Appendix G: Equality legislation overview

35. Equality legislation overview

35.1 Introduction and limitations

35.1.1. This section of the research seeks to present an overview of current equality legislation and the principles of incorporating this into the built environment engagement and design process. It also deals in more detail with other legislation that is referenced elsewhere in this report. This should not be treated as a definitive legal view of the implications of the Equality Act and other legislation for street design and maintenance. Rather, the chapter represents the informed views of non-legal experts working in the sustainable transport field^[92]. It is not intended as legal advice and as such it should not viewed or referenced in such a way.

35.1.2. It is recommended that more in-depth legal research should be undertaken by appropriate legal specialists.

35.2 Overview of the Equality Act 2010

35.2.1. The Equality Act^[93] prohibits various forms of discrimination against people with one or more of nine 'protected characteristics', as follows:

Age.
Marriage and civil partnership.
Religion and belief.
Disability.
Pregnancy and maternity.
Sex.
Gender reassignment.
Race.
Sexual orientation.

35.2.2. Those prohibited from discriminating by the Act are so-called 'service providers' which refers to anyone (covering the public, private and voluntary sectors) who provides goods, facilities or services to the public or to a section of the public, whether or not they are paid for. Examples of service providers include:

Local Authorities, i.e. Road / Transport public space maintenance, redevelopment, etc.
Transport service provider, i.e. bus, rail, taxi, etc.
NHS.
Disability organisation / charities providing support services.
Businesses i.e. shops, banks, builders, estate agents, gyms, cinemas, etc.

35.2.3. The following forms of discrimination are prohibited under the Act. Those most relevant to street and road schemes and maintenance and are explained in further detail below:

Direct discrimination - for example prohibiting a disabled person from accessing a certain street.
Indirect discrimination.
Discrimination arising from disability.
Failure to make reasonable adjustments.
Harassment.
Victimisation.
Failure to give equal pay.

35.3 Indirect discrimination

35.3.1. In this case, a service provider applies a provision, criterion or practice (PCP) to everyone and the PCP puts people with a protected characteristic at a particular disadvantage. If the impacts of the PCP on people with protected characteristic(s) have not been analysed by the service provider and / or there is no argument for saying that the PCP allows the service provider to achieve a legitimate aim, then there is no reasonable justification for the PCP.

35.3.2. An example might be the following: vehicle crossovers across footways (pavements) to allow vehicles to access premises increase the slope of the pavement from the back to the kerb (the crossfall). Crossfalls in excess of 2% can be dangerous to negotiate for people with reduced mobility or those in wheelchairs. If a local authority's practice is for its footway maintenance schemes to replace any crossover with a like for like crossover with a steep crossfall, this may be indirect discrimination – since low cost alternatives with much reduced impacts on disabled people do exist.

35.4 Discrimination arising from disability

35.4.1. A service provider discriminates against a disabled person if they treat them less favourably because of something arising in consequence of their disability. For example, if a scheme is designed so that a busy stretch of pavement is less than 2m wide, then this may mean that people in wheelchairs are being treated unfavourably in comparison to those who are not, since the former could not pass two abreast on the stretch of footway.

35.4.2. However, discrimination arising from disability can be justified under the Equality Act if it is a proportionate means of achieving a legitimate aim. This means that discrimination need not be eliminated completely if the service provider has analysed the impact on people with protected characteristics who are affected by the scheme and has weighed against these negative impacts the other positive outcomes that it wishes to achieve with it. It should also take into account in such a process the reasonable adjustments (e.g. speed reducing measures, existing or proposed signalised crossing) that it could build into the scheme to mitigate the negative impacts on the people with protected characteristics and demonstrate that there is no alternative that would achieve the same outcomes that it seeks, but that would have a lesser impact on people with protected characteristics.

35.5 Reasonable adjustments

35.5.1. Where a person with a protected characteristic, such as a disability, is put at a substantial disadvantage compared to person without the same protected characteristic by a scheme or a practice, there is a duty to make changes to provisions, criteria or practices. Physical features; and / or auxiliary aids and services may need to be provided in order to reduce (but not necessarily to wholly eliminate) that disadvantage. This is the idea of a 'reasonable adjustment'. They have to be planned for in advance and must be paid for by the service provider. Any legal case to assess whether a reasonable adjustment has not been made has to be brought by a disabled person directly affected. A substantial disadvantage could be, for example, an individual being forced to use their wheelchair in the carriageway between their home and the nearest bus stop due to a lack of dropped kerbs.

What is reasonable?

35.5.2. Some organisations (for example Transport Scotland 'Roads for All' guidance) have developed a standard 'test of reasonableness' to assess when an adjustment is reasonable. The Act offers the following guidance on this assessment in terms of factors to take into account:

Whether the adjustment would be effective.
How practicable it would be to make the adjustment.
Financial and other costs of making the adjustment, and whether financial assistance is available to pay those costs.
Any disruption which making the adjustment would cause, including the impact on other objectives of a scheme.

35.5.3. Some service providers also take into account in their test of reasonableness the number of people with the protected characteristic likely to use the scheme. The assessment of reasonableness means of course that not every possible adjustment will necessarily be judged to be reasonable and therefore all possible adjustments are not required in order to comply with the Act. Making no adjustments at all, however, is unlikely to be judged to be reasonable, and having no systematic process by which to assess possible adjustments and their reasonableness is likely to be unlawful.

Examples of reasonable adjustments

35.5.4. Aberdeen City Council has for many years used its existing powers under Roads Traffic Regulation Act (RTRA) 1984 to prohibit footway parking^[94] where it causes substantial disadvantage by implementing a Traffic Regulation Order that is then enforceable in the same way as other parking and loading restrictions in the city. This is a reasonable adjustment made to ensure that the footway is passable for those with mobility difficulties.

35.6 Public Sector Equality Duty (PSED)

35.6.1. The intention of Section 149 of the Equality Act 2010 is for local authorities and those working on their behalf to positively advance equality in their decision making and in their polices and schemes.

35.6.2. Therefore, the Equality Act requires government officials and those contracted to them at all levels to seek opportunities for positive action that supports equality. This can be achieved through improved understanding of the needs of those with protected characteristics who live and interact within the proposed environment and this understanding can be derived through engagement and training.

35.6.3. In brief, the focus of the PSED is on organisational change to eliminate discrimination, rather than individual cases of discrimination and related reasonable adjustments. However, there is a clear link between the two since the PSED, if properly implemented, will ensure that an organisation's processes, including the planning of schemes, will be carried out in such a way that indirect discrimination is identified more systematically and rigorously and corresponding adjustments more likely to be made, meaning that the whole planning process is more inclusive.

35.6.4. The PSED covers eight of the protected characteristics, including disability, and all bodies carrying out a public function. It requires these bodies to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations.

35.6.5. Public authorities can demonstrate that they have acted with 'due regard' if they show that they have carried out an evidence-based assessment of impacts of policies, practices and schemes before they are implemented and taken active steps to mitigate (although not necessarily completely eliminate) any adverse impact on persons with protected characteristics. In the context of inclusive street design, this would mean involving disabled people in active meaningful consultation on design and maintenance policy and processes, and then in scheme design – although the disabled people involved in the consultation need not be the sole source of evidence of the impacts of the scheme on disabled people; other evidence can also be used. The impact assessment, including the mitigating actions adopted, must be published.

35.7 Other legislative and regulatory considerations

35.7.1. The role of engagement and the designer is key to this research, and it is appropriate therefore to have an appreciation of other legislative and regulatory considerations.

Gunning principles – consultation law

35.7.2. The Gunning Principles^[95] are a set of rules for public consultation that were proposed in 1985 by Stephen Sedley QC, and accepted by the Judge in the Gunning v London Borough of Brent case. There were initially four principles:

That consultation must be at a time when proposals are still at a formative stage.
That the proposer must give sufficient reasons for any proposal to permit intelligent consideration and response.
That the product of consultation must be conscientiously taken into account in finalising any statutory proposals.
That adequate time must be given for consideration and response.

35.7.3. Two further points added by the Supreme Court following Moseley v Haringey Council (2014):

The degree of specificity with which, in fairness, the public authority should conduct its consultation exercise may be influenced by the identity of those whom it is consulting.
The demands of fairness are likely to be somewhat higher when an Authority contemplates depriving someone of an existing benefit or advantage than when the claimant is an applicant for a future benefit.

35.7.4. The Gunning Principles therefore highlight the importance of adherence by public bodies, the third sector and others to the expectation to engage with communities, following guidance such as the National Standard for Community Engagement^[96] (Scotland) and the UK Government publication Community Engagement: Guidance for Local Authorities^[97].

35.8 Construction (design and management) regulations 2015

35.8.1. Under the Construction (Design and Management) Regulations 2015, there is a responsibility to ensure an appropriate designer is appointed to undertake the design. This is covered in the following extract from paragraph 7 of L153^[98] HSE Managing Health and Safety in Construction: Construction (Design and Management) Regulation 2015 – Guidance on Regulation:

35.8.2. "Anyone responsible for appointing designers (including principal designers) or contractors (including principal contractors) to work on a project must ensure that those appointed have the skills, knowledge and experience to carry out the work in a way that secures health and safety. If those appointed are an organisation, they must also have the appropriate organisational capability. Those making the appointments must establish that those they appoint have these qualities before appointing them. Similarly, any designers or contractors seeking appointment as individuals must ensure they have the necessary skills, knowledge and experience".

35.8.3. This implies that at the very least, designers and contractors of street schemes should have training on how the Equality Act applies to such schemes, since failing to address equality issues in line with the requirements of the Act could in some circumstances lead to schemes that fail in health and safety terms, either during or after construction.

35.9 Legal and technical context

35.9.1. This research does not aim to reproduce the legal and technical context presented in Manual for Streets and Manual for Streets 2 and Scottish Government 'Designing Streets' policy. These documents do, however, summarise key elements of the following key legal documents and these should be considered as part of any legal review, understanding the function of each in relation to the other,

35.9.2. Highway Code outlines a number of rules of the road, with certain rules having legal basis, and being used in court under the Road Traffic Act to establish liability between different street users. The Road Traffic Act 1988 states:

"A failure on the part of a person to observe a provision of The Highway Code shall not of itself render that person liable to criminal proceedings of any kind but any such failure may in any proceedings (whether civil or criminal, and including proceedings for an offence under the Traffic Acts, the [1981 c. 14.] Public Passenger Vehicles Act 1981 or sections 18 to 23 of the [1985 c. 67.] Transport Act 1985) be relied upon by any party to the proceedings as tending to establish or negative any liability which is in question in those proceedings".

35.9.3. The Highways Act 1980 (England and Wales) and the Roads (Scotland) Act 1984 are Acts of Parliament governing the management and operation of the road network.

35.9.4. The Road Traffic Act 1988 is an Act of Parliament of the United Kingdom, concerning licensing of vehicles, insurance and road regulation. Part 1 includes a number of traffic offences.

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