• Wastes budget on legal costs and rework
• Damages stakeholder trust
• Delays outcomes for service users

The strategic implication: PSED challenges are about getting decisions overturned and forcing reconsideration. For Engagement Officers and Consultation Managers, this underscores that your process documentation is what protects the organisation—not the outcome itself, but the demonstrable rigour of how you reached it.

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How tCI Can Help

Quality Assurance: Independent review at critical stages, from evidence protocol design through to final reporting, ensuring your approach to qualitative data meets legal and good practice standards. Our seven-stage QA process includes assessment of analysis methods, interpretation fairness, and compliance with Gunning, PSED and ICO requirements.

Early Assurance: A snapshot review during planning to sense-check your evidence framework, codebook design, and proportionality rationale before fieldwork begins.

Charter Workshops: Half-day sessions helping your team understand good practice standards for handling qualitative consultation data, including rigorous analysis and defensible interpretation.

Whether you’re preparing for a high-stakes service change or need confidence that your evidence approach will stand up to scrutiny, we can help. Contact tCI for Quality Assurance at hello@consultationinstitute.org