GDPR, Equality Data and Housing: A Quick Guide
It’s been difficult lately to attend a meeting or event and not hear those four little letters – G D P R at some point during the day. As our members work out what the General Data Protection Regulation (GDPR) means for them across a range of their functions, some have started asking us how this impacts on their equality monitoring.
Access presentation from Morgan Cole LLP on GDPR and Equality Data from Tai Pawb GDPR seminar.
The first and most important thing to say is that equality monitoring is still justifiable and necessary for local authorities and housing associations to comply with the law. It remains a valuable way of allowing organisations to analyse information to ensure that processes are fair, transparent; so they can promote equality of opportunity for all; and to allow more effective planning and delivery of services.
Local Authorities are classed as listed public authorities, and are therefore bound by specific equality duties under in the Equality Act 2010. One of these duties requires local authorities to collect and use equality data to ensure their services are free from discrimination, to advance equality and promote good relations. Therefore any data that is collected and used in this way will be compliant with GDPR, assuming that other relevant requirements of GDPR are also met, such as issuing privacy notices.
Although Housing Associations are not bound by this specific equality duty, they are, by law, required to comply with the general equality duties in respect of most of their core activities, like allocation, letting, management etc. This is because these activities are regarded by law as ‘functions of public nature’. Collecting and using equality data is necessary in ensuring that housing associations complies with the general equality duties.
For example, the Equality Act explains that advancing equality of opportunity (one of the duties) includes: removing or minimising disadvantages suffered by people due to their protected characteristics; taking steps to meet the needs of people from protected groups where these are different from the needs of other people; and encouraging people from protected groups to participate in public life or in other activities where their participation is disproportionately low. It would be impossible for housing associations to remove disadvantages and meet diverse needs across their activities without collecting and analysing their equality data.
There is no regulatory requirement for associations to collect equalities data on tenants. However, it is unlikely that RSLs would be able to meet regulatory expectations without collecting this data.
In order to comply with performance standard 1 of their governance code and the law, all RSLs have to understand the diversity of their local communities. Equalities monitoring would be considered the most appropriate way of achieving this. In addition, customer insight requires customer data in order to design and provide locally responsive services.
The regulatory expectation for RSLs, including board diversity, is as follows:
Housing association activities and services should reflect the diversity of communities where they operate and be free from discrimination and promote equality of opportunity. Housing associations are expected to implement the equality and diversity requirements set out in their Code of Governance and the Equality Act 2010.
In addition, if boards are not currently fully representative of the communities they serve, the regulator expects boards to set out plans to improve representation as they recruit new members.
Housing Associations and ONS Reclassification
The reclassification of housing associations back into the private sector will not affect their need to comply with the Equality Act, as private organisations can still perform functions of public nature. Housing associations were deemed to be performing public functions (for the purposes of the Human Rights Act and Equality Act) in 2009, following a judgement in a case of London & Quadrant Housing Trust v Weaver, made when housing associations were private organisations. There is a useful briefing on this subject here.
Presentation from Morgan Cole LLP on GDPR and Equality Data.
We have a plethora of information on equality monitoring on our equality monitoring resources page, and we can also provide advice through our member helpline and training or consultancy services for those who want more detailed support.