The operation of the Public Sector Equality Duty in Scotland

Age Scotland is the Scottish charity for older people. We work to improve the lives of people over 50 and promote their rights and interests. We help older people to be as well as they can be, we promote positive views of ageing and later life, and we tackle loneliness and isolation. We do this by providing information, advice and friendship via our free helpline, friendship line and information guides, supporting and enabling older people’s community groups, promoting age-friendly workplaces and communities, delivering health and wellbeing programmes and campaigning on the issues older people tell us are important to them.

About this call for views
We welcome the opportunity to respond to this call for views on the way that the Public Sector Equality Duty in Scotland is operating to help inform the Equalities, Human Rights and Civil Justice Committee’s inquiry sessions.

Age Scotland responded to the Scottish Government’s consultation on the effectiveness of the Public Sector Equality Duty (PSED) in Scotland in April 2022. We welcome this additional opportunity to comment on whether the proposed reforms will improve the delivery of the general duty.

We believe that not all the listed public authorities fully understand the terms and aims of the PSED in Scotland. Most listed public authorities will publish the required reports within the specified reporting cycle, as can be accessed via the PSED Portal housed by the Coalition for Racial Equality and Rights (CRER). However, publishing reports alone does not mean that they truly understand or deliver the aims of the PSED.

For example, many listed public authorities publish a Mainstreaming and Equality Outcomes Progress Report such as Healthcare Improvement Scotland and NHS Boards. However, some of these simply restate vague language of the general PSED, such as that the authority is “committing to eliminating discrimination” without the detail of how it will or has done so. Furthermore, listed authorities often explain how they have held discussions or meetings about equalities, but this does not equate to actually delivering the intended aims of the PSED. Therefore, this highlights that there is a lack of true understanding from the listed public authorities of what the PSED is trying to achieve and why they are important.

One of the most significant aspects missing from the listed authorities’ lengthy reports is any of the outcomes or the impact on those with protected characteristics due to their work towards equality outcomes. More often than not, listed authorities simply list what was done rather than exploring the impact on those with protected characteristics. We believe that a stronger link needs to be made between PSED and Equality Impact Assessments (EQIA). EQIA is a very important part of the Equality Act 2010 and requires outcome monitoring. By strengthening this link and working to improve listed public authorities' understanding of how the PSED and EQIA can support each other, this would help encourage outcome-driven actions with long-term change in practices, resulting in improved access to services by those who face barriers. It will help to address the fundamental lack of awareness that PSED needs to look at the impact of actions on those with protected characteristics.

Technical guidance on the PSED in Scotland is publicly available, however, it is not being consistently or entirely followed by all listed public authorities. This guidance is extremely long and complex yet covers a range of important areas for listed public authorities to consider. For example, section 6.10 ‘Duty to publish in a manner that is accessible etc’ states that when a public authority publishes the required reports under the PSED Scotland specific duties, this must be published in a way that is accessible to the public. This includes having reports in accessible formats such as braille, large print, and easy read, as well as in a variety of languages. This guidance for publishing accessible formats does not appear to be followed consistently or notably. There are some examples of good practice, but not many therefore demonstrating that listed public authorities clearly do not all understand the terms and aims of the PSED in Scotland. Many public authorities may say that information is or can be available in different formats and languages but do not actively communicate this directly with those who need it. Additionally, many public sector websites are hard to navigate and documents are a challenge to locate, have poor accessibility, and while reports are published online, they aren’t well communicated or promoted. If you do not have internet access or are uncomfortable using it, people will otherwise be unaware of the existence of these documents. This means they are not truly accessible to those that they may impact most.

We believe that there needs to be a significant effort before any reforms to PSED duties are introduced to improve the knowledge, skills and understanding of those who complete the PSED, and the organisational leaders who make decisions about services and activities. Without improvements in understanding, any new duties will follow the same path as seen since 2012 when Scotland Specific Duties were introduced, namely a lack of significant improvement felt by those with protected characteristics which the PSED aims to improve.

We do not believe that the PSED in Scotland is delivering on its aims to improve outcomes for people with protected characteristics. Whilst most listed public authorities might publish the required reports, if they simply use this as a tick box or exaggerate the small actions to meet the PSED Scotland Specific Duties (SSD) requirements, then it doesn’t help to improve outcomes for those with protected characteristics. This is even acknowledged in the Equality and Human Rights Commission’s research, which found that most listed public authorities focused on the actions they had taken, rather than any changed outcomes for those with protected characteristics. This research highlighted that 66% of equality outcomes were not found to have shown a direct impact on those with protected characteristics. Whilst this research is now 7 years old, we don’t believe that there has been significant improvement in the effectiveness of the PSED-specific duties in improving outcomes for people with protected characteristics in this time. Looking at a selection of recent Equality Outcomes reports from listed public authorities there still appears to be a focus on reporting actions taken, rather than any tangible impact on those with protected characteristics.

One example of how the PSED is not delivering its aims to improve outcomes for those with protected characteristics is regarding older people. Age is a protected characteristic under the Equality Act (2010) and is therefore covered by the general PSED and Scotland-Specific Duties (SSD), despite often being overlooked as a protected characteristic. We do understand that age is also interlinked with other protected characteristics i.e. race, religion, disability, sex and sexual orientation. While intersectionality is important while looking at older people, the extent to which age as a protected characteristic is included and analysed under the PSED varies considerably. Since the introduction of specific duties in 2012, there has not been a significant improvement in outcomes for older people, for example, in their experiences of service delivery. Older people in Scotland still face significant barriers to accessing the services they need including social care, social security and other critical services due to factors such as a lack of availability, budgetary constraints, difficult application processes and digital exclusion. This is even more pronounced for those with overlapping protected characteristics such as older people with a physical and/or mental disability, and those from ethnic minority backgrounds.

For the PSED in Scotland to deliver on its aims to improve the outcomes for all those with protected characteristics, especially those with intersectional characteristics listed public authorities must take a more proactive approach. By its very nature, PSED shouldn’t be convenient for providers if it is to succeed in making a real difference to those with protected characteristics. Simply listing one-off actions on a report is not good enough. We do not believe that a complete overhaul of PSED-specific duties is necessarily needed. The specific duties as designed have the opportunity to achieve their aims, they have just not been considered, or implemented properly. For this to change, there must be stronger accountability mechanisms on listed public authorities to provide sufficient evidence of the experienced impact of the PSED on those with protected characteristics which should include measurement and monitoring of the impact on groups due to an implemented change, and not just on whether they have published a report.

In our response in 2022 to the Scottish Government’s consultation on the effectiveness of the PSED in Scotland, we were broadly supportive of reforms. However, as previously discussed, we do not believe that these reforms alone will necessarily solve the existing issues with the PSED. The current aims are not properly understood, and many listed public authorities do not appear to truly understand the value of the PSED and that these should be the core and overarching theme of all services from the start. Without this core understanding, any new reforms will not help to embed an inequalities focus, in turn, improving outcomes for people with protected characteristics or the most vulnerable in our society who do not have a voice.

Firstly, looking at the proposed reform to revise the current pay gap reporting duty to include reporting on ethnicity and disability, we have concerns about what difference reporting these gaps will have in reality for those with these protected characteristics. For example, looking at the existing duty to report the pay gap based on gender, evidence from Close the Gap demonstrates that simply reporting the gender pay gap has not created any meaningful change. Therefore, if this duty is reformed but follows the same process as the existing duty, we do not believe that it will assist in improving outcomes for those with the protected characteristics of ethnicity and/or disability. For this to make a difference, there needs to be appropriate funding and resources provided to public authorities to enable them to facilitate these additional reporting duties. This additional funding should be used to improve equal opportunities for those with protected characteristics. For example, active bystander training, equality training, blind recruitment, and office adaptions among other changes would help to reduce the barriers preventing those with protected characteristics from accessing equal opportunities. Additionally, it is vital that public authorities mainstream PSED reporting into existing annual reports to help improve efficiency and reduce the perceived burden of equality reporting. If the proposed reforms are adopted and are to make an impactful difference alongside existing duties, there must be a significant shift in culture within the public sector to accept their responsibilities in this area and remove the burden of upholding equalities from the recipients (those with protected characteristics) to the providers themselves.

Any proposed reforms, whilst a good idea in principle, must not overshadow the work which is required for the existing duties to be implemented effectively. Currently, the PSED Scotland-specific duties, whilst created with the best intentions, have not delivered what they intended to and there has been a lack of change felt by those with protected characteristics since they were introduced in 2012. We do not believe that the suggested reforms alone will fix this. What is needed is a change in practice as to how the PSED-specific duties are implemented and delivered to change the focus from public authorities simply stating what they have done, to a focus on the tangible impact for those with protected characteristics. Unless this fundamental aspect is addressed, current duties and any new reforms will continue to fall short of the intended outcome to advance equality in Scotland. Where there are pockets of good practice in having a more equality-focused approach, the learning from these areas should be shared. An example of good practice is the 25 Councillors from 22 Scottish Local Authorities who are “Older People Champions”. They work to ensure that older people and their concerns, issues and perspectives are being heard and considered at a local authority level in meetings, agendas and in any actions taken forward. Whilst the work is specifically down to the individual champions, and capacity we are confident that with continued engagement, providing information, knowledge and skills, they are providing a voice for older people locally.

As stated in our response to the 2022 Scottish Government consultation, we strongly supported the proposed plan to embed inclusive communication as a requirement under the PSED Scottish Specific Duties. We still support any action to make communication more inclusive and accessible for everyone. However, we have some reservations about the Scottish Government’s revised approach, as well as how any current and new approaches are implemented.

Based on the information provided for this call for views, we understand that the revised approach to embedding inclusive communication will include improving training about inclusive communication practices for Scottish Government officials, reviewing existing materials on inclusive communication and Scottish Ministers using their powers to draw public authorities’ attention to materials on inclusive communication.

We do not believe that this revised approach to assisting listed public authorities to embed inclusive communication will make a significant difference. Firstly, we do not believe that simply ‘drawing attention’ to existing guidance is a strong enough step. Inclusive communication requires training and simply signposting to resources will not help create a sufficient understanding of what truly inclusive communication is. Additionally, if the revised approach no longer includes an element of co-production with those with protected characteristics, it is unlikely that approaches will be truly inclusive. We are particularly concerned that if older people are not involved, it risks overlooking how age as a protected characteristic presents unique challenges to inclusive communication, especially when this intersects with other intersectional characteristics.

We still strongly support the need for inclusive communication to be embedded among all public authorities in Scotland. Currently, even when authorities state that they use inclusive communication, this is often not the case. For example, many public authorities may well now publish information in a different language on their website. However, this is still not necessarily inclusive. For example, for older people where English is not their first language, websites are often overly complex, and it can be challenging to find where alternative language options are available or how to request them. So, whilst the option might be there, it is still not inclusive as there are still significant barriers to finding the accessible resource.

Communication is only inclusive if those who access it say it is. For inclusive communication to be embedded, listed public authorities need to take a proactive approach to understand the communication needs of those with protected characteristics. Public authorities must also have a better understanding that the real work for them to embed inclusive communication begins after the communication needs of different groups are identified. We urge that if inclusive communication is to be a new duty, that part of this involves engaging with those with protected characteristics, especially individuals with multiple, overlapping characteristics. This must be an ongoing, iterative process to avoid people once again being used as a tick box exercise. In addition, there needs to be a proactive effort by public authorities to actively seek and engage with people including those in seldom-heard groups and marginalised communities to provide equal opportunities to participate. For those in these seldom-heard groups, the public bodies themselves are hard to reach. People need to be made aware that there is a PSED duty as part of the Equality Act (2010) which protects those with one or more of the protected characteristics. It cannot be assumed that everyone is aware of their rights under the Act and what it truly means.

From our work with ethnic minority older people, we know that one of the areas where inclusive and accessible communication is most critical is in health services. It is often when trying to access these public services that individuals from an ethnic minority background face the greatest challenges. Even if there are versions of resources translated into other languages available on a health services website, this is not inclusive if the way to find and access this resource is difficult. For instance, many public authorities’ websites are increasingly complex and hard to navigate, even for those whose first language is English. This is a key example where there must be more discussion with the recipients of these services to understand what inclusive communication means to them.

We are also aware of examples of emerging good practices around inclusive communication. Social Security Scotland has been carrying out work to ensure their communications are inclusive for everyone, with its website stating it aims to be a leader in inclusive communication. Despite promising efforts, we still believe that there should be more effort to discuss with recipients what inclusive communication means for them. For example, Social Security Scotland has advisors working across Scotland, however, unless this is communicated effectively to those who might face barriers to accessing readily available information, such as older people and/or those from ethnic minority backgrounds, how will they know about this service and how to find advisors. Inclusive communication can only work when those who face barriers can use it to access services with ease and confidence. Of course, this is a hard thing to do well, which is why continual improvement and evaluation is required and needs to be accepted by the whole organisation.

The final aspect concerning inclusive communication which must be given due consideration when embedding this into the PSED is around digital exclusion. Often public authorities will claim that they use inclusive communication but these inclusive resources, such as alternative languages or ordering large print/braille information are all housed online. This can be potentially exclusionary for several groups of people with one or multiple overlapping protected characteristics. For example, 25% of those over 60 in Scotland don’t use the internet, and 68% of those who completed Age Scotland’s Big Survey in 2023 who had internet access said they were not confident in using it.

We are aware that since the COVID-19 Pandemic, there have been different ways of working adopted and developed for all organisations. This has included an increased move to hybrid ways of working as this becomes more attractive for both employees and employers. However, we feel that it is vitally important that functions of public authorities and bodies continue to have a public-facing role that will allow services to be accessed offline, via phone with staffed lines and to allow people to visit offices where required. We know that these are methods in which older people often prefer to access public services, and digital-first approaches often create barriers that are exclusionary to many older people. Furthermore, for this to happen in practice, public authorities must be provided with adequate resourcing so that any additional perceived ‘burden’ of providing truly inclusive communication, including offline options, is avoided as an excuse for inaction.

We do not believe that it is possible to know how effective the Equality and Human Rights Commission (EHRC) are at regulating public authorities’ performance against the PSED as an outside organisation looking in. It appears to be a complex landscape in terms of the EHRC’s role in regulating the PSED in Scotland and we believe that there is a lack of simple to find and understand information. Based on our overall perception that the PSED in Scotland has not resulted in the impact it intended for those with protected characteristics, this would imply that the EHRC can do and should do more to monitor and make listed authorities answerable when they fail to comply with the duty.

We are aware that the EHRC have the authority to issue compliance notices if a listed authority hasn’t complied with the PSED-specific duties. This can then be followed by taking an authority to the Sheriff's Court with an order to comply if necessary. The EHRC states that if enforcement action is taken, a record of this will be published where confidentiality requirements permit this. Whilst we know that there have been some instances of the EHRC using this power, there remains a lack of transparency to find this information easily.

As mentioned throughout this response, we believe that there needs to be stronger accountability mechanisms to ensure that listed public authorities are meeting the aims of the PSED. In particular, that their actions have a tangible, positive impact on those with protected characteristics. Our understanding is there is a lack of sanction on public authorities for not fulfilling the PSED. We believe that having stricter sanctions, for example, financial implications for not fulfilling PSED requirements would help to ensure that listed public authorities understand the importance of equality work and make a concerted effort to eliminate unlawful discrimination. Listed public authorities need to know that inaction will have significant consequences and that they must take a proactive approach to the PSED, rather than viewing it as a simple tick-box exercise.

Finally, concerning the role of the Equality and Human Rights Commission in regulating public authorities’ performance against the PSED, we have concerns about the accessibility of the complaints procedure. It is hard to find out how to make a complaint if you think a listed public authority has not complied with the PSED. Furthermore, for many members of the public, especially those with protected characteristics such as older people or those from ethnic minority backgrounds, it can be daunting to make a complaint. This can come from a place of fear that making a complaint might negatively impact the service they receive.

Often in public sector settings, the complaint investigation focuses on whether the established process had been followed sufficiently, rather than why the process and policies themselves weren’t satisfactory or should have been different. So, if the policy or process has originally been established without proper account for PSED obligations as fully as they should, the outcome of a complaint will rarely meet the expectations of the complainant.

We would urge that as part of the PSED reforms, the Equality and Human Rights Commission looks at improving the accessibility of the complaints procedure, embedding the principles of inclusive communication as discussed above. They could provide more proactive promotion that such routes to feedback exist and the support that may be available to people in navigating the system. In addition, we feel that there should be a change in narrative around the word of complaints which can be associated with a ‘blame’ culture and an “us vs them” narrative.