In the case of s.15 (1) discrimination, there is a potential proportionality defence in s.15 (2). This provides that the treatment of the disabled person, rather than the steps taken by the landlord, must be justified.
The concept of proportionality contained in s. 15(2) contains a four stage test:
1.1. is the objective sufficiently important to justify limiting a fundamental right?
1.2. is the measure rationally connected to the objective?
1.3. are the means chosen no more than is necessary to accomplish the objective?
1.4. Are the disadvantages caused disproportionate to the aims pursued?
Established principles in respect of the PSED – Public Sector Equality Duty
- Section 149 provides: (NB full list of public bodies this applies to is set out at Schedule 19 of the Act)
“A public authority must, in the exercise of its functions, have due regard to the need to –
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic [which by subsection (7) includes disability] and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to –
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities. …”
- The principles of law applying to the nature and extent of the PSED are explained in Bracking v Secretary of State for Work and Pensions  EWCA Civ 1345 at paragraph 25. These include:
2.1. The duty is to have due regard to the need to achieve the goals identified in paras (a) to (c) of section 149(1).
2.2. The duty demands “a conscious approach” and that it should be performed “in substance, with rigour and an open mind.” ;
2.3. The PSED involves a duty of inquiry. The duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it.
Moreover, the PSED, particularly when viewed alongside the UN Convention on the Rights of Persons with Disabilities, imposes a positive obligation to advance equality of opportunity: see Bracking para 77.