Understanding Public Sector Duty with Jaqueline Healy
The Public Sector Duty is a statutory obligation where a public body must provide services in a non-discriminatory way, including providing equality of access and protecting human rights for both its users and employees.
What is The Public Sector Equality and Human Rights Duty?
Section 42, of the Irish Human Rights and Equality Commission Act 2014 – Public Bodies: 42 (1) a public body shall in the performance of its functions, have regard to the need to –
a) Eliminate discrimination b) Promote equality and opportunity and treatment of all its staff and the persons to whom it provides services to c) Protect the human rights of its members, staff, and the persons to whom it provides services to.
Why is the Public Sector Duty Important?
It is the state’s responsibility:
- To respect, protect and fulfill human rights, in line with its international commitments
- To be proactive in ensuring that all public bodies are human rights and equality compliant
The Duty, as a catalyst for institutional reform, can play a significant role here:
- It can improve public services, addressing issues such as accessibility so it can meet the needs of everyone
- It can improve workplaces so that everyone’s human rights are respected.
What is a Public Body?
A public body is defined by the Irish Human Rights and Equality Commission (IHREC) as a government department, a state agency, or a local authority. The definition of a Public Body under S2 of the IHREC Act 2014 is broad and includes:
- A Department of State
- A local authority
- the Health Service Executive
- A university or Institute of Technology
- An education and training board
- Any other person, body or organisation established under statute or under any scheme administered by a government minister, excluding the Defense Forces
- A company wholly or partly financed by or on behalf of a government minister, in pursuance of powers conferred by or under another enactment
- A company where the majority shares are by or on behalf of a government minister.
Why do we Need to Look at Public Bodies?
The Irish Government has signed up to a lot of conventions, including the UNCRPD. We must respect, protect and fulfil everyone’s human rights in line with international obligations.
Public bodies must also be proactive in making sure they are human rights and equality compliant.
Public Sector Duty Explained – Animation Script
People in Ireland rely on services provided by Public Bodies, on behalf of the state every day. From colleges and hospitals to libraries and the courts, these services are essential, and it is important that they can be used by everyone. The Public Sector Equality and Human Rights Duty is a legal obligation for Public Bodies, to eliminate discrimination, promote equality of opportunity and protect the human rights of your staff and the people who use your services when carrying out your daily work. It’s a positive obligation that requires you to be proactive, to think about human rights and quality issues in your work and address them before they become a problem. The Duty applies to the whole organisation, including corporate services, procurement, human resources, service provision, research, policy and regulatory functions.
To meet the core requirements of the Duty all Public Bodies must Assess, Address and Report.
First – Assess – carry out an assessment of human rights and equality issues. This assessment must form a part of the strategic or corporate plan, which must be accessible to the public.
The assessment should be based on evidence. Input from staff and people who use their services is key as is using internal and external sources of information and data.
Remember that equality does not always mean treating everyone the same – it is about considering the particular needs of people so that similar outcomes can be achieved.
Certain people or groups of people may be more at risk than others of experiencing discrimination or human rights violations and careful consideration must be given to include these concerns.
Secondly – Address – must set out in strategic or corporate plan the policies, plans and actions to address any issues raised in the assessment. This can include actions that may have been set out under different national strategies or policies or under the public sector reform programme that are related to equality and human rights. All Public Bodies will need to think about positive actions you can take to meet the needs of people at risk and consider reasonable accommodation for disabled people.
Finally – Report – Public Bodies must report annually on its progress and achievements in a manner that is accessible to the public, such as their annual report. Integrating the duty into a strategic plan and annual report means that it is an ongoing obligation that must be monitored, reviewed, and developed in each strategic planning cycle.
The Strategic Planning Cycle
The Public Sector Duty is an ongoing obligation on all Public Bodies, to incorporate its Public Sector Duty as part of their overall strategic planning cycle.
42(2)(a) of the IHREC Act 2014 requires an organisation to set out in its strategic plan an assessment of the human rights and equality issues it believes to be relevant to the functions and purpose of the body and the policies, plans and actions in place or proposed to be put in place to address those issues.
It is important because if it is in a public bodies strategic plan, it’s more likely to happen. For example, if a public body says that they are going to make all its services more accessible, then that goes into their annual plan and becomes part of their daily business.
- Organisational planning / corporate services – strategic planning, budget allocation, procurement, grant funding.
- Human resources – Recruiting staff, HR policies and practices and staff capacity building. In a public body a lot of staff often don’t know about equality and human rights, and this can cause problems when they are providing services to a diverse population. That is why staff training is very important.
- Service provision – Delivery of a service or engagement with key stakeholders. Providing services to different people is also subject to the Public Sector Duty.
- Research and policy
- Regulatory and oversight functions: For example, The Health and Information Quality Authority (HIQA).
HIQA regulates a lot of the Health and Social Care Services in Ireland, and they should do that from an equality and human rights perspective.
A Note on Procurement:
A Public Body cannot avoid their Public Sector Duty by requesting a private body to provide services to the public, the Public Sector Duty still applies. Therefore, the private body has an obligation to eliminate discrimination, promote equality and protect human rights.
The HSE fund private bodies to deliver services to disabled people, but that private body should be still subject to the Public Sector Duty. Once a private body is receiving public funds the Public Sector Duty still applies. However, disability services funded by the HSE is a very grey area and urgently needs addressing.
What is Meant by Procurement?
The state cannot provide all of its services, all of the time. So, they pay organisations and agencies to deliver required services, this is called procurement.
There is a whole office of Government Procurement that oversees this work. An example of procurement would be the National Maternity Hospital; they give a lot of money to a private company to build the hospital.
There was a Public Sector Duty Guidance resource, produced in 2019. It goes through exactly what the Public Sector Duty is and what public bodies must do to comply.
Note – this was sent to the heads of all public bodies, and the head of corporate services in 2019, therefore all public bodies should know about their Public Sector Duty.
Since then, further guidance has been developed and information on this can be found on the IHREC website.
One of the key messages of the resource is consultation. A public body cannot do its Public Sector Duty effectively unless they consult with a diversity of its staff and users.
Note – if there is a public body that you deal with and they have published their Public Sector Duty Assessment and Action Plan, but they haven’t consulted with a disability activist for example, then they have missed an essential part of the process.
Assessment: If you are interested in using the Public Sector Duty in your activism work, the assessment of any Public Body is very important because this is the fundamental step in the process. If a Public Body does not complete an assessment, they cannot have actions and if they don’t have actions they can’t report.
Stages for Conducting a Human Rights and Equality Assessment –
- Identifying human rights and equality issues
- Identifying structures and initiatives in place to support human rights and equality
- Prioritising areas for action
An Evidence Based Assessment:
- Consultation with staff and users
- Use data from the Central Statistics Office
- Use reports and research from the Economic and Social Research Institute (ESRI) and IHREC
- Use cases taken to Workplace Relations Commission under employment equality and equal status legislation
- Use civil society organisations reports/submissions
Consultation and the Role of Civil Society in Supporting the Implementation of the Public Sector Duty
Key messages to public bodies:
- Consult with users and staff at each of the three stages of assess, address and report in a timely way – strategic planning cycle
- Inclusive consultation with all identified groups – ten grounds and persons at risk of poverty and social exclusion
- Invite groups to give feedback on draft assessments, draft action plans and draft report on progress and achievements – evidence based.
Note – one of the things Public Bodies should be investing in is training. If public bodies had training around the social model of disability, training around Ireland’s national and international commitments under the Disability Act and the UNCRPD, this would lead to better outcomes, and better services.
The UNCRPD committee is due to visit Ireland this year to access where Ireland is in relation to its commitments. When Public Bodies are drawing up their budgets, they must have regard to the Public Sector Duty. They need to consult with disabled people’s organisations to see where the money is most needed.
Example of The Public Sector Duty, Section 42, being implemented:
Community Action Network Pilot – CAN
CAN (social justice NGO) was funded to facilitate a drugs service users working group. The groups aim was to identify any human rights issues that affected them when accessing HSE drugs treatment services.
CAN used a grassroots approach to implementing Section 42 of the Public Sector Duty and encouraged the group to present their issues to the relevant public bodies. The Service Users Rights in Action Group (SURIAG, made up of HSE drug user service’s) and IHREC worked with CAN to facilitate the group to present their issues to the HSE, which helped the HSE to access its human rights duty under Section 42 of the assessment process.
The project steering group held dialogue events, conducted service-user led research through interviews with other service-users, they then compiled a report on the issues identified and met with Department of Health and HSE officials – launched “Our Life, Our Voice, Our Say” in April 2018 – see – Implementing the Duty: Pilot Case Studies
More About the Public Sector Duty
It is a positive and proactive duty, so instead of a Public Body waiting for somebody to complain, or to bring a case against them, they need to proactively look at what needs addressing in relation to eliminating discrimination and protecting the human rights of their staff and users. Disabled people need to use their right to inform Public Bodies about their Public Sector Duty to provide better services.
A lot of work still needs to be done in relation to public bodies protecting, respecting, and fulfilling the human rights of disabled people.
There is a feeling that some Public Bodies can be quite good but some need to do more work. Some feedback: They do it in a superficial, wishy washy kind of way. It’s tokenistic. It’s nice to have but there’s no enforcement. A lot of Public Bodies don’t understand what equality is for disabled people or what our rights are.
Discussion: Resources should be available for us under the UN Convention, it is very hard for people to exercise their rights under the convention if they don’t have the basic resources to support them to live like everybody else.
The HSE needs to make sure that agencies who are providing services on their behalf are eliminating discrimination, promoting equality of opportunity, and protecting the human rights of disabled people. Unfortunately, the HSE is one of the agencies that still haven’t done their Public Sector Duty. They have said that they are looking at their procurement but it’s still a piece of work that needs to be done. It is important for us as activists to be aware that when agencies receive public money, that they need to be having regard to the Public Sector Duty under Section 42.
Question – How can we influence the HSE to proactively engage in the Public Sector Duty? Firstly, we need to find out have the HSE integrated the Duty into their procurement processes, because if the HSE haven’t done that, then the relevant agencies working for the HSE can say they don’t know about it because it wasn’t in their contract.
IHREC has the Public Sector Duty integrated into their procurement as they need to be demonstrating best practice.
Note – Once the HSE has integrated the Public Sector Duty into its procurement process, then we can approach the relevant agencies and tell them – you should have regard to the need to eliminate discrimination, to promote equality of opportunity and to protect human rights.
Question – Do IHREC have a Legal Mandate to Question Public Bodies
Yes, they do, if an organisation is not doing their Public Sector Duty, we can ask them why and encourage them to do it.
There is a Public Sector Duty in England, different groups have used the Public Sector Duty to bring cases to court. This is called a judicial review; for example, a Public Body may make a decision that affects a particular group, that group may say the decision was made without having regard to the Public Sector Duty, the court can declare that the Public Body didn’t consider their Public Sector Duty before they made their decision, and the court can strike down their decision because the public body didn’t have regard for the Duty. This has happened in quite a number of cases in the UK.
This could be used in Ireland; it hasn’t been used yet, but it could be. This is interesting for disabled people and their organisations to know about, as we (disabled people) may come across cases where the HSE has developed a policy or a service or takes away a policy or a service which is in conflict with their Public Sector Duty – if we think that this has happened get in touch with IHREC – dialogue is always best before taking a case to court.
Note – There is probably going to be a tenth ground added to the nine grounds of discrimination – Socio Economic Status. IHREC are advising public bodies to take this into account if they are doing an assessment.
A review is taking place in Government at present, the Minister has asked different groups – what needs to change in our Equality Legislation. Submissions are being reviewed and towards the end of the year the Minister will publish what changes they are going to make.
Group Activity and Discussion
- What are the human rights and equality issues for disabled people in relation to this public body and the actions needed to address these issues?
- How will you communicate these issues to the public body so that they take your concerns into account too, and implementing their public sector duty?
Remember, the Duty applies to staff, its users and it applies across all the functions of a Public Body.
Group 1. Health Service Executive (HSE)
- The right to equal access isn’t same for everyone. It depends on where you live and on its population. Often people skip queues because their politicians can help
- Public / private access is an issue. A lot of people are falling between the cracks, especially in child to adult services, there is no central place or transition space
- Disabled people can often find themselves in older people’s services, and so they are not going to get the required service
- The HSE is not providing a rights-based approach to any service, they are outsourcing support services to agencies and those agencies are working in a medical model, and the charity model approach. Ways to correct this would be more direct payments to cut agencies out as they are not providing a value for money quality service to most disabled people. An integrated care and multidisciplinary team approach should be used, we (disabled people) should be part of our healthcare decision making service because a lot of decisions are made about us behind closed doors
- There is a lot of wasted time, systems are ineffective. They are complacent and we are not part of the conversation
- The lack of integrated healthcare records leads to layers of bureaucracy that we must deal with every time we apply for something.
How can we voice our concerns?
- The complaints process is complicated and there is a six-phase process, so it’s not the easiest way to complain
- We can also write to the Minister for Health/Disability
Advice – Jaqueline suggested that complaints or issues should be communicated to the head of the HSE and also to the Department of Health because sometimes issues can fall between the two and we should make sure that they get through to the minister and the Secretary General of the Department of Health.
When making a complaint, frame it in relation to the Statutory Obligation of the Public Sector Duty – makes it stronger, and always look for a meeting.
Group 2: The Department of Transport
- The public transport system is inaccessible for a lot of disabled people, e.g., take Irish Rail, if you are a wheelchair user, you must call 48 hours ahead to book your journey, there is no such thing as spontaneity
- We can’t just decide to meet friends in town because transport is unreliable. 90% of Bus Eireann buses are inaccessible for wheelchair users – using buses at pick times can be a nightmare
- Going forward, legislation should say that all new buses or trains should be accessible. The Luas is accessible, this should be the standard
- We can’t be independent if we’re relying on a train driver or someone in the station to help us. How are buses legally allowed on the road if they are inaccessible?
How can we voice our concerns?
- We can communicate this to the Department through the establishment of service-user consultative group, having representative forums, a group could get together and write to the minister raising the Duty and their statutory obligation
- We should query how funds are being spent
- Recently Dublin Bus bought new stock, which is inaccessible, ILMI made a complaint about public funds being spent on inaccessible vehicles. There is no excuse in 2022 for spending money on inaccessible stock.
Group 3: Local Authorities
- A local council has stopped providing printing materials to local councillors, it is now difficult to access these materials
- This could be a challenge for disabled people who wish to enter politics.
How can we voice our concerns?
- This issue could be raised by councillors attending meetings, we could go to the chief executive of Dublin City Council. Everything in government is digital first, the problem with this is they are not taking account of the particular needs and circumstances of all people. Reason given for stopping the service was cost, but Councillors still submit receipts, and the council reimburses them therefore there is no real saving.