The Public Sector Equality Duty (PSED) has been in force since April 2011. In the fourteen years since, there have been enough judicial reviews, EHRC investigations, and legal challenges to establish a clear picture of where local authorities consistently fall short. The patterns are remarkably consistent — and largely avoidable.
This piece draws on published case law, EHRC compliance reviews, and sector guidance to identify the five most common failures — and what to do about them.
1. Treating the duty as a one-off rather than an ongoing obligation
The PSED is not a checkbox exercise completed at the point of a decision. It is a continuing duty that requires councils to monitor the impact of their decisions over time and take action where negative impacts materialise.
Many councils produce an EIA for the original decision but have no mechanism for reviewing it twelve or twenty-four months later. When the EHRC has reviewed compliance, this gap — between initial assessment and ongoing monitoring — is one of the most frequently cited failures.
What good looks like: Build review triggers into EIAs from the outset. Specify when the impact will be reassessed, who is responsible, and what data will be used to evaluate outcomes against the predictions made at the time of the decision.
2. Insufficient evidence in EIAs
Courts have consistently found that vague or assertion-based EIAs do not satisfy the PSED. In R (Domb) v London Borough of Hammersmith and Fulham, the Court of Appeal emphasised that the duty requires "an adequate information base" — not just a process.
An EIA that states "this proposal may impact disabled people" without quantifying who is affected, how, and by how much, does not demonstrate due regard. The evidence base needs to be specific: local demographic data, research from credible organisations working in the relevant field, and — where available — consultation findings from affected communities.
3. Consulting too late, or not at all
Consultation is not a formal legal requirement of the PSED itself, but the duty to have "due regard" has been interpreted by courts to require genuine engagement with those likely to be affected by a decision. Consultation that is conducted after a decision is effectively final, or designed to ratify rather than inform, does not satisfy this standard.
Several high-profile judicial reviews have turned on the quality and timing of consultation with disabled people, older adults, and ethnic minority communities. The lesson is consistent: involve affected groups early, take their input seriously, and document how consultation findings influenced the final decision.
4. Failing to consider all nine protected characteristics
It is still common to see EIAs that focus heavily on a small number of characteristics — typically disability and race — and treat the remaining seven more superficially. The PSED applies equally to all nine. Sex, age, religion or belief, pregnancy and maternity, marriage and civil partnership, sexual orientation, and gender reassignment all require substantive analysis.
Common gap: Marriage and civil partnership is the most frequently under-analysed characteristic. While the general duty applies, the specific equality duties (monitoring and reporting) do not extend to this characteristic — but the general duty remains, and proposals that affect employment terms, housing allocation, or benefit eligibility may have impacts that need to be considered.
5. Senior decision-makers not being aware of the EIA
Perhaps the most significant finding from case law is that the PSED is not satisfied by an EIA existing somewhere in a council's document management system. Decision-makers — councillors, directors, and senior officers — must actually be aware of the EIA and its findings at the point of making their decision.
In R (Brown) v Secretary of State for Work and Pensions, the court held that "the duty must be fulfilled before and at the time when a particular policy is being considered." Reports to decision-making bodies must summarise relevant equality analysis, not merely reference it in an appendix.
The risk is real and growing
Judicial review of equality decisions has increased, and claimant success rates in PSED cases remain significant. Beyond the legal risk, a culture of genuine equality analysis produces better decisions — decisions that are more likely to achieve their intended outcomes and less likely to produce unintended harms that require expensive remediation.
Getting the PSED right is not primarily a legal compliance exercise. It is a discipline that, done well, makes councils more effective at serving all their residents.
See EqualityIQ on a real proposal
We'll run an assessment on one of your organisation's live proposals — no commitment required.
Request a free demo