Fairer Scotland Duty: guidance for public bodies

Meeting the Duty day-to-day

This section sets out an example process for meeting the Duty on a day-to-day basis.

These steps are intended to be similar to those used by many public bodies for equality impact assessment (EQIA),^[32] as part of the PSED. This should mean it’s straightforward for public bodies to fit the Duty into its day-to-day processes. You may wish to reference your work on implementing your Duty in your Equality Mainstreaming reports given the cross cutting nature of the issues.

Since the introduction of the Duty, we have seen examples where a draft Duty assessment has been undertaken and published and then refreshed over the course of the policy development and implementation; or, an initial statement has accompanied an early stage ‘vision’ document to indicate that a Duty assessment will be undertaken at a later stage in the policy development process. This approach can allow repeated consideration of evidence, and facilitate scrutiny, at different stages in policy development. For instance, a draft Duty assessment for Scotland’s Census 2022 published in advance of a rehearsal and consultation provided information on implications for inequality.^[33] This was then reviewed in light of evidence from those exercises.

Publishing a Duty assessment supports transparency, allowing communities, other public bodies and regulators to see that you are paying due regard and appropriately considering socio-economic disadvantage and inequality in all of your strategic decisions. The involvement of those whom the strategic decision will affect supports democratic and transparent decision-making.

Examples of Duty assessments are posted in the Fairer Scotland Duty Knowledge Hub and can be searched for on the Scottish Government’s Publications page. To access the Knowledge Hub please register first, then search for the Fairer Scotland Duty KHub and submit a joining request.

A summary of the recommended process follows and is explained in more detail over the following pages.

Stage 1 – Planning

Is this proposal/decision strategically important or not?

• YES – Begin the Fairer Scotland assessment process during development of the proposal. Move to Stage 2.
• NO – There is no requirement for a Fairer Scotland assessment. Move to Stage 5.

Stage 2 – Evidence

What evidence do you have about socio-economic disadvantage and inequalities of outcome in relation to this decision? Do you have evidence for likely impacts on inequality? Is it possible to gather new evidence, involving communities of interest?

Stage 3 – Assessment and Improvement

In discussion, consider: What are the main impacts of the proposal? How could the proposal be improved so it reduces or further reduces inequalities of outcome? How do alternative proposals compare in this?

Stage 4 – Decision

This stage is for an appropriate official to confirm that due regard has been paid. They should be satisfied the body has understood the evidence, considered whether the policy can narrow inequalities of outcome, considered improvements and the links to socio-economic disadvantage and equality.

Stage 5 – Publication

Public Bodies covered by the duty should be able to show that they have paid due regard to meeting it in each case. This should be set out clearly and accessibly, and signed off by an appropriate official from the body in question. This should include an ‘assessment not required’ statement where appropriate.

Many organisations use an Integrated Impact Assessment which considers a range of duties and requirements at the same time (e.g. Equality Impact Assessment, Children’s Rights Impact Assessments, Fairer Scotland Duty Assessment, Islands Impact Assessment, Health Impact Assessment, Human Rights Assessment), bringing all the evidence available together and looking across the various duties. Other organisations carry out Fairer Scotland Duty assessments as a standalone process. Whichever process is used it is important to ensure that the legal requirements are met and the process is not a tick-box exercise.

The Planning Stage of the process enables public bodies to determine whether the Duty applies and, where it does, to start planning how to meet it. The Duty assessment process should begin at the same time as the programme/proposal/decision development process begins.

Stage 1 – Planning

The key question to ask at this stage is: Is this a strategic programme/proposal/decision or not? If it is not strategic, there is no formal requirement for it to be subject to the Duty. However, public bodies may wish to consider socio-economic factors in their planning in any case, as good practice. There may of course still be a requirement for due regard under the PSED and appropriate equality impact assessment.

If the decision is clearly not strategic and there is no perceived benefit from a Duty assessment, move to Stage 5. You should complete an ‘Assessment Not Required Declaration’ and have this signed by an appropriate officer. A suggested template is set out at Annex B.

If it is strategic, there are three initial tasks to complete.

• First, develop a plan for the remaining stages below, ensuring that there is sufficient time to do so. Note that the public body will need to pay due regard during the development of the proposal, not simply when the decision is being taken. This means starting your assessment as early as possible.
• Second, confirm the aims and expected outcomes of the programme/proposal/decision and identify any alternative options.
• Third, ensure the right range of people are engaged to take part in the assessment process and alert any other appropriate officers in the organisation that the assessment is now underway and that it may affect the final decision to be made.
• Once you’ve done that, Move to Stage 2.

Stage 2 – Evidence

The Evidence Stage of the process is where public bodies should make full use of the data they hold or can access as they consider how to exercise their responsibilities under the Duty. The evidence used should be robust, relevant and fully considered. It should not be set out to support a pre-determined position.

The key questions to ask at this stage are:

• What outcome(s) is the programme/proposal/decision trying to achieve?
• What does the evidence suggest about the programme/proposal/decision’s actual or likely impacts on socio-economic disadvantage and the key inequalities of outcome under consideration?
• Are some communities of interest or communities of place more affected by disadvantage in this case than others? What does our EQIA planning work – for this issue and previously – tell us about sex, race, disability and other protected characteristics that we may need to factor into our decisions.
• What existing evidence do we have about the proposal being developed, including what could be done differently?
• Is there evidence of the types of options that might have a more positive impact in respect of socio-economic disadvantage?
• Are there particular barriers that are likely to reduce service uptake among socio-economic disadvantaged groups?
• Is it possible to commission or collect new evidence in areas where we don’t currently have any? For example, through consultation meetings, focus groups or omnibus surveys?
• The voices of people and communities will be important here. What is the best way to involve communities of interest (including those with direct experience of poverty and disadvantage) in this process?

Stage 2 – Evidence

Most public bodies already have access to a wide range of relevant data (both quantitative and qualitative), from a range of sources on existing disadvantage and inequality. Sources for evidence on disadvantage includes administrative data, data about local neighbourhoods (e.g. Scottish Index of Multiple Deprivation), local child poverty estimates, new experimental statistics on combined low income and material deprivation (now available at local level); while health, education or employment data can provide evidence on key inequalities of outcome. Some public bodies will have access to richer data than others. For example, local authorities may be able to use Council Tax Reduction, free school meals and Housing Benefit data that others may not have access to. There is a resources section at the end of this guidance with more details of available data sources. Another type of evidence is on the actual or likely impacts that the decision might have on socio-economic disadvantage and inequalities of outcome, including what could be done differently. This can come from evaluation of similar previous decisions or interventions in other public bodies or jurisdictions, trials or other academic research. For instance, the Duty assessment for the Deposit Return Scheme for Scotland drew on evidence from trials of different models in other countries to consider which option might lead to the best outcomes for households in Scotland experiencing poverty.^[34]

Strategic decisions can result in a range of direct and indirect consequences which are not always well understood.

Where no evidence is available, it may be possible to generate this via focus groups, omnibus surveys or consultation exercises. Evidence should also be sought from communities and groups directly, particularly when there are evidence gaps. For example, where a significant new programme/proposal/decision is being developed. If they are provided with a clear account of the policy options and what they are intended to achieve, disadvantaged groups can help frame what this will mean for people like themselves. Gathering the views of people experiencing poverty to inform new programmes/proposals/decisions can help them feel included in decisions likely to affect them – the principle of ‘nothing about us without us’ – and that this may improve their situation. Individuals with experience of poverty have a unique understanding of the issues they face, and decisions that take account of this expertise will be most effective in addressing inequality.

The Poverty Alliance’s Get Heard Scotland Toolkit has been designed to help groups and organisations undertake discussions about poverty in Scotland.^[35] It can be used to gather views on poverty and have solution-based conversations focusing on what works, what doesn’t and what needs to change. These discussions should help to identify focused solutions within particular communities, based on the experience of those taking part in the discussions. The Poverty Alliance has also co-produced useful guidance for the Poverty and Inequality Commission on involving experts by experience.^[36]

Engagement processes should ideally reflect the principles of the National Standards for Community^[37] Engagement keeping in mind that there is a significant risk of burden on community groups arising from the number of areas where emphasis on engagement is increasing at the moment, while public sector capacity to do this effectively and sustainably is low.

Your local Third Sector Interface^[38] may be able to help you to connect with local representative organisations and ensure the voice of direct experience is reflected in your decision-making processes. As mentioned above, engaging with other local public bodies via Community Planning can help with the sharing of evidence and most importantly feedback from communities.

At national level you can also engage with Community Planning Partnerships across the country, as well as national bodies representing those with direct experience of poverty, marginalisation and disadvantage (which, of course, local areas can also do).

Another source of help – particularly in terms of integrating equality and socio-economic considerations is the Scottish Government Equality Evidence Finder.^[39] This is an updated web resource providing equality evidence by subject area and protected characteristic. We have been expanding this to include socio-economic disadvantage as an additional category, also including child poverty considerations. The resource also allows many of Scotland’s National Outcome indicators to be broken down by socio-economic disadvantage.

Stage 3 – Assessment and Improvement

The assessment and improvement stage brings together the evidence and a consideration of potential improvements to the programme, proposal, or decision. Assessments should draw on evidence to explain why strategic decisions reached are expected to reduce inequality gaps.

It’s essential that appropriate officers in the organisation are involved at this stage to ensure that opportunities for developing a better proposal are able to be taken up. This will be key for meeting the ‘due regard’ test. Undertaking a Duty assessment should be a team rather than an individual exercise.

The key questions to discuss at this stage are:

• What are the potential impacts of the programme/proposal/decision and any possible alternatives as we currently understand them (these can be direct or indirect)?
• How could the programme/proposal/decision be improved so it reduces or further reduces inequalities of outcome which result from socio-economic disadvantage?
• Are the views of people who are socio-economically disadvantaged being taken into account in the development process?
• How will this programme/proposal/decision assist you to reduce inequalities of outcome which result from socio-economic disadvantage?
• How will you know if such inequalities of outcome have been reduced i.e. what monitoring and evaluation is required?
• If you are now planning to adjust the programme/proposal/decision, could it be adjusted still further to benefit particular communities of interest or of place who are more at risk of such inequalities of outcome?
• Is there an opportunity to target an intervention towards disadvantaged groups, or take account of barriers in implementation, if evidence shows this will narrow gaps?

The outcomes of the assessment phase, with any options emerging for consideration, should be clearly set out for consideration by the appropriate officer(s) in Stage 4. If proposals have changed considerably, there may also be a case for further consultation with communities.

Stage 4 – Decision

This decision stage allows appropriate senior officer(s) to consider the assessment process from Stages 2 and 3, agree any changes to the programme, proposal or decision and confirm that the public body has paid due regard to meeting the Duty in this case.

Key questions to ask at this summary stage are:

• What, in brief, does the evidence base underpinning the programme/proposal/decision say about its potential impacts on inequalities of outcome associated with socio-economic disadvantage?
• What changes, if any, will be made to the programme/proposal/decision as a result of the assessment? Why are these changes being made and what are the expected outcomes?
• If no changes are proposed, please explain why.
• A note of this discussion, with answers to the above questions, should be prepared ahead of Stage 5.

Stage 5 – Publication

Stage 5 enables public bodies covered by the Duty to show that they have paid due regard to meeting it in each case.

Where a proposal, plan or decision is not considered to be strategic, this should be set out clearly and accessibly, and signed off by an appropriate officer from the public body in question (there is a suggested template for this at Annex B). This could be made available via one of the following routes:

• As a section in or an annex to a publication setting out the programme/proposal/decision
• As a separate section within an EQIA, focusing on the programme/proposal/decision

Where a programme/proposal/decision is considered to be strategic, a record from Stage 4 should be set out clearly and accessibly, and signed off by an appropriate officer from the public body in question. This could be written up in one of the following ways:

• As a section in or an annex to a publication setting out the strategic proposal, plan or decision
• As a Fairer Scotland Duty assessment document, published separately
• As a separate section within an EQIA, focusing on the strategic programme/proposal/decision.

Published assessments provide an important means for stakeholders and others to understand how socio-economic disadvantage is being considered in strategic developments, and should therefore be transparent for a wide readership. Findings, conclusions or the consideration of evidence should be reported with supporting references or an account of methods, and should show how alternatives to the final decision were evaluated.