High Court ruling on impact assessments underlines significance of public sector duties

Kaur and Shah v London Borough of Ealing (CO/3880/2008)

Ealing Council provided financial support to organisations dealing with domestic violence. Southall Black Sisters had previously been funded by the Council to support Afro-Caribbean and Asian women, and part of their work involved addressing issues of domestic violence amongst those communities. In 2007, the Council took the view that in the interests of ‘community cohesion’ they should only fund organisations that provided services to the whole borough, not just to specific racial groups.

The Council’s decision was challenged on the grounds that they had failed to carry out a race impact assessment to assess the impact of the proposals on women from Afro-Caribbean and Asian communities before they were implemented.

The challenge was upheld by the High Court who held that the impact assessment had to be carried out before the policy was adopted: ‘What is important is that a racial equality impact assessment should be an integral part of the formation of a proposed policy, not justification for its adoption.’

Recognising different needs

The High Court did not accept Ealing’s argument that the principle of community cohesion meant that they could not fund one specific demographic group. Lord Justice Moses said that ‘There is no dichotomy between the promotion of equality and cohesion and the provision of specialist services to an ethnic minority’, and quoted from the government’s 2007 Equalities Review that ‘an equal society recognises people’s different needs, situations and goals and removes the barriers that limit what people can do and can be.’

The High Court decision also reinforces the significance of the codes of practice relating to the public sector duties issued by the former equality commissions. The Court held that an authority is only entitled to depart from the statutory codes for reasons which are clear and convincing.

What this means for higher education

This case reinforces the need for compliance with the public sector duties. The courts are increasingly prepared to intervene if the duties are ignored. This includes compliance with the requirements to carry out impact assessments prior to policy or practice being introduced, and also compliance with the terms of the relevant codes of practice.

The fact that higher education institutions obtain significant funding from the private sector does not affect the fact that as a matter of law they are subject to the requirements of the race, disability and gender duties.

Further information

The full findings from the case are available on the Public Law Project website:

• Kaur and Shah v London Borough of Ealing (CO/3880/2008)