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Are you ready for the Equality test?

Equalities have been at the centre of the NHS since it was founded, with the core principle of care for all based on clinical need alone. While some politicians and commentators might suggest there is too much of a focus on equalities in the NHS, this government’s 2022 Health and Care Act places a comprehensive new range of obligations on commissioners and provider organisations to monitor, assess and formally report on equalities and health inequalities issues.

The equalities responsibilities for NHS organisations fall under two broad pillars. First of these are the duties under the Equality Act 2010 and its Public Sector Equality Duty (PSED), looking through the lens of the nine protected characteristics set out in the Act (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race/ethnicity, religion or belief, sex, and sexual orientation).

These responsibilities should be familiar to those working in commissioning organisations as these duties fell on CCGs before the creation of integrated care boards (ICBs). This includes the need to have regard to the three general aims of the PSED in the “exercise of their functions” (These are eliminating unlawful discrimination, harassment and victimisation; advancing equality of opportunity; and fostering good relations).

Importantly, public bodies are required to report and publish equality information annually, including information on its employees (for organisations with more than 150 staff); gender pay gap reporting and information on “other persons affected by its policies and practices” (ie service users). Public bodies are also required to publish at least one Equality Objective. These need to be specific, measurable and reflect “the impact of its policies, practices and functions on people with different protected characteristics”.

What has changed following the Health and Care Act 2022 is that the Equality and Human Rights Commission (EHRC), which is responsible for monitoring and enforcement under the Equality Act 2010, has clearly signalled to ICBs the need to comply with their responsibilities in this area. The Chief Regulator of the EHRC wrote to ICB chief executives in February 2023 reminding them of their obligations under PSED, including reporting and development of equality objectives, and that it will be closely scrutinising their delivery in this area over the coming months. The EHRC also identified a number of priority areas for action.

The second pillar concerns the distinct, but related, action taken to address health inequalities. These duties have a separate base in NHS Legislation. The 2022 Act drew on the stark inequalities seen in the Covid-19 pandemic, bringing forward requirements for the NHS to assess, act and report on health inequalities.

In particular, this requires ICBs to have a specific focus on reducing health inequalities around peoples’ access to services and in the outcomes achieved. In addition, ICBs are required to address health inequalities when they are promoting integration of services and making decisions about “the exercise of their functions”.

To assist ICBs in this area, the 2022 Act says that NHS England should publish a statement on the powers available to NHS bodies on collecting, analysing and publishing information about inequalities in access and outcomes and on how bodies should exercise these powers. While NHS England has gone a long way in setting the strategic direction for health inequalities with its CORE20plus5 strategy, it has yet to publish this formal health inequalities statement, though its development is likely to be well underway.

To underline the importance of health inequalities as a strategic priority for ICBs the 2022 Act required that each ICB’s annual report should explain, in particular, how it has discharged all these health inequalities duties and review “the extent it has exercised its functions” in line with the NHS England health inequalities statement. Further to this, the 2022 Act requires NHS England to performance assess each ICB on their delivery of these health inequalities duties, with NHS England publishing its own report summarising the summary results of the ICB performance assessments.

Put together, these new changes provide a substantial equality test for ICBs to meet on an annual basis, with NHS organisations required to account and formally report annually for the separate scrutiny of the EHRC and NHS England.

Fortunately help is at hand, with the recently published reporting by NHS England providing a template for Equality Act reporting, (but for a much bigger and broader organisation). The EHRC have indicated they intend to take a collaborative approach to support and share good practice with ICBs as they meet their obligations in this area. Likewise, the CORE20PLUS5 approach sets out NHS England’s current thinking on health inequalities in advance of it publishing its formal statement under the 2022 Act.

That said, management teams will have to start action now to define and refine their approach in these areas if they are to be confident of meeting the reporting deadlines in 2024.

John Paul Maytum MBE
John Paul studied as a biochemist and trained as journalist. Over the last three decades he has worked as a policy implementation specialist and communications advisor to senior leaders at the Department of Health, NHS England and other health arms-length bodies. For the last few years he has been working as a consultant to NHS England’s equalities and health inequalities teams.

Last Updated on 28 July 2023