Summary: We will not investigate this complaint alleging the Council has failed to consider the Public Sector Equality Duty and Equality Act when it implemented a grant policy. We have not seen enough evidence of fault in the Council’s actions. Also, we cannot decide whether the Council has breached the Equality Act, therefore it is reasonable to expect the complainant to raise the matter in court.

The complaint

1. Ms X complains the Council has failed to evidence that it considered the Public Sector Equality Duty (PSED) and the Equality Act when it implemented a grant policy.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

3. I considered information provided by Ms X and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
6. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
7. The protected characteristics referred to in the Act are, age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
8. The Public Sector Equality Duty was created under the Equality Act 2010. The duty requires all local authorities (and bodies acting on their behalf) to have due regard to the need to:
• eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act
• advance equality of opportunity between people who share a protected characteristic and those who do not; and
• foster good relations between people who share a protected characteristic and those who do not.
9. The broad purpose of the Public Sector Equality Duty is to consider equality and good relations into the day-to-day business and decision making of public authorities. It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.
10. The Council says its grant policy is not discriminatory because financial disadvantage is not a protected characteristic under the Equality Act. It states

“Grant payments are issued as a reimbursement of eligible expenditure (i.e. paid in arrears) incurred by the business and will be paid upon receipt and validation of the required supporting evidence (invoices and bank statements). All supporting evidence documentation is to be submitted to the Sandwell Business Growth Team.”

11. However, Ms X states the requirement to pay the full costs up-front before reimbursement demonstrably disadvantages single mothers with disabilities and indirectly restricts access to public funds in violation of section 19 of the Equality Act 2010.
12. Indirect discrimination may occur when a council applies an apparently neutral provision, criterion or practice which puts persons sharing a protected characteristic at a particular disadvantage.
13. I have not seen anything to suggest this occurred, but we cannot decide if there has been a breach of the Equality Act or discrimination. This is a matter Ms X would need to pursue in court; alternatively, she could contact the Equality and Human Rights Commission.

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Final decision

14. We will not investigate Ms X’s complaint. There is not enough evidence to show the Council failed to consider the Equality Act or the PSED when it implemented its grant policy. And, as we cannot determine whether the Council has breached the Equality Act, it is reasonable for Ms X to ask the courts to consider the matter.

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Investigator's decision on behalf of the Ombudsman