When are public bodies legally required to proactively collect data?
Cassandra Somers-Joce & Joe Tomlinson
In a recent Administrative Court decision, the Secretary of State for the Home Department was found to be in breach of the Public Sector Equality Duty (the “PSED”), contained in s.149 of the Equality Act 2010, due to failing to collect and monitor statistical equality data relating to the provision of asylum accommodation to vulnerable individuals. The judgment in R (DXK) v Secretary of State for the Home Department [2024] EWHC 579 (Admin) (“DXK”) builds upon a developing line of cases which have found that the duty to have ‘due regard’ under the PSED may require a decision maker to proactively obtain information, rather than simply to consider existing information. It also provides an interesting exploration of the relationship between the circumstances in which the PSED will require the collection of information by a public body decision maker, and the common law duty of inquiry.
Facts
In DXK, a pregnant woman who had had her application for asylum refused challenged the lawfulness of the system of allocation of asylum accommodation as it related to pregnant and new mother asylum-seekers (“PNMAS”). She made this challenge on a number of grounds, with her principal argument being that the Secretary of State had failed to provide her with accommodation within a reasonable period of time, pursuant to the duty contained in s.4(2) of the Immigration and Asylum Act 1999, and had failed to have in place a lawful system for the allocation of such accommodation under s.4(2) and s.95 of that Act. The claimant also made a number of systemic challenges to the process of allocation, which taken together amounted to a contention that the Secretary of State had unlawfully failed to collect and monitor relevant statistical data on the allocation of dispersal accommodation to PNMAS.
By the time that the claim came before the Administrative Court, the claimant had been moved to longer-term accommodation, which rendered her initial claim academic. However, the systemic challenge was permitted to proceed on the basis that there were exceptional grounds justifying their substantive determination (para. 8). The two grounds argued in this respect put forward, respectively, that in failing to collect and monitor statistical data, the Secretary of State was in breach of the duty to have regard to children’s welfare under section 55 of the Borders, Citizenship and Immigration Act 2009 (“BCIA 2009”), and was also in breach of the duty to have due regard to equality considerations in the discharge of public functions under the PSED.
Judgment
The Administrative Court found for the claimant on the PSED ground. They concluded that the Secretary of State was unable to evidence the discharge of his duty to have “due regard” under the PSED, because there was no system of monitoring how many PNMAS received asylum support, the nature of their accommodation, or how quickly accommodation was assigned to them, and therefore no way of making a comparison with other asylum seekers.
The discussion of this ground began with an exposition of the principles of the PSED which were of special relevance to the case (para. 133). The court noted that there was no dispute between the parties that the PSED applied to the Secretary of State in the discharge of his functions in the provision of asylum accommodation, or that the PSED applied in relation to the relevant protected characteristics of pregnancy and maternity and age. The court reiterated that the PSED is both continuing and context specific (para. 133(v)). The judgment is clear that the duty to have “due regard” requires “a proper and conscious focus on the statutory criteria” (para. 133(vii)), although the weight to be attached to any particular factor is a matter for the public authority itself, subject to review under the Wednesbury standard (para. 133(xi)).
The Administrative Court said that the PSED brings with it the duty to consider the need to obtain further, relevant information, and set this principle in the context the line of cases through which it developed (see R (Brown) v Secretary of State for Work and Pensions (Equality and Human Rights Commission intervening) [2008] EWHC 3158 (Admin); R (Hurley) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin); R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345; and R (DMA) v Secretary of State for the Home Department [2020] EWHC 3416 (Admin)). The claimant, in advancing the systemic challenges, had placed particular reliance on DMA, in which the Administrative Court had held that the Secretary of State’s failure to collect and monitor statistical data relating to the provision of asylum accommodation to disabled people was unlawful. The effect of the line of cases taken together is that a public body will not always be required to equip itself with further information if it considers that it can exercise its duty under the PSED with the material that it has. However, where the relevant material is not available, there will be a duty to acquire it (para. 135).
In determining whether the Secretary State was in breach of this duty to acquire relevant information, the Administrative Court considered the scope of the discretion which is afforded to a public authority when considering whether to obtain further information under the need to have “due regard”. The Administrative Court held (at para. 136) that:
The discretion as to what information should be obtained is not at large; it is conditioned by the nature of the section 149 duty and its statutory objective and any relevant section 14 code of practice or section 13 guidance, including the EHRC Guidance, as well as the facts of the particular case. All of these factors may narrow the decisionmaker’s margin of discretion so as to justify the court’s intervention in a failure to obtain equality evidence when an application of orthodox Tameside principles alone may not.
The Administrative Court concluded that, in the circumstances of the case, the duty to have due regard could only be discharged by the collection of statistical equalities data. The court imposed a mandatory order to “collect statistical data on the provision of accommodation to PNMAS and [to monitor that data]”, although it was made clear that “the order imposes no fetter on the means by which the SSHD is to collect and monitor that data” (paras. 174-175).
Comment
The Administrative Court’s ruling in DXK fits into a wider emerging trend in administrative law doctrine: the evolution, under the PSED and the common law, of duties on public bodies to acquire data, in particular on their operation and impacts (we have previously explored this theme in two papers, see here and here). In a public sector where the capacity to collect data is becoming much easier and cheaper due to the expansion of digital infrastructure, the proliferation of arguments from claimants about public body failures to collect data is likely to continue. At the same time, public bodies will likely have to give much consideration as to the types of data they are legally required to collect. DXK raises some interesting points in this respect.
The analysis of the PSED in DXK offers an interesting example of the duty to have “due regard” requiring a public sector decision maker to proactively obtain information under a duty which is more rigorous than common law duties to acquire the information necessary to reach a determination. The common law duty of inquiry provides one mechanism through which failures to collect information can be challenged in a public law context. It requires public body decision-makers to acquaint themselves with the information necessary to make their decision. The principle originates from the decision of the House of Lords in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014. The Tameside duty has, in a number of cases, been said to form a part of rationality review, and indeed, the Administrative Court in DXK said that the common law Tameside duty means that a decision to gather, or not to gather, information is “reviewable according to the Wednesbury standard” (para. 136).
The relationship between the duty of inquiry and the PSED has previously been commented upon by the Court of Appeal in the case of Bracking, which (at para 26(8)) said that:
The combination of the principles in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 [‘Tameside’] and the duty of due regard under the statute requires public authorities to be properly informed before taking a decision.
The judgment in DXK provides further elucidation of this relationship (at para. 136). The Administrative Court’s finding that the PSED is conditioned by the statutory objective of the Equality Act 2010 has the effect of narrowing the margin of discretion afford to a public body decision maker when considering whether to obtain equality evidence, even where the Tameside principles may not have justified the court’s intervention. This suggests that an equalities context will result in a more intense standard of review where a decision is challenged before the courts, and indeed, the Administrative Court in DXK cites the famous dictum of Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, in which he said that “the intensity of review in a public law case will depend on the subject matter in hand…[i]n law, context is everything”.
Further, the Administrative Court went on to emphasise the particular importance of statistical data monitoring in the equalities context (at para. 154). The judgment notes that statistical data allows failure to be identified, and effective remedial steps to be taken. The Court reiterated the statement in the EHRC Guidance that ‘hard statistical data’ is at ‘the root of effective compliance with the general equality duty’ (at para. 154(iii)). The Administrative Court’s ruling in DXK was that the Secretary of State could not have discharged the PSED without collecting statistical data (see para. 157)—effectively imposing a duty to collect a certain type of information in this setting. Whilst the Administrative Court were clear that the mandatory order did not specify how this statistical data ought to be collected or monitored in practice (see para. 175), the decision still appears to represent the court taking a firm stance on the discharge of the duty to have due regard. This not least because for such data to be statistically rigorous or meaningful, the public authority’s methodological discretion will necessarily be circumscribed.
DXK should therefore be read as the latest judgment in a growing body of administrative law jurisprudence on the question of when public bodies are legally required to acquire certain types of data—a jurisprudence that is becoming more relevant as data capabilities become ever more available to, and central to operation of, modern government. There is much space for further doctrinal, theoretical, and social-legal analysis of this evolving aspect of administrative law.
This blog post was first published on the UK Constitutional Law Blog.
