The Home Office has called for a review of the public sector equality duty (PSED), as part of the Red Tape Challenge spotlight on equalities, which seeks ways for the aims of existing regulation to be fulfilled in the least burdensome way possible.

The public sector equality duty is set out in section 149 of the Equality Act 2010 and says that public bodies must have due regard to the need to: eliminate discrimination, harassment and victimisation; advance equality of opportunity; and foster good relations between people who have, and those who do not have, any of the ‘protected characteristics’. The ‘protected characteristics’ identified in the Equality Act are: age, gender, gender reassignment, sexual orientation, disability, ethnicity (the Act uses the term ‘race’), marriage & civil partnership (in connection with eliminating discrimination), pregnancy & maternity and religion or belief. The public sector equality duty came into force just over two years ago, on 5 April 2011.

The steering group which has been convened to oversee the review has called for evidence on: a) how well the PSED and related guidance are understood; b) the costs and benefits of the PSED; c) how organisations are managing legal risk and ensuring compliance with the PSED; and d) what changes, if any, would ensure better equality outcomes (for example legislative, administrative and/or enforcement changes).

CSIE has responded to this review and said that, in our experience, the PSED is not fully understood or implemented in schools. At a time when hate crime is reported to be increasing, the PSED should not be withdrawn but plans to support its implementation should be put in place as a matter of urgency. We also added that the benefits of eliminating discrimination, advancing equality of opportunity and fostering good relations by far outweigh any financial costs in the process. Our full response appears below.

CSIE submission to PSED review

The Centre for Studies on Inclusive Education (CSIE) has been at the forefront of developments in inclusive education for over 30 years. Founded in 1982, the Centre has extensive experience of working to promote equality and eliminate discrimination in education for everyone regardless of age, impairment, gender, gender identity, sexual orientation, ethnicity, religion or belief. CSIE provides training and consultancy nationally and internationally and produces resources which support the development of inclusive education, some of which have become popular with education practitioners throughout the world. For more information please see www.csie.org.uk.

Our practical knowledge of the field and of relevant documentation, as well as our recent interactions with parents, schools, local authorities and other organisations in the sector, have led us to believe that the PSED is not yet fully understood or properly implemented in schools. In particular:

• Information and guidance for schools has been published by the EHRC and DfE in January and February 2013 respectively. The two documents are not entirely consistent with one another and do not clearly describe the PSED, including the specific duties. Schools find the combined information ambiguous and confusing, thought they value the practical examples and concrete suggestions with regard to formulating equality objectives.
• An August 2012 study by the Insted Consultancy analysed equality documentation from 40 schools and found that barely a quarter of them had published equality objectives in a way that is consistent with the PSED.
• The Children’s Commissioner’s report “They never give up on you” (March 2012) suggested that the current system of school exclusions is in breach of the UN Convention on the Rights of the Child and of the Equality Act 2010. Boys, those from Black Caribbean background, those identified as having special educational needs and those eligible for free school meals are disproportionately likely to be excluded from school. The report highlighted that such differentials in exclusion rates between different groups are not compatible with schools’ statutory duties under the Equality Act. It recommended that schools are given clear guidance on interpreting their statutory equality duties and that Ofsted takes a stronger lead in ensuring these duties are implemented. The follow-up report “They go the extra mile” (March 2013) confirmed that not much has changed and schools’ awareness of their statutory equality duties remains low.
• There is a discrepancy in how schools deal with prejudice-based bullying. In many schools it is still expected that staff will respond strongly to incidents of racist bullying but lightly, if at all, to disablist, homophobic or transphobic bullying. This is confirmed in the Ofsted report “No place for bullying” (June 2012) which exposed disturbing levels of bullying in schools, particularly towards disabled and lesbian, gay, bisexual or transgender (LGBT) children and young people.
• The reasonable adjustments duty is not consistently implemented, particularly with regard to school admissions and to decisions about disabled children and young people’s participation in every aspect of school life.

It follows from the above that the current legislation is not well understood in education; there is no immediate need to modify the legislation, but there is an urgent need to support its implementation. Hate crime, particularly disability hate crime, is reported to be increasing (see “Hidden in plain sight”, EHRC report of September 2011 and “Out in the open”, follow-up report of October 2012). Much more needs to be done in education, in order to eliminate discrimination and harassment, to advance equality of opportunity and to foster good relations between people who have a protected characteristic and those who do not. Getting this right in education is a first step towards better appreciation of diversity and greater social justice. The benefits of achieving this by far outweigh any financial costs in the process. In order to ensure that the PSED is better understood and fully implemented, CSIE recommends that:

• teachers, school leaders and governing bodies are provided with more constructive guidance and well-structured opportunities to understand the rationale behind the PSED and its implications for their day to day practice;
• schools are encouraged to have clearly articulated values, formulated and shared by the whole school community, and to ensure all curriculum areas are planned and delivered in ways that support the understanding and valuing of diversity;
• compliance with the PSED is closely monitored through a clear chain of accountability;
• support is offered to schools where there are concerns about how the duty is applied on a day to day basis in relation to pupils and staff who have protected characteristics;
• clear strategic leadership is shown by the Department for Education, with regard to conveying the significance of the PSED and setting up structures to ensure it is consistently applied and transparently monitored.