Integrated care boards, NHS trusts and foundation trusts and other NHS organisations should use this document to inform action to meet their legal duties on health inequalities and equalities.

This reference document replaces ‘Guidance for NHS commissioners on equality and health inequalities legal duties’ (2015). Any future updates will be clearly marked and communicated as appropriate.

Purpose of this reference document

This reference document informs integrated care boards (ICBs) and NHS trusts and foundation trusts about the equality and health inequalities legal duties they must meet following changes introduced by the Health and Care Act 2022.

It may also be useful to other NHS organisations in meeting their duties, and NHS England when considering how ICBs and others should be meeting their health inequality and equalities duties.

It provides information on:

• Health inequalities duties – in the NHS Act 2006 (as amended, including by the Health and Care Act 2022). There is a specific focus on section 13G of the NHS Act 2006 (Section B).
• Equality duties – the Equality Act 2010 Public Sector Equality Duty (PSED) and the associated Specific Equality Duties (SEDs) and associated information (Section C).
• Further resources and tools (Section D).

Related statutory obligations about information on inequalities

To meet their health inequalities duties, ICBs and NHS trusts and foundation trusts must take account of the separate statutory Statement on Information on Health Inequalities (the Statement) issued by NHS England further to s13SA of the NHS Act 2006.

NHS England has welcomed and considered informal advice from the Equality and Human Rights Commission (EHRC) on section C of this briefing, the equality duties. NHS England encourages readers to access the EHRC’s technical guidance on the public sector equality duty (PSED) for detailed guidance and case studies from the EHRC.

The EHRC is of course the regulatory body for the PSED and specific equality duties (SEDs).

Section A: Introduction

1. Context

1.1. All parts of the NHS have a role to play in addressing equality and health inequalities to create high quality care for all; as commissioners or providers, as employers and as local and national system leaders.

1.2. This reference document informs ICBs and NHS trusts and foundation trusts about their legal duties in respect of equality and health inequalities, following changes introduced by the Health and Care Act 2022. NHS England has a statutory duty to conduct an annual assessment of ICBs including the extent to which they have fulfilled their statutory obligations regarding health inequalities. Therefore, this document may also be a useful reference for NHS England and other bodies who work with ICBs and NHS trusts and foundation trusts and may benefit from understanding the duties on them.

1.3. NHS England first issued guidance for commissioners on equality and health inequalities in 2014 and updated this in 2015. The Health and Care Act 2022 established ICBs and extended duties on health inequalities in the NHS Act 2006. This reference document replaces the previous guidance to reflect changes to legislation and NHS structures.

1.4. To meet their health inequalities duties, ICBs and NHS trusts and foundation trusts must take account of the separate statutory Statement on Information on Health Inequalities (the Statement) issued by NHS England further to s13SA of the NHS Act 2006.

1.5. Further information on health inequalities and equality including practical focused tools and resources can be found on NHS England’s webpages and links to key resources are contained in Section D.

2. About this reference document

2.1 This document covers two key related but separate sets of duties: core duties on health inequalities and statutory duties concerning equality. The two sets of duties require informed consideration by decision-makers. Although there is synergy between some aspects of the two sets of duties, it is important to appreciate that they are distinct. Both sets of duties may need to be considered substantively as part of decision-making and the arrangement and delivery of services.

2.2 Duties on health inequalities and equalities primarily come from:

• NHS legislation, such as the NHS Act 2006 as amended by the Health and Social Care Act 2012 and Health and Care Act 2022
• the Equality Act 2010 and its associated statutory regulations.

2.3 This reference document may be used by NHS bodies as well as other relevant stakeholders to help them understand:

• the legal duties in relation to equality and to reducing health inequalities, as set out in the relevant legislation
• how to fulfil these duties in their work to improve health outcomes and the experiences of patients, communities and the workforce
• how the two separate sets of legal duties can intersect to advance equality, and the key differences between the duties.

2.4 This document covers:

• Section B: Health inequalities duties – the health inequalities duties in the NHS Act 2006 (as amended by the Health and Care Act 2022). There is a specific focus on section 13G of the NHS Act 2006.
• Section C: Equality duties – the Equality Act 2010 Public Sector Equality Duty (PSED) and the associated Specific Equality Duties (SEDs) and associated information.
• Section D: further resources, practical tools and information.

2.5 This document is non-statutory and is not legally binding although requirements in the legislative frameworks referred to include a range of legal obligations. It is NHS England’s policy that it and other NHS bodies must as a minimum meet their legal obligations under the Equality Act 2010, including the PSED and duties relating to health inequalities following changes introduced by the Health and Care Act 2022.

2.6 Throughout the development of this document, we have:

• Given regard, in exercising our functions, to the need to reduce inequalities between people in access to and outcomes for patients from healthcare services, and to ensure services are provided in an integrated way where this might reduce health inequalities.
• Given due regard, in exercising our functions, to the need to eliminate discrimination, harassment and victimisation, to advance equality of opportunity, and to foster good relations between people who share a relevant protected characteristic (as cited under the Equality Act 2010) and those who do not share it.

3. Taking the right approach to meeting the legal duties

3.1 While NHS organisations must meet their health inequalities and equality duties, it is essential that this is more than a ‘tick box’ exercise and not an afterthought:

• There are strong links between health inequalities and equality issues, with groups that share protected characteristics as set out in the Equality Act 2010 frequently experiencing higher levels of health inequalities. It is therefore essential when considering health inequalities to consider equalities and vice versa, while in both cases recognising this is not the whole picture. In relation to health inequalities this includes considering factors that are not protected characteristics including socio-economic deprivation. Further information is contained in part 6: Which groups are covered by the NHS’s legal duties on health inequalities?
• Advancing equality and addressing health inequalities are at the heart of the NHS Constitution values. Addressing equality and health inequalities should be at the heart of NHS leadership.
• To enable proper and timely consideration of the issues and continuous improvement, tackling inequalities and advancing equality should be embedded in all stages of the design and delivery of healthcare services.

Section B: Health inequalities duties

4. What are health inequalities and why address them?

4.1 NHS England and ICBs are required, as a matter of law, to take account of reducing health inequalities in the exercise of their functions. There are also social, ethical and economic reasons to address health inequalities. Health inequalities are systemic, unfair and avoidable differences in health status between different groups of people. A person’s prospects of enjoying good health and a long life are often determined by the social and economic conditions and circumstances in which they are born, grow, work, live and age. These conditions also affect the way in which people are able to look after their own health and use NHS services throughout their life. For example, in some cases, outcomes from NHS services have been shown to be worse for people from a particular minority ethnic group, disabled people, people with multiple health conditions or older people. Other outcomes have also been shown to be worse for people living in deprived communities and other inclusion health groups. Addressing avoidable inequalities and moving towards a fairer distribution of good health requires a life course approach and action across the whole of society, including through the NHS.

4.2 The World Health Organization highlights the importance of monitoring health inequalities to provide evidence on who is being left behind, and inform health policies, programmes and practices that aim to close gaps; and points to clear evidence that reducing health inequalities improves life expectancy and reduces disability across the social gradient. Tackling health inequalities is therefore core to improving access to services, health outcomes, quality of services and the experiences of people and communities.

4.3 The NHS Constitution states that the NHS has a duty to “…pay particular attention to groups or sections of society where improvements in health and life expectancy are not keeping pace with the rest of the population”. This is reflected in the NHS Act 2006 (as amended by the Health and Care Act 2022), which includes legal duties on NHS England and ICBs to have regard to health inequalities in the exercise of their functions.

4.4 Legislative provisions have been introduced that explicitly seek to address health inequalities, including key legal duties to tackle health inequalities. To achieve this, consideration should be given to communities with protected characteristics as defined by the Equality Act 2010 (see Section C), other communities that may experience health inequalities including socio-economically deprived groups, and the intersection of characteristics. Further information on population groups is contained in part 6: Which groups are covered by the NHS’s legal duties on health inequalities?

5. What are the legal duties on health inequalities?

5.1 Changes arising from the Health and Care Act 2022 established ICBs and extended legal duties on reducing and tackling health inequalities.

5.2 NHS commissioners (NHS England and ICBs) are under specific legal duties to take account of health inequalities issues in the exercise of their functions. Aspects of the legal regime that applies to NHS providers also include requirements to consider health inequalities. The key legal duties are set out in Table 1.

5.3 NHS England may use its oversight and system management powers to help ensure that other NHS organisations are discharging their duties as described in this guidance.

Table 1: Overview of legal duties on health inequalities by type of NHS body under the NHS Act 2006*

* Legally, many of the changes in the Health and Care Act 2022 amend the NHS Act 2006, where the core legal duties on NHS England, ICBs and NHS trusts and foundation trusts are set out.

† Providers are also required to ensure care is safe, effective, caring, well-led and responsive under CQC requirements.

Statutory duties on NHS England

5.4 In respect of health inequalities, NHS England has specific legal duties under the NHS Act 2006 to:

• have regard to the need to reduce inequalities between persons in access to health services, and the outcomes achieved for patients
  • the outcomes achieved include patient experience and the effectiveness and quality of services (s13G, s13E)
  • please note: amendments through the Health and Care Act 2022 introduced the word ‘persons’ to the duty, which means that people who are not existing patients also need to be considered as part of the discharge of the duty to have regard to the needs to reduce inequalities of access
  • further information on this is contained in part 7: ‘Persons’ and access to healthcare services
• exercise its functions with a view to securing continuous improvement in the quality of services provided to individuals for or in connection with the prevention, diagnosis or treatment of illness or the protection or improvement of public health
  • In particular, acting with a view to securing continuous improvement in outcomes, including effectiveness, safety and patient experience, and in respect of outcomes related to health inequalities (s13E).
• act with a view to ensuring that health services are provided in an integrated way, and that they are integrated with health-related and social care services, where it considers that this would reduce inequalities in access to those services or reduce inequalities in the outcomes achieved and improve quality (s13N)
• have regard to all likely effects of decisions in relation to the health and wellbeing of people and the quality of services provided to individuals including in relation to inequalities (s13NA)
  • this is also known as the ‘triple aim’ and is further discussed here in part 11: The ‘triple aim’
• include, in an annual business plan, an explanation of how it proposes to discharge its duty to have regard to the need to reduce inequalities (s13T)
• include, in an annual report, an assessment of how effectively it discharged its duty to have regard to the need to reduce inequalities (s13U)
• conduct an annual performance assessment of ICBs, including an assessment of how well each ICB has discharged its duty to have regard to the need to reduce inequalities, and publish a summary of the result (s14Z59).

5.5 In addition, NHS England must publish a statement about information on inequalities describing the powers available to relevant NHS bodies to collect, analyse and publish information relating to inequalities, and its views about how those powers should be exercised (s13SA). Obtaining, using and publishing inequalities-related information is a key component of working to understand and reduce inequalities. ‘Relevant NHS bodies’ for these purposes are ICBs, NHS trusts and foundation trusts.

Statutory duties on ICBs

5.6 ICB specific legal duties in relation to health inequalities include obligations to:

• have due regard to the need to reduce inequalities between persons in access to health services, and the outcomes achieved for patients
  • the outcomes achieved include patient experience and the effectiveness and quality of services (s14Z34 and s14Z35)
• exercise functions with a view to securing continuous improvement in the quality of services provided to individuals or in connection with the prevention, diagnosis or treatment of illness
  • in particular, acting with a view to securing continuous improvement in outcomes including effectiveness, safety and patient experience, and in respect of outcomes related to health inequalities (s14Z34)
• have a view to ensuring that health services are provided in an integrated way, and that they are integrated with health-related and social care services, where it considers that this would reduce inequalities in access to those services or reduce inequalities in the outcomes achieved and improve quality (s14Z42)
• have regard to all likely effects of decisions in relation to the health and wellbeing of people and the quality of services provided to individuals including in relation to inequalities (s14Z43)
  • this is also known as the ‘triple aim’ and is further discussed in part 11: The ‘triple aim’
• include, in a joint forward plan, an explanation of how they propose to discharge their duty to have regard to the need to reduce inequalities (s14Z52), as well as specifically addressing what steps will be taken for children and young people aged under 25, and the particular needs of victims of abuse (see part 6: Which groups are covered by the NHS’s legal duties on health inequalities?)
  • NHS England has published guidance on developing and updating joint forward plans, which includes content on addressing health inequalities in the development of the plan
• include, in an annual report, an assessment of how effectively it discharged its duty to have regard to the need to reduce inequalities (s14Z58), and specifically including a review of the extent to which the ICB has exercised its functions consistently with NHS England’s views set out in the Statement published under section 13SA(1)

Statutory duties on NHS trusts

5.7 NHS trusts have duties to:

• have regard to all likely effects of decisions in relation to the health and wellbeing of people and the quality of services provided to individuals including in relation to inequalities (s26A). This is the ‘triple aim’ discussed in part 11: The ‘triple aim’
• publish an annual report including a review related to information on inequalities, describing the extent to which the NHS trust has exercised its functions consistently with NHS England’s views set out in the latest Statement on information about inequalities issued under s13SA of the NHS Act 2006 (Schedule 4, paragraph 12, sub-paragraph 1B).

5.8 As part of integrated care systems (ICSs), NHS trusts need to work with their ICB to prepare a joint forward plan setting out how they propose to exercise their functions in the next 5 years (s14Z52).

Statutory duties on NHS foundation trusts

5.9 NHS foundation trusts have duties to:

• have regard to all likely effects of decisions in relation to the health and wellbeing of people and the quality of services provided to individuals including in relation to inequalities (s63A). This is the ‘triple aim’ discussed in part 11: The ‘triple aim’.
• publish an annual report including a review related to information on inequalities, describing the extent to which the NHS foundation trust has exercised its functions consistently with NHS England’s views set out in the latest Statement on information about inequalities (Schedule 7, paragraph 26, 1B).

5.10 As part of ICSs, NHS foundation trusts need to work with their ICB to prepare a joint forward plan setting out how they propose to exercise their functions in the next 5 years (s14Z52).

Local authorities and health inequalities

5.11 While there is no definitive, single duty on local authorities about health inequalities, action on health may feature in a wide range of activities undertaken by a local authority, from public health, to planning, to social care and children’s services. Different ‘tiers’ and geographies of local authority will determine what duties they are under, and key duties that NHS bodies should be aware of in their work with systems are set out below.

5.12 The overarching duties on all local authorities and other contracting authorities include:

• the PSED and the SEDs
• duties to seek to improve the economic, social and environmental wellbeing of the relevant area when undertaking procurements under the Public Services (Social Value) Act 2012 (Social Value also features in decision-making criteria under the new Provider Selection Regime)

5.13 For different tiers of local government, powers, duties and responsibilities include:

• arranging public health services, including a wide-ranging duty to take such steps appropriate for improving the health of the people in its area and arranging certain child health services (s2B and Schedule 1 of the NHS Act 2006)
• joint duties to develop health and wellbeing strategies
• duties to have regard to a local plan when making planning decisions, with health issues being a component of this (under s19 of the Planning and Compulsory Purchase Act 2004)
• duties to improve the wellbeing of young children in its area and reduce inequalities between young children in its area in relation to matters relating to their wellbeing (s1 of the Childcare Act 2006)
• duties under the Care Act 2014 to provide or arrange for the provision of services, facilities or resources, or take other steps, which it considers will contribute towards preventing or delaying the development by adults and carers in its area of needs for care and support, and to have regard to the need to improve the quality of care and support for adults and support for carers provided in the authority’s area (including the outcomes that are achieved from such provision)
• duties of local housing authorities, in discharging their duties under s8 of the Housing Act 1985, to consider housing conditions in their district and the needs of their district with respect to the provision of further housing accommodation, in particular with regard to the special needs of chronically sick or disabled persons (under the Chronically Sick and Disabled Persons Act 1970)
• duties of the Mayor of London to produce a health inequalities strategy under s309E of the Greater London Authority Act 1999, and a duty to have regard to that strategy and inequalities issues when exercising functions under s30 of that Act

5.14 Awareness of the functions of local government may be beneficial for NHS organisations working in ICS arrangements or considering partnership working under s75 of the NHS Act 2006.

6. Which groups are covered by the NHS’s legal duties on health inequalities?

6.1 The relevant legal provisions set out above do not specifically define a list of groups or people who should be considered in relation to the health inequalities duties described above. Some other sections of the legislation do refer to the particular needs of specific service areas and groups; for instance, children and young people, and victims of abuse are specifically referenced in the ‘joint forward plan’ duty in s14Z52.

6.2 In other words, any group experiencing health inequalities is covered, and the duties therefore take a whole population approach. This means that NHS England and ICBs need to take account of the whole of the population for which they are responsible and look to identify inequalities within that population. As described in part 7: ‘Persons’ and access to healthcare services, people who are not patients also need to be considered – that means people who may struggle to access services or register with a GP, including people from inclusion health groups.

6.3 People do not have identical needs for healthcare services and will have differing abilities to access services. The outcomes from services will vary for a wide range of reasons. It is possible to identify certain groups that are more likely to experience health inequalities generally, but inequalities in access and outcomes may be experienced at different levels within the health service. Necessarily there can be an overlap between some population stratifications or ‘lenses’ for the purposes of understanding and addressing health inequalities on the one hand and protected characteristics for the purposes of the Equality Act 2010 on the other, but this overlap is not absolute. The examples below seek to illustrate this point:

• A key difference is that health needs generally vary according to age and sex. In particular, children and young people and older people, who are not evenly distributed around the country, typically have higher or more specific needs for health services than other age groups. Generally, women, as they typically live longer than men, and are those who have children, have higher lifetime healthcare needs, but the picture is not uniform. For instance, women in their 30s have greater need for general and acute health services than men of the same age, while men aged 85 and over have greater need for these services than is higher women of the same age. [See for instance NHS England (January 2019), Equality and Health Inequalities Analysis For 2019-20 to 2023-24 revenue allocations to Clinical Commissioning Groups]
• The populations of areas with greater socio-economic disadvantage typically have poorer health after accounting for age, and higher healthcare needs. Low health literacy is generally more prevalent in these areas.
• Social determinants (such as poverty and income, education, employment, environment and housing, which are not ‘protected characteristics’ for the purposes of the Equality Act 2010) affect people’s health across their lives, with the early years being a particularly important stage of life at which poor socio-economic circumstances have lasting effects.
• Disabled people, including people with mental health problems, are likely to find access to health services more difficult, and generally have poorer health than non-disabled people.
• People from most ethnic minority communities are more likely to be detained under the Mental Health Act 1983 than white people. Ethnic minority patients also experience greater inequalities relating to experiences and outcomes of detention. Furthermore, for some ethnic minority groups, persistent and serious health inequalities in access and outcomes, have been identified; for example, in relation to cancer, maternity services, mortality rates for people with a learning disability and autistic people.
• Transgender people are more likely than the general population to experience long-term health conditions, including mental health problems, dementia and learning disabilities, and to be autistic.
• Health behaviours such as smoking, alcohol consumption, diet and physical activity all affect an individual’s health and are socially patterned.
• People living in remote, rural, coastal or island locations are more likely to face barriers to accessing health services, but the picture for health outcomes is more complex. The cost of providing services is generally higher in these areas.

6.4 Local NHS organisations will need to look to understand their population’s particular needs, opportunities and challenges, and prioritise accordingly.

7. ‘Persons’ and access to healthcare services

7.1 Legislative changes made in 2022 to the s13G and s14Z35 duties, described above, respectively require NHS England and ICBs to consider inequalities issues in access to healthcare for ‘persons’ in the population as a whole (including those who may not be in contact with services or who face barriers to access such as digital exclusion) rather than simply considering access to healthcare for existing patients. This means consideration extends to those ‘persons’ who are not currently engaged in services, for instance because:

1. people do not currently have a health need, but are likely to develop one – for example, if a population is known to be ageing and likely to develop a need for services in the future, an ‘anticipatory’ duty may be created by the reference to ‘persons’ rather than ‘patients’
2. people are currently unable to access services because of a lack of consistent availability, and therefore technically are not ‘patients’ – for instance, in some areas it may be more difficult to join an NHS dentist’s patient list; those who are not on a list are not ‘patients’ because they are unable to access services
3. people are not engaged with health services for other reasons (for instance, evidence suggests that individuals who are homeless, are from Gypsy, Roma or Traveller communities or asylum seekers might find it harder to get access to GP services, make appointments or get prescriptions and some people some people may experience issues with accessing community language translation and interpretation (CLTI) services)

8. What is meant by “…have regard to…” in statutory duties relating to health inequalities?

8.1 NHS England’s and ICBs’ responsibilities to “have regard to the need to reduce” health inequalities means that achievement of positive changes or outcomes and tackle inequalities must be properly and seriously considered when making decisions or exercising functions. “Having regard” means that health inequalities issues do not need to be the determinative factor and they can be balanced against countervailing factors as part of multi-aspect decision-making.

8.2 As with duties under the Equality Act 2010, case law has identified that part of “having (due) regard” includes accurate record keeping of how the need to reduce health inequalities has been taken into account when making decisions or exercising functions. The case law in relation to the Equality Act is extensive and further information is provided in Section C of this guidance. Health inequalities duties should be exercised with rigour and an open mind and should not just be an afterthought in the process of reaching a decision.

8.3 As a matter of good practice, and in light of relevant case law, the body or person subject to the duty should be able to demonstrate:

• that they are fully aware of the duty
• how the duty has been considered during the appropriate stages of work, from the beginning of the decision-making process and throughout
• that the appropriate amount of weight has been given to factors that would reduce health inequalities in the decision-making process
• that they have actively considered whether integration would reduce inequalities and acted with a view to securing such integration where it would do so
• that accurate records have been kept to show that the need to reduce health inequalities was taken into account throughout decision-making processes.

9. Putting health inequalities duties into practice

9.1 To comply with the legislation, NHS England and ICBs will need to ensure the specific requirements (for instance, producing objectives, reports and statements) are met. Alongside this, they need consistently to have regard to the need to reduce inequalities when exercising their functions and consider the wider effects of decisions on inequalities. This is likely to involve:

• establishing an evidence base including the use of data and identifying where there may be inequalities in how services are arranged or experienced by patients (see the Statement issued under s13SA for more information on using data to establish evidence)
• identifying roles and resources (internally and externally) to look at health inequalities issues; this may be through specific programmes of work or integrated into wider workstreams, or both
• working with a range of stakeholders to build a complete picture of needs and experiences
• analysing the potential impacts of decisions on inequalities as part of all decision-making processes and keeping a record of such processes
• looking at which dimensions of inequality are relevant to the issue at hand, and taking account of how inequalities could be reduced
• identifying inequalities in access, experience and outcomes across care pathways, especially where there are differences in the effectiveness of services, the safety of services or the quality of patient’s experiences
• setting and ensuring the delivery of quality improvement objectives that address inequalities identified
• considering opportunities to integrate organisations, functions or services across health, social care and health-related services (such as housing or education) where this would help tackle inequalities experienced by certain groups
• learning from past cases, and comparative work within and between different populations and services
• treating health inequalities issues as an ongoing area of work that forms part of everything an NHS body does, rather than a tick box exercise

The Healthcare Inequalities Improvement Planning Matrix provides a framework to guide decision-making. It outlines key areas for consideration when services are designed, implemented and evaluated. The NHS Framework for Action on Digital Inclusion can also be used to help ensure that digital approaches and technologies are designed and implemented inclusively, and are complementary to non-digital support.

9.2 There are strong links between addressing health inequalities and equalities and meeting the requirements in the Equality Act 2010, the PSED and the SEDs. Evidence has identified that some groups of people who share protected characteristics also experience inequalities of healthcare access, outcomes and experience. It is therefore essential to consider equality issues, by reference to protected characteristics, when considering health inequalities and vice versa. This means that where there are inequalities by reference to protected characteristics, consideration must be given to the PSED and the wider Equality Act 2010. It is also crucial to recognise that groups that experience health inequalities are not limited to those groups or protected characteristics covered by the Equality Act and the PSED, and groups that experience health inequalities or other factors that contribute to health inequalities need to be considered.

9.3 Information, tools and resources on putting health inequalities into practice can be found on NHS England’s webpages and links to key resources are contained in Section D.

9.4 Other issues that NHS commissioners should routinely consider include:

• How local communities’ experiences of the NHS influence future action?
• Has action been taken to ensure all staff are aware of the duties?
• Is there clear accountability for the duties at a sufficiently senior level? 
• Is there clear communication to ensure the duties are being applied?
• Is the approach being taken evidence-based?
• Are inequalities in access and outcomes being routinely monitored?
• Have records and evidence of compliance with the duties been kept?

10. Failure to meet the legal duties: what is the risk of challenge?

10.1 Failure to address health inequalities may perpetuate or exacerbate inequality for patients who are currently served less well by the NHS. Providing good quality services and reducing inequalities particularly in prevention and screening will enhance patient experience and reduce burden on the NHS.

10.2 Failure to address health inequality duties may also affect Care Quality Commission (CQC) ratings.

10.3 Legally, NHS commissioners could be challenged in several ways on whether the duties have been complied with, including through judicial review (this risk of challenge also applies to Equality Act considerations, described in Section C).

10.4 A judicial review will test whether a decision was lawful and give a judgment on whether the duty has been complied with. It is likely to rely on evidence including primary documentation, effective governance processes and risk management when reaching a decision.

10.5 Robust processes and documentation of compliance with the duty therefore helps mitigate the risk of successful challenge.

10.6 Alongside the direct risk of legal challenge, failure to show sufficient consideration of health inequalities may manifest as a specific complaint about NHS services, or more generally undermine trust and confidence in the NHS, and attract criticism of policies or decisions.

11. The ‘triple aim’

11.1 In making decisions about the exercise of their functions beyond individual treatment decisions, NHS England, ICBs and NHS trusts and foundation trusts (which are defined as ‘relevant bodies’ in the legislation) must have regard to all likely effects of the decision in relation to:

1. the health and wellbeing of the people of England
2. the quality of services provided to individuals by relevant bodies, or further to arrangements made by relevant bodies, for the prevention, diagnosis or treatment of illness, as part of the health service in England
3. efficiency and sustainability in relation to the use of resources by other relevant bodies for the purposes of the health service in England.

11.2 The 3 considerations above are known as the ‘triple aim’. The legislation goes on to state that, as regards inequalities:

1. The reference to “effects of a decision in relation to the health and wellbeing of the people of England” includes its effects in relation to inequalities between the people of England with respect to their health and wellbeing.
2. The reference to “effects of a decision in relation to the quality of services provided to individuals” includes a reference to its effects in relation to inequalities between individuals with respect to the benefits that they can obtain from those services.

11.3 Accordingly, consideration of inequalities issues forms part of having regard to the triple aim.

11.4 ‘Wellbeing’ is not defined in the NHS Act 2006, and so a common-sense approach to its definition should be taken. In other legislation, wellbeing at an individual level includes:

• personal dignity (including treatment of the individual with respect)
• physical and mental health and emotional wellbeing
• protection from abuse and neglect
• control by the individual over their day-to-day life (including over care and support provided to the individual and the way in which it is provided)
• participation in work, education, training or recreation
• social and economic wellbeing
• domestic, family and personal relationships
• suitability of living accommodation
• enabling an individual’s contribution to society (see s1 of the Care Act 2014)

11.5 The statutory reference to ‘England’ means that ‘relevant bodies’ may need to look more widely than their own geographical area as part of discharging the duty. For instance, if a decision were likely to have a particular impact on a community in the neighbouring local authority area, this could be a relevant consideration for the purposes of the triple aim.

Section C: Equality duties

12. About this section

12.1 Before focusing on the Equality Act 2010, some other key domestic legislation that addresses aspects of individual rights and/or specific groups is referenced. There is the Human Rights Act 1998 and wide-ranging domestic legislation, statutory regulations and guidance in relation to children and their rights. There is also the Autism Act 2009 (see also the Not Enough campaign from the National Autistic Society.) For those interested in UN conventions, and covenants, the Equality and Human Rights Commission (EHRC) is the body that monitors the UK’s compliance with the seven United Nations human rights treaties, which the UK has agreed to follow. Information on the UK’s compliance can be located on the EHRC website.

12.2 The Equality Act 2010 represents the culmination of years of debate about how to improve British equality law. It offers individuals stronger protection against discrimination than previous provisions. The Act also gives organisations greater clarity about their responsibilities and sets an expectation that public services must treat everyone with dignity and respect.

12.3 This reference document overviews key provisions in the Equality Act 2010 on:

• unlawful discrimination
• reasonable adjustments
• positive action
• the Public Sector Equality Duty (PSED)

It also overviews:

• the Specific Equality Duties (SEDs)
• important case law principles
• information about the EHRC and some key statutory and non-statutory guidance

For those who want to know how these terms are defined, the EHRC Technical guidance provides a helpful glossary.

12.4 Although the PSED (s149) and general health inequalities duties (s13G) are parts of separate legislative frameworks, it is possible for NHS and other organisations to take steps to address both sets of duties simultaneously, and by doing so both advance equality of opportunity and reduce health inequalities. Some examples have been provided in this section of this document.

12.5 It is also important for NHS England, ICBs, NHS trusts and foundation trusts, and other organisations, to recognise the value to advancing equality and addressing inequalities of involving, listening to and working in partnership with diverse communities and individuals. Involvement and such partnership working are central to identifying how best to address health inequalities and wider inequalities.

12.6 The statutory guidance Working in partnership with people and communities (2022) supports NHS organisations to meet their public involvement legal duties and the ‘triple aim’ of better health and wellbeing, improved quality of services and sustainable use of resources.

12.7 It is important to note that this statutory guidance builds on the public involvement duty, s13Q of the NHS Act 2006. The Health and Care 2022 explicitly extended the existing duties in relation to public involvement to include carers and their representatives (if any). The importance of this change is explained in the working in partnership statutory guidance. In summary, the changes make it a “legal requirement for arrangements for public involvement to secure the involvement of carers and representatives (if any), as well as service users themselves” (NHS England [July 2022] Working in partnership with people and communities).

12.8 Maintaining legal compliance is important especially since failing to comply may harm or adversely affect individuals, including patients and staff, leave organisations open to legal challenge, run the risk of significant reputational harm and undermine community relations. However, a genuine commitment to advancing equality of opportunity should also mean seeking to meet the spirit of the PSED by genuinely embedding equalities into processes, decision-making and hearts and minds.

12.9 This section of the reference document includes some practical ways in which an organisation can demonstrate they have met the PSED’s requirements. Some of these examples also intentionally consider compliance with the health inequalities duties. Many more examples are provided in the EHRC statutory Code of Practice on services, public functions and associations and Technical guidance on the PSED.

13. An overview of the Equality Act 2010 and unlawful discrimination

13.1 The Equality Act 2010 sets out an extensive range of legal requirements and obligations. It is supported by statutory regulations, statutory and non-statutory guidance published by the EHRC, and a wealth of case law established from cases going through the UK’s judicial system.

13.2 The Equality Act 2010 identifies when discrimination on particular grounds may be unlawful. It does this by identifying what are called protected characteristics, when the treatment of a person may amount to what is called prohibited conduct, and the areas or circumstances in which a person may be protected from unlawful discrimination.

Protected characteristics

13.3 The 9 protected characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race (colour, nationality, and ethnic or national origins), religion or belief, sex and sexual orientation. If you want to understand more about these protected characteristics, the EHRC provides a useful overview.

Prohibited conduct

13.4 Conduct that may be unlawful under the Equality Act 2010 is called prohibited conduct. Annex B of the EHRC Technical guidance sets out the main categories of prohibited conduct. Key areas in which it is unlawful to discriminate include services and public functions, premises, work, education, associations, contracts and transport. Detailed information, case studies and examples of prohibited conduct can be found in the EHRC Codes of Practice on Employment and on Services, Public Functions and Associations.

14. Reasonable adjustments

14.1 All commissioners and providers of healthcare services are required to make ‘reasonable adjustments’ for disabled people, including patients, visitors and staff (Equality Act 2010, s20).

14.2 The test of what is reasonable is ultimately objective, and not what you or your employer or organisation may personally think is reasonable. The EHRC advises that when deciding whether an adjustment is reasonable an employer, or service provider, can consider factors including:

how effective the change will be in avoiding the disadvantage faced by the disabled person

• its practicality
• the cost
• the resources and size
• the availability of financial support.

The aim should be to make it as easy for disabled people to access and use health services as it is for people who are not disabled.

In more technical terms, organisations are required to:

• take reasonable steps where a provision, criterion or practice puts a disabled person at a substantial disadvantage, to avoid the disadvantage (including through providing information in an accessible format).

• take reasonable steps where a physical feature puts a disabled person at a substantial disadvantage, to avoid a substantial disadvantage; this includes removal of the physical feature in question, altering it or providing a reasonable means of avoiding it

• take reasonable steps (including in the provision of information in an accessible format) to provide appropriate auxiliary aids or services where without these a disabled person would be at a substantial disadvantage

14.3 The reasonable adjustment duty is both anticipatory and responsive. This means that organisations need to think about where and how their services will be experienced by people with a range of disabilities. This includes identifying barriers that are more likely to arise in the context of the service being provided, and proactively putting in place measures to address likely substantial disadvantages. Those measures need to be kept under review and approached with flexibility. Gathering data can help to assess where adjustments may be needed.

14.4 The EHRC provides detailed guidance and case studies on reasonable adjustments in both its statutory codes of practice on service delivery and employment.

14.5 Separate legislative provisions require organisations to ensure their websites and apps are accessible (under the Public Sector Bodies [Websites and Mobile Applications] [No. 2] Accessibility Regulations 2018).

15. Positive action

15.1 The positive action provisions within the Equality Act 2010 are designed to encourage individuals and organisations to consider whether there are proactive steps that they could consider to reduce discrimination and/or advance equality of opportunity. Positive action enables individuals and organisations to take positive proactive steps if they consider it to be appropriate and complies with the requirements in the Equality Act 2010. The general positive action provisions set out in s158 explain when organisations may wish to consider proactive steps to reduce inequalities and set out important limitations in relation to the actions that can be taken. This section makes it lawful for organisations to take what is called positive action. This is an important but often little used provision.

15.2 Section 158 says that proactive steps may be taken if a person or organisation “reasonably thinks” that people who share a protected characteristic could be:

• suffering a disadvantage associated with that protected characteristic
• have different needs
• experience disproportionately low levels of participation

15.3 Where any of the three circumstances cited above exist, the Equality Act 2010 says that a person or organisation can lawfully take action to do one of the following:

• enable the disadvantage faced to be overcome or reduced
• meet the identified needs
• increase levels of participation

The 2010 Act does however make it clear a person or organisation cannot do anything that is unlawful under other provisions in the Act (for example, discriminating against people with other protected characteristics).

15.4 There are other positive action provisions; for more information on positive action contained in part 10 of the Equality Act 2010 and Schedule 9, please visit the EHRC website.

16. The Public Sector Equality Duty (PSED) and its importance

16.1 The PSED was created by the 2010 Act, and replaced the race, disability and gender equality duties. It is supported by the SEDs contained in the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 (the specific duties regulations). The duty applies to the ‘relevant protected characteristics’ – age, disability, gender reassignment, pregnancy and maternity, race, religion and belief, sex and sexual orientation. The duty applies to a more limited extent, to the protected characteristic of marriage and civil partnership.

16.2 Section 149 (1), often called the general equality duty, requires a listed public authority in the exercise of its functions to have ‘due regard’ to the need to address 3 equality aims:

• to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act
• to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it
• to foster good relations between persons who share a relevant protected characteristic and persons who do not share it

What ‘due regard’ means is covered below.

Bodies that the general equality duty applies to

16.3 The majority of public authorities are required to ‘have due regard’ to the PSED in the exercise of their functions. These bodies are ‘listed’ in legislation as being subject to the general equality duty. A listed public authority is one which is named as being subject to the PSED in the Act (schedule 19), in another piece of legislation or in statutory regulations.

16.4 Listed public authorities are NHS England, ICBs, NHS trusts and foundation trusts, and many other NHS bodies as well as most other public bodies. With respect to these listed public bodies, the legislation and the courts make it clear that the general equality duty applies to any function carried out by a listed public authority – in other words, operational functions can be the subject of the duty (for example, Pieretti v London Borough of Enfield [2010] EWCA Civ 1104 [12 October 2010]), as well as policies and strategies.

16.5 The general equality duty also applies to other organisations that are not ‘public authorities’ but which carry out ‘public functions’ [s149(2)]. Section 149 (2) makes a range of organisations subject to the general equality duty. These organisations include public bodies not listed as a public authorities, and some bodies in the private or voluntary sectors.

16.6 The organisations in the private or voluntary sector subject to the general equality duty and the three equality aims are typically those that carry out public functions under statutory provisions, contractual or other arrangements. More information on this matter is provided by Annex A of the EHRC Technical guidance on the PSED.

What does the general equality duty require?

16.7 As listed public authorities, for NHS England, ICBs, NHS trusts and foundation trusts the exercise of functions includes the entire spectrum of our activities. This means that in addition to all of the areas listed in part 2 of the Equality Act 2010, it includes decisions, practices or policies and arranging and delivering service. Commissioning, contracting and procurement processes are also important exercises of a public function meaning that consideration needs to be given to the requirements of the PSED in these processes. The EHRC provides guidance on how to build equality into such processes in Buying better outcomes.

16.8 Advancing equality of opportunity involves having due regard to the need to:

• (remove or minimise disadvantages suffered by people due to their protected characteristics
• (take steps to meet the needs of people with a particular protected characteristic where these are different from the needs of other people
• encourage people with particular protected characteristics to participate in public life, or in other activities where their participation is disproportionately low (see Equality Act 2010, s149[3])

The general equality duty recognises the need to meet different needs including (among other things) taking steps to take account of, and steps to meet, the needs of disabled people that are different from the needs of people who are not disabled (Equality Act 2010, s149[4]). This provision supports the duty to make reasonable adjustments set out in s20. The PSED also says that advancing equality of opportunity can involve treating some people more favourably than others but only where this is permitted under the Equality Act 2010 more generally (Equality Act 2010, s149[6]).

16.9 The overall aim of the PSED is to make sure that public authorities take equality into account as part of their decision-making processes and broader exercise of their functions. Central case law principles are described in part 18: How to have ‘due regard’ – key principles from case law. The EHRC has provided important guidance on how to demonstrate compliance with the PSED (see part 19).

16.10 Failing to take account of equality issues is likely to mean that services are less focused on end users (such as patients or carers), less effective, less efficient and potentially more expensive. Moreover, making decisions without demonstrating when and how ‘due regard’ has been given to the PSED may also leave an organisation open to legal challenge through judicial review.

16.11 Having ‘due regard’ to the PSED means considering its three aims in a way that is proportionate to the issue at hand. There have been legal cases that focus on whether specific aspects of the PSED have been met, and so it can be important to ensure that each of the three equality aims has been considered. Equality considerations are not always the ultimate deciding factor, but they do need to be taken into account in a way that is relevant to the decision and clear.

16.12 Decision-makers need to ensure that they give real consideration to these aims and think about the impact of policies with rigour and an open mind, in such a way that might influence the final decision. They should do this before and during policy formation and when a decision is taken. Addressing equality issues in this way should be considered business as usual, not an exceptional activity. When referring to impact, it is important to recognise that the PSED does not just apply to decisions about new policies, practices and procedures. It is equally important to monitor the impact of initiatives or programmes and ensure that these are working appropriately.

16.13 Recognising that where a proposed decision could potentially have adverse impacts, and then seeking to mitigate these, is an important principle (mitigation means measures are put in place that lessen the negative effects of decisions, practices or policies on people with protected characteristics). For instance, everyone has an age and sex. In the 2021 census, 17.7% of the population of England said that they had a disability (9.8 million people).

Monitoring compliance

16.14 To address the ongoing requirements of the duty, organisations should build in periodic monitoring and review arrangements to ensure ongoing compliance with the PSED. Once a decision, practice or policy has been implemented, organisations must monitor how it is working in practice and consider whether inequalities are being identified and addressed.

16.15 The EHRC highlights the importance of monitoring given the ongoing nature of the general equality duty stating that monitoring “the progress of policies and decisions will enable the body subject to the duty to address the continuing nature of the general equality duty”. Bodies “need to decide how to review progress proportionately so that they are ‘aware of circumstances’ which could require the review a current policy or decision. For example, the equality evidence could show that the community it serves has changed; the context in which the body operates has changed; or that the policy is having a potentially discriminatory effect in practice” (EHRC Technical guidance, chapter 5.19).

16.16 If potential issues of non-compliance or opportunities for equality improvements are identified, appropriate action should then be considered to address the issues identified. Case law has identified that senior decision-makers and individual officers may be held accountable for a failure to properly address the requirements of the PSED.

17. The Specific Equality Duties (SEDs)

17.1 The Equality Act 2010 provided Ministers with the power to ‘impose’ SEDs to enable ‘the better performance’ of the general equality duty’s 3 equality aims. The statutory regulations were first agreed by Parliament and published in 2011, then. updated in 2017. These statutory regulations were then updated, for a range of health bodies, again in July 2022 following the passage of the Health and Care Act 2022 (see the Equality Act [Specific Duties and Public Authorities] Regulations 2017). These latest changes made the ‘new’ NHS England, ICBs and other NHS organisations, cited in the 2022 Act, subject to the SEDs.
(Under provisions introduced by the Health and Care Act 2022, the new NHS England included the former National Health Service Commissioning Board, Health Education England [HEE], NHS Digital, NHS Improvement and parts of NHSX.)

17.2 There are 3 sets of requirements in the specific duties:

• the first set requires certain listed authorities to publish gender pay gap information on their employees
• the second set requires certain listed authorities to publish information to demonstrate their compliance with the general equality duty (‘equality information’)
• the third set requires the preparation and publication of one or more equality objectives which the body subject to the SEDs thinks it should achieve to do any of the things mentioned in the general equality duty (‘equality objectives’)

17.3 There are certain limits on the employment requirements for smaller listed public bodies based on the number of employees that they have. All of the regulations require the publication of certain information annually except for the requirement to publish one or more equality objectives. Equality objectives must be published at least every 4 years.

17.4 The EHRC has provided important guidance on how to demonstrate compliance with the SEDs (see part 19). In terms of enforcement only, the EHRC has the direct legal powers to take enforcement action against a listed public authority in relation to alleged non-compliance with the SEDs. However, it is important to note that the EHRC Technical guidance (chapter 6.5) explains that a “court may take into account a failure to comply with the specific duties, for example a failure to set one or more equality objectives, in deciding whether a listed authority has complied with the general equality duty”.

18. How to have ‘due regard’ – key principles from case law

18.1 Case law has established that what is important is not the preparation of a particular document, but that officials give proper, informed consideration to equality issues at the right time. This consideration can be on an ongoing basis throughout the development, implementation and review of a particular proposal. It is also important to keep a record of that consideration. (See, in particular, R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158, and Bracking v Secretary of State [2013] EWCA Civ 1345.)

18.2 Information on what the principles listed above mean in practice and on the case law that underpins them is provided in the EHRC Technical guidance; the guidance and examples provided in chapter 2 and chapter 5 (5.2 and 5.3) are particularly helpful.

18.3 In England, neither the Equality Act 2010 nor the SEDs are prescriptive as to how an organisation must demonstrate compliance with the PSED. However, in the event of a legal challenge, an organisation will be expected to be able to provide evidence of compliance. Given the principles established by case law, undertaking formal, documented equality analyses/equality impact assessments (EIAs) are important ways of demonstrating compliance with the PSED, even if they are not specifically required by the legislation. Well-considered EIAs can help demonstrate compliance with many of the eleven principles set out above and in particular, principles 1, 2, 3, 6, 9, 10 and 11.

18.4 The EHRC Technical guidance also provides guidance on undertaking assessments in chapter 3 and chapter 5 (5.50–5.53). The Technical guidance, chapter 5, explains the issues that the courts may take into account if a failure to properly assess compliance is alleged.

19. The EHRC and its key guidance

19.1 The EHRC is the regulatory and enforcement body with respect to the Equality Act 2010. In these roles, the EHRC has published a range of both statutory and non-statutory guidance, including Statutory Codes of Practice and Technical guidance.

19.2 The main purpose of the Statutory Codes of Practice is to provide detailed explanations of the provisions in the Equality Act 2010 and to apply legal concepts to everyday situations. These codes are admissible as evidence to assist courts and tribunals when interpreting the law. In relation to services and employment, NHS England, ICBs and NHS trusts and foundation trusts may find the following statutory Codes of Practice helpful – Services, Public functions and Associations and Employment.

19.3 In relation to the PSED, the EHRC has not published a statutory code but it has published Technical guidance. This Technical guidance, last updated in April 2023, is intended to provide “an authoritative, comprehensive and technical guide to the detail of the law”. It is therefore recommended that this guidance is considered by NHS bodies when developing arrangements for complying with the Equality Act 2010. (See EHRC [August 2014, last updated April 2023], Technical guidance on the Public Sector Equality Duty: England)

19.4 With respect to the PSED, the Technical guidance (chapter 5.2) draws on case law and highlights seven key principles:

• knowledge of the duty
• timeliness
• real consideration
• sufficient information
• that the duty is non-delegable
• review
• evidence of consideration

19.5 The Technical guidance (chapter 5.4) provides guidance on the questions that a body subject to the duty might ask itself on compliance with the duty:

• identifying the relevance of the general equality duty (Technical guidance paras 5.5 to 5.14)
• ensuring a sound evidence base (paras 5.15 to 5.29)
• ensuring due regard in decision-making (paras 5.39 to 5.59)
• providing evidence of compliance (paras 5.60 to 5.62)
• meeting the duty in relation to other bodies (paras 5.63 to 5.75).

19.6 The Technical guidance explains that it is important “to document how any conclusions from your equality analyses or equality impact assessment have influenced your policies and practices”. It goes on to explain that assessing “whether the general equality duty is relevant to a function will require some analysis and should be more than guesswork, but should not be a burdensome task. It is not an end in itself; rather it should help a body subject to the duty to prioritise its efforts and enable them to give greater consideration to those functions with the highest degree of relevance and impact” (para 5.9).

19.7 The Technical guidance (chapter 5.18) advises bodies subject to the duty to use the evidence that they have gathered to:

• understand the effect of its policies, practices and decisions
• consider whether further research or engagement is necessary
• consider whether there are ways of mitigating any adverse impact identified
• decide whether to modify or reconsider a policy, practice or decision
• identify equality priorities; for listed authorities this includes developing equality objectives
• monitor their progress against these objectives

19.8 In deciding whether to modify or reconsider a policy, practice or decision, the EHRC Technical guidance (chapter 5.25) highlights the importance of not delaying considering and where necessary acting on “issues which come to light through existing sources; for example, staff knowledge, court or tribunal cases, customer feedback or engagement (involvement) of equality groups, or national data.” The EHRC also explains that a “number of research reports cover such issues, including Is Britain Fairer?: The state of equality and human rights 2018. Also the Office for National Statistics offers a huge range of statistical information on employment, economic matters and the UK’s population.”

20. Having due regard to PSED issues in practice

20.1 To demonstrate compliance with the PSED, it is important to have evidence that on the impact or potential impact your work may have on people by reference to protected characteristics.

20.2 This evidence could be in the form of policy papers, project documentation or background research that analyses what you know about the equality implications of your work. The depth of analysis should be proportionate to the decision/programme’s potential impact (whether positive or negative) on the three equality aims and relevant protected characteristics, and informed by any evidence you have from earlier consultations and stakeholder engagement. The important thing is that any assessments arising from your equality analysis are able to influence your work and the material produced.

20.3 An equality impact analysis can produce valuable evidence. Such evidence may come from talking to stakeholders, conducting primary research where evidence gaps are identified or analysing datasets. Undertaking such assessments is not a specific legal requirement, and there is no prescribed format for these analyses; however, they can provide evidence of activity to comply with the PSED and the SEDs. Evidence gathered for a specific equality analysis may also inform to associated initiatives.

20.4 The EHRC Technical guidance (chapter 5.30–5.38) explains when and how engagement with those likely to be affected by decisions (for example, service users and employees) may assist relevant bodies to comply with the general equality duty.

20.5 The evidence base and the equality assessments should inform decision-making and day-to-day monitoring of how services are working and decisions are being implemented.

20.6 It is good practice for minutes or other records of decision-making to record how equality issues have been taken account of as part of the final decision-making process. NHS organisations, also subject to the health inequalities duty, may wish to consider the benefits of developing an integrated equality and health inequalities impact assessment (EHIA).

21. The NHS Standard Contract, the Equality Delivery System (EDS) 2022 and support

21.1 NHS England mandates commissioner use of the NHS Standard Contract for all contracts for healthcare services other than primary care, and the contract (in full-length and shorter-form versions) is updated annually.

21.2 NHS England, in accordance with its duties under the Equality Act 2010 and the PSED, ensures that the NHS Standard Contract includes explicit equality provisions. In the 2023/24 contract, key equality provisions are set out in SC13 Equity of Access, Equality and Non-Discrimination, this section includes a range of equality and health inequalities requirements.

21.3 The NHS Standard Contract also requires providers to comply with the Accessible Information Standard (SC12.3) and to ”actively engage, liaise and communicate with service users (and, where appropriate, their carers and legal guardians), staff, GPs and the public”. This engagement should be “in an open, clear and accessible manner in accordance with the Law and Good Practice” seeking feedback whenever practicable (SC12.4). In particular, making ‘reasonable adjustments’ needs to include the provision of information (Equality Act 2010, s20[6]). All NHS commissioners and providers are required to have regard to the Accessible Information Standard in their activities. (Further to s250 Health and Social Care Act 2012.)

21.4 Providers are also required to “involve service users (and, where required by law or otherwise appropriate, their carers and legal guardians), staff, service users’ GPs and the public when considering and implementing developments to and the redesign of services” (SC12.5).

21.5 The Equality Delivery System (EDS 2022), developed by the NHS, for the NHS, taking inspiration from existing work and good practice, is a system that helps NHS organisations improve the services that they provide for their local communities and provide better working environments, free of discrimination, for those who work in the NHS, while meeting the requirements of the Equality Act 2010.

21.6 Using tools and analysis, developed through EDS 2022 makes a real contribution to providing the information required to demonstrate compliance with the PSED.

21.7 NHS providers are mandated in the NHS Standard Contract to implement EDS 2022, and this is also a key standard for all NHS commissioners. Detailed information on implementation is contained in the EDS 2022 Technical guidance. NHS commissioners may use EDS 2022 to analyse their performance against these outcomes for each group afforded protection under the Equality Act 2010, plus inclusion health groups (eg refugees, asylum seekers, homeless and sex industry workers). Using the best available evidence, this analysis should be done in discussion with local stakeholders including patients, communities and staff. This analysis should assist organisations working with local stakeholders to identify their equality priorities.

21.8 The Equality and Health Inequalities Network (EHIN) is housed on the FutureNHS website (login required). EHIN’s purpose is to bring together materials to support NHS staff working to improve patient equality and health inequalities. This includes staff working in NHS England, ICBs and NHS trusts and foundation trusts.

21.9 The network is the go-to-place for information and resources on improving patient equality and health inequalities; provides opportunities for peer-to-peer support across the wider health and care sector by connecting various stakeholders, including regional ICBs and ICSs. It encourages collaboration with its members on patient equalities and health inequalities projects. In 2023, it had over 7000 members and assists them to:

• keep on top of the latest news and developments
• share and learn with peers – seek help, offer ideas, solutions and support, to avoid reinventing the wheel
• contribute evidence and shine a light on good practice
• find out about early thinking and access and contribute to draft documents
• engage with national teams so that their voice is heard; for example, support with workshops and events that stem from discussions in the General Discussion Forum on relevant topics.

Section D: Resources

Resources for PSED and health inequalities

• FutureNHS The Equality and Health Inequalities Hub
• FutureNHS Healthcare Inequalities Improvement Programme workspace, including interactive online forum
• NHS England Equality, diversity and health inequalities, including NHS England equality objectives and reports

Health-inequalities specific resources

• FutureNHS Healthcare Inequalities Improvement Dashboard
• Office for Health Improvement & Disparities (2022) Guidance on addressing health disparities and health inequalities
• Office for National Statistics Health inequalities datasets
• NHS England NHS funding allocations resources, including in relation to inequalities
• A national framework for NHS action on inclusion health
• Inclusive digital healthcare: a framework for NHS action on digital inclusion

Equality Act 2010 and PSED specific resources

• Equalities and Health Inequalities Network, including interactive online forum
• Equality and Human Rights Commission. Provides a wide range of PSED statutory and non statutory guidance on its website, including:
  • Buying better outcomes, updated May 2022
  • Employment: Code of Practice, published 2011, updated September 2015
  • Sexual harassment and harassment at work: technical guidance, updated September 2024 [This update of this statutory code was published on 2 October 2024. A 3-month consultation was launched on the same day. The statutory code may be subject to further revision in 2025.}
  • Services, public functions and associations: Code of Practice, published October 2024
  • Technical guidance on the PSED: England, published 2014, updated April 2023
• EHRC guidance: It is important to note that the EHRC has commenced the process of updating its statutory codes of practice with a review of the services statutory code. It has also updated other guidance to address new statutory requirements. Given the government’s planned legislative agenda which includes changes to employment law, equal pay and other equality provisions, further important changes to the EHRC statutory codes of practice and other guidance are likely to follow in 2025 and 2026.
  [Kings Speech briefing, HM Government, July 2024.]
• Care Quality Commission (2018, last updated May 2022). Equally outstanding: Equality and human rights – good practice resource

Other important resources

NHS England:

• Guidance for Commissioners: Interpreting and Translation Services in Primary Care, updated 2019
• Technical standards and guidance (health building notes/health technical memoranda documents)
• Working in partnership with people and communities: statutory guidance, published July 2022, updated May 2023

Publication reference: PRN01769