Fairer Scotland Duty: interim guidance for public bodies

About the Duty

What is Fairer Scotland Duty?

The Fairer Scotland Duty, Part 1 of the Equality Act 2010, comes into force in Scotland from April 2018.

It places a legal responsibility on particular public bodies in Scotland to actively consider ('pay due regard' to) how they can reduce inequalities of outcome caused by socio-economic disadvantage, when making strategic decisions. This is set out in a diagram below, with more explanation in the pages that follow.

We know that many in the public sector and beyond see this new Duty as an opportunity to do things differently and to put tackling inequality genuinely at the heart of key decision-making. People in Scotland still experience significant socio-economic disadvantage and resulting inequalities of outcome. Over a million Scots are living in poverty, including one in four children; and health inequalities and educational attainment gaps are far too wide. This unfairness isn't inevitable. We can reduce poverty and inequalities of outcome, helping to realise the rights of the people who have experienced them.

To fulfil their obligations under the Duty, public bodies must be able to meet what we've called the key requirement in each case:

• to actively consider how they could reduce inequalities of outcome in any major strategic decision they make; and
• to publish a written assessment, showing how they've done this.

Some other considerations worth bearing in mind are as follows:

• The Duty applies from 1 April 2018 and does not cover decisions made before this date.
• The Duty also does not override other considerations – such as equality or best value.
• The Duty is nevertheless a key consideration, underpinned by statute.
• The Equality and Human Rights Commission ( EHRC) is the Regulator for the Fairer Scotland Duty and will be closely involved with monitoring and the development of best practice for the Duty, particularly in the first three years, seen by the Scottish Government as an implementation phase.

Which public bodies are covered by the Duty?

These public bodies are covered by the Fairer Scotland Duty:

• Scottish Ministers [see below]
• Local Authorities
• Regional Health Boards
• Special Health Boards
• Integration Joint Boards
• The Scottish Police Authority
• Highlands and Islands Enterprise
• Scottish Enterprise
• Revenue Scotland
• Food Standards Scotland
• The Keeper of the Records of Scotland
• The Keeper of the Registers of Scotland
• The Scottish Courts and Tribunals Service

"Scottish Ministers" covers the following: The Scottish Government, Accountant in Bankruptcy; Disclosure Scotland; Education Scotland; Scottish Prison Service; Scottish Public Pensions Agency; Student Awards Agency for Scotland; and Transport Scotland. The new Scottish Social Security Agency, once established, will also fall under Scottish Ministers and will therefore be subject to the Duty.

The public authorities in the list above will have somewhat different functions. Some will take strategic decisions on a regular basis, others only occasionally. How often public bodies engage with the Duty will therefore vary – for some, it may only be once a year, for example in relation to an annual plan.

It's also worth noting that the functions of public authorities can change – for example, when given new responsibilities by government. This means that a public body's engagement with the Duty may also need to change over time.

Defining ‘Socio-Economic Disadvantage’

In broad terms, ' socio-economic disadvantage' means living on a low income compared to others in Scotland, with little or no accumulated wealth, leading to greater material deprivation, restricting the ability to access basic goods and services. Socio-economic disadvantage can be experienced in both places and communities of interest, leading to further negative outcomes such as social exclusion.

These issues are now considered in more detail, with reference to where data is available to look further at each element.

Low Income Compared to Most Others in Scotland

Low income is a key driver of a range of negative outcomes and can be defined in a range of ways. Relative poverty (after housing costs) is a useful headline measure, looking at the number of individuals living in households in Scotland with incomes below 60% of UK median income. Statistics on absolute poverty (which looks at whether households' living standards are changing over time) and persistent poverty (where households live in poverty for 3 years out of 4) are also available. Poverty statistics can in most cases be broken down by age group, and breakdowns by gender, ethnicity, disability, tenure and urban/rural are also available. These show minority ethnic groups and households with a disabled adult or child with much higher poverty rates. Some key links are provided here.

• National statistics are available here: http://www.gov.scot/Topics/Statistics/Browse/Social-Welfare/IncomePoverty
• Local child poverty statistics, down to ward level (using proxy data) are available from the End Child Poverty Coalition here: http://www.endchildpoverty.org.uk/poverty-in-your-area-2018/
• Joseph Rowntree Foundation ( JRF) has published a range of very useful analysis on poverty, including a Minimum Income Standard approach: https://www.jrf.org.uk/income-and-benefits
• New Policy Institute has produced useful analysis on disability and poverty for JRF https://www.npi.org.uk/publications/income-and-poverty/disability-and-poverty/

However, looking at headline statistics in isolation can sometimes offer a limited perspective on low income. Experience of poverty, for example, is gendered, even though official statistics show broadly similar rates of poverty between men and women. Largely, this is a function of looking at household poverty – in which women's and men's incomes are considered together as joint incomes This conceals key differences, not least women's lower pay, greater likelihood of part-time working and care responsibilities, and the gender pay gap. It also conceals how different groups of men and women fare: lone parents (mostly women) and single adults who live alone (mostly men) are much more likely to live in poverty. Detailed analysis, then, can help form a more useful picture for tackling inequalities of outcome than headline statistics alone.

Low Wealth

Having access to wealth (including financial products, equity from housing, and a decent pension) provides some protection from socio-economic disadvantage, particularly when the wealth comes in the form of accessible savings. Savings can help households deal with problems that arise on a day-to-day basis. But we know from analysis of wealth and assets in Scotland that wealth inequality is much deeper than income inequality and that the least wealthy 30% of households owned very little or no financial, private pension or property wealth, and less than 7% of physical wealth in 2012/14. Single adult households, including lone parent households, again had very high risks of low wealth: nearly two thirds of lone parent households and over half of single working age households were low wealth households in 2012/14. Nearly half of low wealth households were in employment; households with lower educational qualifications and in routine or manual occupations had significantly higher risks of low wealth.

More on wealth inequality can be found here: http://www.gov.scot/Publications/2017/02/6032/0

Material Deprivation

Refers to households being unable to access basic goods and services and, in data terms, tends to focus on families with children and on pensioner households. Obviously, if households cannot afford to buy items like home contents insurance, a warm winter coat for children or don't have money to repair/replace broken electrical goods, this could impact on outcomes. For example, disadvantaged children and young people, who lack access to IT hardware and broadband services at home, may find homework more challenging, and this may then impact on the attainment gap.

Material deprivation has complex links with low income. Some households will be on a low income, but still have the basic necessities they need to get by, perhaps because they built them up over time; or perhaps relatives and friends help out; or they may be able to draw on some savings. Other households may be unable to afford many basic goods and services, even though their income is a bit higher – perhaps because they need to pay off debt, or only recently started a new job after a period of unemployment. Again, there are equality dimensions here too. For households with children, women as traditionally the main carers of children (and sometimes other adults too) may go without themselves to provide for those they are looking after. Minority ethnic families tend to be larger, which means more resources are needed to meet basic needs. Similarly, disabled families – with a disabled adult or child – may need additional help and support to meet basic needs and the specialist help they may require (people and equipment) can often be costly.

• More on material deprivation and low income as it affects children in local areas can be found here (experimental statistics): http://www.gov.scot/Publications/2017/11/9758
• National child combined low income and material deprivation statistics, and pensioner material deprivation data are available at national level in the annual poverty statistics report: http://www.gov.scot/Topics/Statistics/Browse/Social-Welfare/IncomePoverty

Area Deprivation

Living in a deprived area can exacerbate negative outcomes for individuals and households already affected by issues of low income. The most deprived areas face significant challenges; and this is particularly the case for deep-rooted deprivation – for example, those areas that have been consistently among the 5% most deprived in Scotland since SIMD 2004.

• The Scottish Index of Multiple Deprivation ( SIMD) is the official Scottish Government tool for identifying areas of multiple deprivation in Scotland. But it is not the only tool and in some contexts it will be important to look at other data and/or combine SIMD data with other evidence to get a full picture. SIMD datasets can be found here: http://www.gov.scot/Topics/Statistics/SIMD

However, socio-economic disadvantage is not always experienced in neat concentrations of people in recognisable communities. Indeed, two out of three people who are income deprived do not live in deprived areas. So while it may be appropriate in many cases to take an approach focused on areas of multiple deprivation, there will also be a need to look at deprivation as it affects particular communities of place or communities of interest.

' Communities of place' refers to people who are bound together because of where they reside, work, visit or otherwise spend a continuous portion of their time. For example, people in particular rural, remote and island areas face a particular set of circumstances which exacerbate disadvantage – for example poverty is often hidden in smaller communities; cost of living and accessibility of transport, education and employment impact more negatively on rural populations.

The further work done on minimum income standard for remote, rural Scotland may also be useful. http://www.hie.co.uk/regional-information/economic-reports-and-research/archive/a-minimum-income-standard-for-remote-rural-scotland---a-policy-update.html

' Communities of interest' can refer to groups of people who share an experience. For example, consideration of the impact of strategic decisions on people who have experienced homelessness, care or the asylum system may help develop a deeper understanding of possible socio-economic impacts. Those who share one or more of the protected characteristics listed in the Equality Act 2010 can also be considered communities of interest. Those who share an identity – for example, lone parents – can similarly be communities of interest too.

Data for small populations is often problematic because of sample sizes or where data doesn't exist, but these are areas where raising awareness by talking to people with lived experience will be particularly important.

Socio-Economic Background

The structural disadvantage that can arise from parents' education, employment and income – social class, in other words – is a final key factor in socio-economic disadvantage. This is, however, more difficult to measure and will require further consideration as to how we build it into assessment.

In summary, socio-economic disadvantage is focused on low income, low wealth, material deprivation and area deprivation – with communities of interest and of place as cross-cutting issues.

The issue of socio-economic background will be explored during the implementation phase.

Defining ‘Inequalities of Outcome’

The Fairer Scotland Duty is intended to reduce the inequalities of outcome caused by socio-economic disadvantage. By inequalities of outcome, we mean any measurable differences between those who have experienced socio-economic disadvantage and the rest of the population – for example, in relation to health and life expectancy or educational attainment. Socio-economically disadvantaged households have a higher risk of experiencing negative outcomes. The Duty is outcome focused – so, for example:

• In terms of connectivity, we want households to have equal access to the internet. But while 98% of households with an income above £40,000 had internet access, this dropped to 63% for households with an income below £15,000. There are also challenges of connectivity for people in more remote locations compared to urban areas, although the gap in access between the lowest and highest income brackets has decreased from 67% in 2007 to 30% in 2016.
• In terms of incomes, we ideally want everyone to have enough income to be able to save. But more than half of households in the poorest fifth of the population have no savings or investments, compared with just one in eight households in the richest fifth. This means households facing an emergency risk getting into debt to try and resolve it.
• In terms of education, we ideally want disadvantaged pupils' educational outcomes to be the same as for pupils from non-disadvantaged backgrounds. But only 43% of school leavers in the most deprived areas are qualified to Higher level or above, compared with 81% of Scottish school leavers in the most affluent areas.
• In terms of children's health, more than a quarter (26%) of those living in the poorest fifth of households reported less than good health in the first four years of life, compared to just 12% of those in the richest fifth.
• In terms of life expectancy, we would ideally want this to be the same for men and women no matter where they live. However, men's life expectancy is less than women's. Furthermore, men living in the most deprived areas experience 23.8 fewer years of good health compared to men in the most affluent areas. Similarly, women living in the most deprived areas experience 22.6 fewer years of good health compared to women in the most affluent areas.
• In terms of communities, we want people to be satisfied with their neighbourhoods, wherever they are in Scotland. However, in the least affluent areas of Scotland only 10% of residents rated their neighbourhood as a very good place to live, compared to almost 80% of those living in the most affluent areas.

In seeking to meet the Duty, we would expect public bodies to tackle the range of inequalities of outcome they observe in their areas or that are specifically relevant to their core functions. In some cases, as shown in the previous diagram, an effective way to do this will mean tackling socio-economic disadvantage directly by, for example, reducing poverty.

Defining ‘Strategic Level’

The Duty is set at a strategic level – these are the key, high-level decisions that the public sector takes. Many of these decisions may be made in the context of public service reform and improving outcomes for people and communities. In general, they will be decisions that affect how the public body fulfils its intended purpose, over a significant period of time. These would normally include strategy documents, decisions about setting priorities, allocating resources, and commissioning services – all decisions agreed at Board level (or equivalent).

For some organisations, such decisions may only be taken occasionally, perhaps once a year. In other cases, they will come up more often. Strategic decisions will have a major impact on the way in which other tactical and day-to-day operational decisions are taken; but they are not in themselves tactical or operational.

Below, we list a range of areas of strategic decisions. This shouldn't be seen as an exhaustive list.

• Preparation of the Local Development Plan
• City deals or other major investment plans
• Preparing legislation
• Development of new strategic frameworks
• Development of significant new policies or proposals
• Preparation of an annual budget
• Major procurement exercises
• Decisions about the shape, size and location of the estate
• Preparing a Local Outcomes Improvement Plan as part of a CPP
• Preparing locality plans
• Preparation of a Corporate Plan
• Commissioning of service

As noted in the introduction, we are funding a new National Coordinator post in the Improvement Service, working on the new Duty and on child poverty. The postholder will work with public bodies to build on this list of strategic decisions over time and highlight good practice models to follow.

Of course, consideration of how to reduce socio-economic inequalities can obviously improve any decision-making, whether the decision in question is strategic or not. So while the statutory focus of the Duty is on strategic decision-making, the ultimate aim of the Duty – as with our equality responsibilities – is for consideration of socio-economic disadvantage to be mainstreamed.

Defining ‘Due Regard’

The concept of ' due regard' should be well understood by public bodies in relation to the equality duties they already need to meet. Due regard in relation to the Fairer Scotland Duty should be considered in a similar way. Here are some key considerations to bear in mind:

Active consideration. To 'have due regard' means that, in making any strategic decision, a public authority subject to the Duty must actively consider, with an open mind, whether there are opportunities to reduce inequalities of outcome caused by socio-economic disadvantage. This is not a tick box exercise. Serious consideration must be given – and as early in the decision-making process as possible. That's why we've suggested in this guidance that an appropriate officer must be involved in any assessment process under the Duty. There is also an expectation that 'due regard' is given both by staff at the formation of any strategy/plan/programme and by decision makers at its adoption.

Participation. It may be easier to demonstrate that due regard has been paid if any assessment involves those who may be directly affected by the decision under consideration. The Equality Act does not set a legal requirement to involve communities in meeting the Fairer Scotland Duty, but the EHRC recommends it. ^[1] Participation is also a human rights principle.

Proportionality. How much regard is due will depend on the relevance of the decision to the scale of socio-economic disadvantage and inequalities of outcome in relation to each strategic issue.

Due regard does not mean there is an obligation to achieve a result. Public bodies are not required to reduce inequalities of outcome as part of any decision made under the Duty. There may be a range of good reasons why it's not possible to seek to do so in any particular case.

Results are, however, important. If it is possible for public bodies to make changes to a policy, programme or decision to reduce inequalities of outcome, and there are no compelling reasons for not doing so, due regard would suggest that those changes should be made.

A record of the decision-making process is also important. To ensure that public authorities can demonstrate that they have paid due regard, a record of the assessment process should be written up and made publicly available.

Public bodies can be held to account under the new Duty. As with the Public Sector Equality Duty, if a public body fails to give due regard as required, any individual who is affected could take a Judicial Review arguing that the authority had failed to meet a statutory duty. EHRC could also take a Judicial Review against a body who fails to meet the Duty, as its method of enforcement. However, the Equality Act does not establish 'socio-economic discrimination' – socio-economic status is not a protected characteristic in the Act – and therefore no claim of that type could be made.

Equality, Human Rights and Child Poverty

The bodies listed under the Fairer Scotland Duty are already covered by the Public Sector Equality Duty and the Human Rights Act. This means there is an opportunity to build on and improve existing practice on equality and human rights when working on the Fairer Scotland Duty. Local authorities and health boards also have new responsibilities in relation to child poverty – but all of the public sector will be expected to help meet the aims of the Child Poverty (Scotland) Act 2017. This means that there are also opportunities to focus on reducing child and family poverty when considering how to meet the new Duty.

Although the Fairer Scotland Duty is derived from the Equality Act 2010, it is separate from the public sector equality Duty ( PSED), which requires public bodies to have due regard to the need to:

• eliminate discrimination, harassment, victimisation and any other conduct prohibited by the 2010 Act;
• advance equality of opportunity between persons who share a relevant protected characteristic (as defined by the 2010 Act) and persons who do not share it; and,
• foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

But while they are separate, there are clear links between the aims of both Duties. As noted earlier in this guidance, those who share particular protected characteristics are often at higher risk of socio-economic disadvantage. So for the most part, it won't be possible to reduce inequalities of outcome effectively if the problem and its solutions aren't considered through an equality lens. For example, in 2015-16, around one in four children were living in households in poverty. But some families with children were much more likely to live in poverty – these include minority ethnic families, families with a disabled adult or child, lone parent families, and families where the mother is under 24 years old. If we fail to consider the specific barriers to these families, we'll likely fail to reduce child poverty and improve outcomes.

With the above in mind, equality groups will be important 'communities of interest' for any socio-economic assessment public bodies undertake. Sometimes communities of interest may also overlap with communities of place – for example, where a relatively larger proportion of minority ethnic households live in a particular deprived area.

Having said this, managing the two Duties may prove challenging in some cases. Applying the Fairer Scotland Duty complements the PSED, but it's important to note that it doesn't supersede or replace it. ^[2] We will ask the National Coordinator to focus in on how these two parallel processes can work together successfully in practice, ideally with each strengthening the other.

Approaching this Duty in the right way will also help public bodies meet their obligations under the Human Rights Act ( HRA) and international human rights law and to deliver their services appropriately. Under the HRA, it is unlawful for public bodies in Scotland to act incompatibly with the Convention rights, and they also have obligations as part of the state to give effect to international human rights treaties signed and ratified by the UK. International treaties with rights regarding economic and social circumstance are as follows:

• International Covenant on Civil and Political Rights
• International Covenant on Economic, Social and Cultural Rights
• Convention on the Elimination of All Forms of Racial Discrimination
• Convention on the Elimination of All Forms of Discrimination against Women
• Convention on the Rights of the Child
• Convention on the Rights of Persons with Disabilities

The United Nations ( UN) has been supportive of the introduction of the Fairer Scotland Duty. The Scottish Government updates the UN on progress towards implementing and observing international human rights standards by including a distinctive Scottish contribution in formal UK reports to the UN Committee on Economic, Social and Cultural Rights. The Scottish Government was also represented as part of the UK delegation in Geneva during a review of the UK under the Covenant in June 2016. Following this review, the UN Committee included the following recommendation in its set of concluding observations:

"The Committee recommends that the State party bring into force the relevant provisions of the Equality Act that refer to the public authorities' duty with respect to socio-economic disadvantage, as well as with respect to the prohibition of intersectional discrimination, in order to enhance and guarantee full and effective protection against discrimination in the enjoyment of economic, social and cultural rights."

The Scottish Government has now done this. There may also be scope for integrating approaches to the Fairer Scotland Duty with a human rights approach, particularly for economic and social rights. ^[3] However, that practice is still being developed – again, we will ask the National Coordinator to consider this during the Implementation phase.

Three year implementation phase

Reflecting the fact that this is interim guidance, the Fairer Scotland Duty will be subject to a three year implementation phase. This means that we will be reviewing with the EHRC how the Duty is working in practice over this period and offering a range of help and opportunities to share best practice. Note that the duty will remain a statutory requirement and the EHRC (and individuals) may still be able to bring a judicial review if they feel due regard has not been given in any particular case.

The new National Coordinator at the Improvement Service will help public bodies implement the Duty successfully. The coordinator will also be working on the local child poverty plans flowing from the new Child Poverty Act, so there are good opportunities for joined up working between these two areas. We will also be asking the coordinator to run regional best practice events and to make recommendations to the Scottish Government on how the interim guidance can be improved and tools and templates developed, based on your feedback.

The PSED is also subject to separate reviews by the Scottish Government and the EHRC. We will therefore be looking at how both duties are working together in the field to maximise their joint ability to reduce inequality and advance equality. We'll also be asking the EHRC to contribute to final guidance.