Mr Justice Leggatt:
Introduction
- In September 1974 the claimant murdered a 14 year old girl by strangling her and then had sexual intercourse with her body. In December 1974 he pleaded guilty to the offence and was sentenced to life imprisonment with a minimum custodial term of 18 years. He completed that term in 1992 but has not yet been released. The claimant has now spent over 40 years in prison. He is 77 years old and has physical disabilities having had a heart attack and a stroke. His disabilities include deafness in both ears, inability to walk unaided for any distance and incontinence.
- On 9 May 2014 the Parole Board directed the claimant's release under section 28 of the Crime (Sentences) Act 1997 to a hostel for adult male offenders in Wakefield known as "Ashdene" once funding was in place to meet his adult care needs in the community. The Parole Board also recommended that on his release the claimant's licence should include conditions requiring him (among other things) to reside permanently at Ashdene and not to leave Ashdene otherwise than in the company of a member of staff.
- The claimant was not released to Ashdene because funding was not put in place for his care needs. Some 18 months after the Parole Board gave a direction for his release, he still remains in custody. It is the claimant's case that his continued detention is a result of breach by the defendants of statutory and other public law duties. It is important background to the legal issues to determine how as a matter of fact it has come about that the claimant's release to Ashdene did not take place, and I will address this question first.
The failure to secure funding
- The National Offender Management Service ("NOMS") is an executive agency of the Ministry of Justice responsible for commissioning and delivering prison and probation services in England and Wales on behalf of the Secretary of State. Through NOMS, the Secretary of State provides accommodation for the supervision and rehabilitation of offenders in the community in two relevant ways. First, the National Probation Service, which is part of NOMS, operates an estate of premises which have been approved under section 13 of the Offender Management Act 2007. These premises provide a relatively high level of security and supervision in order to manage the offender's risk. Second, in addition to these "approved premises", NOMS funds accommodation in projects operated by a private organisation called the Langley House Trust ("LHT"). Most though not all of these projects are designed for offenders who require less supervision, and are focused more on offenders' housing and therapeutic needs. The funding provided by NOMS covers the basic cost of accommodating an offender in a LHT property, but it does not extend to social care that is specific to an individual offender.
- The duties of local authorities to assess an adult's needs for social care and to provide care and support for those who meet eligibility criteria are now set out in the Care Act 2014. As explained in an instruction issued by NOMS on 30 March 2015 to prisons and providers of probation services regarding adult social care:
"The Care Act 2014 reforms social care provision in England from April 2015 and clarifies the responsibility of local authorities to provide assessments and care and support services for adults in prisons and approved premises on the basis of equivalence to people living in the community."
- Before an offender who has disabilities can be released either to approved premises or to a LHT project it is necessary to find accommodation which provides a physical environment suitable for the individual concerned. In each case NOMS also requires as a matter of policy that any social care needs have been assessed by the relevant local authority and that arrangements have been made to meet those needs.
- Ashdene is a hostel run by the LHT which has a higher level of security than most of its projects. The security and supervision provided includes 24 hour staffing, with at least two staff on duty at all times, a staff-controlled single entry point, CCTV, drug and alcohol testing, room searches and internet filtering. Ashdene was identified as suitable for the claimant because it had a ground floor room available and could cater for his mobility issues whilst also providing appropriate supervision. The decision of the Parole Board dated 9 May 2014 directing the claimant's release to Ashdene stated that a placement in LHT accommodation had been considered "as it is apparent that no open prison or probation approved premises has the facilities to cater for your health needs".
- The LHT has set out in an email dated 23 May 2015 from Cath Magee, its Head of Referrals – Care and Complex Needs, the accommodation and services which were available for the claimant at Ashdene. The LHT considered that, in addition to the security and supervision provided for all residents, the claimant required extra support consisting initially of 6 hours of dedicated staff support each day and weekly meetings with a psychologist. The total cost of providing this "extra care" (and the associated management time involved) was £1,116.50 a week. The essential reason why the claimant's release to Ashdene did not take place was that no one agreed to pay this charge.
- NOMS would not agree to pay the extra charge, maintaining that it related to social care. The local authority responsible for assessing the social care needs of persons resident at Ashdene and for making provision for their eligible needs is Wakefield Council. Wakefield Council has made three assessments of the claimant's social care needs – in July 2014, October 2014 and again in July 2015. In July and October 2014 the Council concluded that the claimant was not eligible for social care funding. In July 2015 it concluded that the claimant had eligible needs but that these could be met without funding. The Council was therefore not willing to pay any part of the extra charge.
- Without agreement to pay the extra weekly charge, the LHT declined to accept the claimant at Ashdene.
Attempts to arrange an alternative placement
- Since July 2015 attempts have been made by NOMS to arrange an alternative placement for the claimant, this time in approved premises. By the end of August a place appeared to have been found at an approved premises facility called Wilton Place. However, on 11 September 2015 it was learnt that this place would not after all be available in the near future because the plan to move on the individual whose place the claimant could then take had fallen through. A place was then found for the claimant at another approved premises facility called St Joseph's with effect from 12 October 2015. The relevant local authority, Salford, was contacted and asked to assess the claimant's social care needs. To allow the claimant's release to St Joseph's, it was also necessary to obtain the approval of the Parole Board since the Board had only authorised his release to Ashdene. On 25 September 2015 a request was made to the Parole Board to vary its direction for release as a matter of urgency so that the place available at St Joseph's could be taken up. However, the Parole Board required a further oral hearing before making a decision in view of the extent of the proposed changes to the claimant's release and risk management plan, the length of time since the last oral hearing and his age. The Board directed that the hearing should be expedited but I was informed that no date for the hearing has yet been set.
- Because the claimant could not be released on 12 October 2015, the place at St Joseph's which had been reserved for him from that date was lost. According to a witness statement dated 16 October 2015 made by Sean Langley, Head of Approved Premises Policy at NOMS, NOMS has now asked the Parole Board to consider varying its direction to enable the claimant to be released to any approved premises at which a suitable place becomes available rather than specifying a particular address. NOMS has also asked the Board to consider making this decision on paper or, if an oral hearing is still required, holding a telephone conference at which arrangements can be discussed before the hearing. It does not appear that there has yet been any response to this request.
These proceedings
- Following pre-action correspondence, these proceedings were begun on 18 March 2015 claiming judicial review on four grounds. Ground 1 alleged that the claimant's continued detention is unlawful and in breach of article 5 of the European Convention on Human Rights (ECHR). Ground 2 alleged that the defendants are in breach of statutory and other public law duties which require them to provide for the resettlement of the claimant. Ground 3 alleged that the claimant's continued detention is a result of discrimination on account of his disabilities and/or age. Ground 4 sought to challenge the decision of Wakefield Council made in October 2014 that the claimant was ineligible for social care.
- Permission to proceed with the claim was initially refused on the papers. However, following reconsideration at an oral hearing on 16 June 2015, McGowan J granted the claimant permission to proceed against the first and second defendants on grounds 2 and 3. The judge refused permission on grounds 1 and 4 and discharged Wakefield Council as a defendant. The Council and the Parole Board were both joined as interested parties but neither of them has subsequently taken any part in the proceedings.
- As mentioned, the third assessment made by Wakefield Council of the claimant's needs for social care was completed in July 2015, after the claim for judicial review of the Council's previous decision had failed. The claimant has not sought to challenge the result of that last assessment.
Ground 2: breach of resettlement duties
- Of the two grounds for which permission was granted, the first is the claimant's contention that, in failing to provide or procure funding to enable him to take up a place at Ashdene, the defendants were in breach of statutory duties and/or duties to comply with published policies. Two statutory duties are relied on. The first is section 2 of the Offender Management Act 2007.
S.2 of the Offender Management Act 2007
- The Offender Management Act 2007 made new arrangements for the provision of probation services. Amongst other things, Part I of the Act abolished local probation boards and transferred to the Secretary of State the responsibility to ensure the provision of probation services and powers to contract with others to do this. Section 2(1) provides:
"It is the function of the Secretary of State to ensure that sufficient provision is made throughout England and Wales –
(a) for the probation purposes;
…
and any provision which the Secretary of State considers should be made for a purpose mentioned above is referred to in this Part as 'probation provision'."
The "probation purposes" are defined in section 1 of the Act and include "the supervision and rehabilitation of persons … convicted of offences". Pursuant to section 1(2)(c) and (d), this purpose in turn includes "supervising persons released from prison on licence" and "providing accommodation in approved premises".
- Counsel for the claimant submitted that in the circumstances of this case section 2 imposed a duty on the Secretary of State to ensure that the claimant was released to Ashdene in accordance with the direction of the Parole Board, if necessary by funding the extra charge or part of the extra charge required by the LHT for the placement.
- The defendants responded that the funding required to enable the claimant to take up a place at Ashdene was funding for his social care needs, which fell within the area of responsibility of Wakefield Council and was outside the function of the Secretary of State. On behalf of the defendants, Mr Flanagan submitted that the function of addressing care needs is distinct from the probation purposes in the 2007 Act, being the subject of a separate legislative regime now contained in the Care Act 2014. He submitted that under the 2007 Act the Secretary of State accordingly did not have the power, and in any event had no duty, to provide the requisite funding.
Rehabilitation and social care
- I accept of course that the functions of the Secretary of State and of the responsible local authority are different and contained in separate legislation. But it does not follow that there is a sharp delineation between the two. In particular, it does not seem to me that there is in all cases a clear distinction between the rehabilitation of offenders, which is one of the "probation purposes" falling within the function of the Secretary of State under the Offender Management Act, and the provision of adult care and support which falls within the scheme of the Care Act. That is illustrated by the description in the email dated 23 May 2015 from the LHT, referred to earlier, of the reasons why the claimant was considered to need extra support in his first months at Ashdene for which specific funding was required. The LHT email said that the claimant:
"requires extra support in the community to protect the public and also to help [him] to familiarise himself with Wakefield and the faster pace of life generally, after 40 years of incarceration. He is extremely institutionalised and staff will be on hand to support him in the community at all times, helping him with his daily living activities such as making his bed, laundry management and ... any bathing/washing requirements.
... We also feel that for the first three months [he] should meet weekly with our psychologist, to ensure that he is coping with the transition from custody to community / hostel life."
- I accept that insofar as the claimant's care needs are the result of his physical disabilities they do not fall within the scope of the probation purposes. However, the LHT email indicates that some of the difficulties which he was expected to encounter on being released to a hostel in the community giving rise to a perceived need for extra support were attributed to the fact that the claimant has spent 40 years in prison and now needs, at the age of 77, to adapt to life in the world outside. Part of that adaptation involves learning to carry out tasks which he has not carried out in prison but is capable of doing for himself with sufficient practice and if given initial help. Examples of such tasks might be using domestic appliances, managing money and paperwork, travelling on public transport, shopping and making use of recreational facilities in the local community. The need for assistance with such tasks falls within the scope of social care. But the purpose for which the assistance is required can also properly be described as rehabilitation. The same could be said of the weekly meetings with a psychologist proposed in the LHT email.
- Moreover, it was (as mentioned earlier) a condition of the claimant's release on licence that he must not leave Ashdene otherwise than in the company of a member of staff. Thus, even if the claimant would have been physically capable, perhaps with an electric scooter as suggested by Wakefield Council in its assessments, of going out of the hostel unaided and able to cope on his own, staff assistance was required in any event whenever he left the hostel for the purpose of supervision (to protect the public). It appears from the LHT email that such staff assistance was an aspect of the extra support in the community covered by the extra charge.
- I accordingly accept Ms Weston's submission that the additional funding necessary to achieve the claimant's release to Ashdene can be characterised as having dual purposes. One purpose was the provision of social care. The other purpose was rehabilitation and supervision.
The nature of the Secretary of State's duty
- I do not, however, consider that the claimant can establish a breach of the duty placed on the Secretary of State by section 2 of the Offender Management Act.
- I think it clear, first of all, that section 2 does not create a duty to provide any particular assistance to any individual. The section is framed in general terms. It refers to the "function" of the Secretary of State, which is a word that connotes a general responsibility rather than any specific duty. It is, moreover, clear from its wording that the section is dealing with the overall sufficiency of the provision made for the probation purposes in England and Wales and not with whether or what specific provision should be made in any particular case for the benefit of any particular individual.
- I am fortified in this conclusion by the fact that it accords with the view of Stanley Burnton J in R (Irving) v London Probation Board [2005] EWHC 605 (Admin). In that case the judge regarded it as clear that section 5 of the Criminal Justice and Court Services Act 2000, which defined the function then placed on each local probation board in similar terms to section 2 of the 2007 Act, did not create a duty owed to an individual but a general duty to ensure that sufficient provision was made in respect of its area for the purposes mentioned in section 1 of the 2000 Act. Those purposes corresponded to the "probation purposes" now specified in section 1 of the Offender Management Act 2007.
- Section 5(8) of the 2000 Act stated that it was for the Secretary of State to determine whether or not any provision made by a local probation board for the specified purposes was sufficient. There is no equivalent subsection in section 2 of the 2007 Act as local probation boards have been abolished by the 2007 Act and their function placed directly on the Secretary of State. I think it equally clear, however, that under the 2007 Act the question whether "sufficient" provision has been made throughout England and Wales for the probation purposes is a matter for the Secretary of State to determine, subject only to ordinary principles of judicial review. Under the 2007 Act it is for the Secretary of State to decide what provision ought to be made for any of the probation purposes (as expressly reflected in the definition of "probation provision" in section 2(1) and in the wording of section 3(1) of the Act). It must by the same token be for the Secretary of State to decide what provision is sufficient. That question necessarily involves judgments about how the various probation purposes can most effectively be furthered using the resources available. It is neither within the expertise nor part of the constitutional function of courts to make judgments of that nature. They are for the executive branch of government to make.
- As discussed, providing accommodation and services for the resettlement in the community of offenders whose release on licence has been approved by the Parole Board is part of the probation purposes. No arguable basis has been put forward, however, for disputing that the Secretary of State is entitled to regard the provision currently made for those purposes throughout England and Wales as sufficient. Insofar as the claimant asserts that in the provision made for the resettlement of such offenders there is discrimination against elderly and disabled prisoners, the proper legal basis for the claim is the Equality Act, and I will consider the arguments based on that legislation when I come to the second ground of judicial review.
- Ms Weston for the claimant advanced an argument based on section 2(5) of the 2007 Act. To put that provision in context, section 2(2) requires the Secretary of State to discharge his function under subsection (1) by making and carrying out arrangements under section 3. Section 3 gives the Secretary of State powers to make arrangements for the provision of probation services. Under section 3(2) the Secretary of State may make contractual or other arrangements with any other person for this purpose; alternatively, under section 3(5), the Secretary of State may, if he considers it appropriate, arrange to provide such services directly. Section 2(5) states:
"The Secretary of State is not required by subsections (1) and (2) to take any action in relation to the making of provision for a purpose mentioned in subsection (1) if it appears to him that appropriate provision is being or will be made by any person acting otherwise than in pursuance of arrangements under section 3."
Ms Weston submitted that it is implicit in section 2(5) that, if it is apparent that appropriate provision is not being made by a local authority to fund care and support needed to allow an offender to be released to particular premises to which his release has been directed by the Parole Board, the Secretary of State has a duty to step in and to make arrangements for provision of the requisite care and support.
- This is not a tenable argument. All that section 2(5) does is to make clear that, if the Secretary of State would otherwise have a duty under subsections (1) and (2) to take any relevant action, he does not need to act if it appears to him that someone else will. It cannot be construed as imposing on the Secretary of State an obligation that he would not otherwise have. I have already considered the nature and ambit of the Secretary of State's duty under subsections (1) and (2). For the reasons given, I think it impossible to interpret subsections (1) and (2) of section 2 as requiring the Secretary of State to make specific provision in any particular circumstances for the resettlement of a particular offender.
Duty of cooperation
- The second statutory duty relied on by the claimant is section 6 of the Care Act 2014. This provides:
"(1) A local authority must cooperate with each of its relevant partners, and each relevant partner must cooperate with the authority, in the exercise of –
(a) their respective functions relating to adults with needs for care and support, ..."
As specified in section 6(7), "relevant partners" include the first defendant as the Minister of the Crown exercising functions in relation to prisons and the second defendant as a relevant provider of probation services. Counsel for the claimant contended that pursuant to this duty of cooperation the defendants were obliged to attempt to negotiate and agree with Wakefield Council an arrangement under which the defendants and the Council would split between them the cost of extra support which the claimant needed to enable his release from prison to reside at Ashdene.
- In further support of that contention reliance was also placed on Probation Instruction 06/2012 issued by NOMS, which sets out the responsibilities of probation trusts in relation to "rehabilitation services in the community". The statement relied on reads:
"Trusts must engage with partners to maximise offenders' access to local funded services wherever possible. Trusts must also engage with local partners to co-commission rehabilitative services, aligning resources to make best use of public funds. NOMS will only fund additional rehabilitation services where there is a gap in provision to meet a priority need which will not otherwise be met."
Counsel for the claimant invoked the principle of public law that a decision-maker must follow its published policy, provided the policy is lawful, unless there are good reasons for not doing so: see R (WL(Congo)) v Secretary of State for the Home Department [2012] 1 AC 245, paras 26 and 35.
- Neither section 6(1) of the Care Act nor the policy statement relied on by the claimant could require NOMS to fund any services which fall outside the function the Secretary of State under section 2 of the 2007 Act, and I have already noted that it is not part of that function to meet social care needs resulting from an offender's disabilities. As also discussed, however, there seems to me to me an area of potential overlap between rehabilitation and social care. Even where an offender has a need for assistance which falls within this grey area, it cannot realistically be contended that either section 6(1) or the statement of policy quoted above imposes an obligation on the Secretary of State through NOMS to fund the provision of services where the local authority will not. On the other hand, from the way their case was presented, it appears that the defendants may regard their duty of cooperation with local authorities as extending only to referring an offender in the position of the claimant to the social services department of the local authority for the area in which premises under consideration are situated and helping to arrange for an assessment of the offender's needs for care and support to be carried out by the local authority. I cannot accept that the duty is as limited as this.
- What section 6(1), as it seems to me, must be intended to prevent is a situation in which, where support is needed which, at least arguably, both a local authority and a "relevant partner" may be expected to provide, neither does so because each takes the position that the provision of such support is the responsibility of the other – so that the individual concerned 'falls between the cracks'. To minimise the scope for such an outcome and give substance to the duty of cooperation, I consider that where an offender whose release on licence has been approved by the Parole Board subject to funding which can be said to be required both for the purpose of meeting social care needs and for the purpose of rehabilitation, section 6(1) of the Care Act requires the defendants to engage in good faith discussions with the responsible local authority to attempt to agree how support which serves such dual purposes is to be funded. Participating in such discussions in good faith must also entail being ready and willing to contribute financially to an appropriate arrangement to meet a priority need. While the question of what amounts to a priority need must be for the defendants to judge, I find it difficult to see how it could be said that the claimant's need, once the Parole Board had given a direction for his release to specific premises subject to the requisite funding being put in place, did not fall into that category.
- That said, I do not consider that the defendants were in breach of duty in the present case when (1) it seems clear that at least part of the extra support required at Ashdene was for care needs resulting from the claimant's disabilities and (2) Wakefield Council repeatedly assessed the claimant as ineligible for any funding at Ashdene. There was no basis for collaboration or the co-commissioning of services when the local authority did not accept that the claimant required support under the Care Act.
Generic Parole Process
- A further policy document on which counsel for the claimant sought to rely is the Generic Parole Process issued by NOMS. As summarised in the witness statement of Kerry Adams, the responsibility of the defendants recognised in this policy is to collate the information needed by the Parole Board to consider a prisoner's case and to ensure compliance with any direction made by the Board. The latter responsibility cannot, however, reasonably be interpreted as extending to the provision of funding which is necessary before the prisoner can be released, unless the Secretary of State has an independent obligation to provide the funding required. I have found that there is no such obligation in this case.
- My conclusion on this issue is consistent, albeit that the facts of the present case are somewhat different, with the recent decision of HHJ Sycamore in R (TH) v NHS Commissioning Board [2015] EWHC 56 (Admin), where the deputy judge rejected an argument that the role of the Secretary of State in ensuring the effective resettlement of prisoners is one of "last man standing" who has to step in and provide funding in the event that no one else will do so.
Duty to facilitate release
- For the claimant Ms Weston also advanced an argument founded on the decision of the Supreme Court in R (Haney) v Secretary of State for Justice [2014] UKSC 66, [2015] 2 WLR 76. In that case the Supreme Court accepted the conclusion of the European Court of Human Rights in James v United Kingdom (2012) 56 EHRR 399 that the purpose of a sentence of life imprisonment or imprisonment for public protection, at least in relation to prisoners for whom shorter tariff periods have been set, includes rehabilitation. The Supreme Court accepted that there is a duty on the state, implicit in the scheme of article 5 ECHR, to provide a reasonable opportunity for such a prisoner to rehabilitate himself and demonstrate that he no longer presents an unacceptable danger to the public (see para 36). This duty requires the state to facilitate the progress of such prisoners towards release by providing appropriate courses and facilities (para 38). The Supreme Court characterised the duty as an ancillary duty, analogous to the duty to provide access to judicial review of the lawfulness of detention imposed by article 5.4, but arising at an earlier stage.
- Ms Weston submitted that the analysis of the Supreme Court in the Haney case can be extrapolated to the situation in the present case. Just as the state is under a duty to provide reasonable access to appropriate courses and facilities to enable a prisoner serving an indefinite sentence to progress toward release, so likewise must the state promote the purpose of rehabilitation by providing reasonable access to appropriate facilities to allow prisoners who have progressed to the point where their risk can be managed in the community to be released on licence.
- This argument faces a procedural barrier. In the claimant's Grounds the argument is advanced as part of Ground 1, for which the claimant was refused permission to proceed. It is therefore not open to the claimant to pursue it. There is in any event a material distinction between the Haney case and the present case. The Haney case was concerned with a situation in which a prisoner is denied a reasonable opportunity to demonstrate that he no longer poses a risk which justifies his continued detention in prison in circumstances where his release depends on being judged no longer to present such a risk. It would be a significant extension of the ancillary duty recognised in that case to hold that article 5 obliges the state to facilitate release by providing accommodation outside prison for any prisoner who has been able to demonstrate that his risk is capable of being managed in the community.
- This case is not the occasion to decide whether such an extension is warranted. There seem to me, however, to be cogent reasons for thinking that it is not. Finding that the state has such a duty would involve treating the provision of supervised accommodation in the community as a matter of individual right. That would plainly have major implications for public expenditure. It seems to me that the court does not have the information, the institutional expertise or the democratic mandate that would qualify it to decide that the claims of offenders to be provided with supervised accommodation in the community should be given priority over other competing claims of other individuals to the resources available to the Secretary of State in providing for the probation purposes. Yet that would be the effect of elevating the former to the status of legal rights.
Ground 3: Discrimination
- The second ground of judicial review which the claimant has permission to pursue alleges that his continued detention following the Parole Board's decision is a result of discrimination or other failure of the defendants to treat him equally as an elderly, disabled prisoner. This allegation has been advanced with something of a scattergun approach on a variety of different legal bases.
Direct discrimination
- The first is direct discrimination. As defined in section 13 of the Equality Act 2010, direct discrimination occurs where "because of a protected characteristic, A treats B less favourably than A treats or would treat others". Disability (as well as age) is a protected characteristic (see section 4), and it is not in dispute that the claimant is a disabled person for the purposes of the Equality Act. Ms Weston submitted that the phrase "because of a protected characteristic" imports a 'but for' test of causation and that, but for the claimant's disability, he would by now have been released on licence. It follows, she submitted, that he is a victim of direct discrimination.
- To establish direct discrimination, however, it is not enough to show that, if the claimant had not been disabled, he would by now have been released from prison. It is necessary to identify a decision or action taken by the defendant which involved treating the claimant differently and less favourably than he would have been treated if he had not been disabled. There would be direct discrimination if such a decision or action was taken on a ground which was subjectively based on the fact that the claimant was disabled or which, whatever the subjective motivation of the defendant, was obviously or inherently based on that fact: see R (E) v Governing Body of JFS [2009] UKSC 15, [2010] 2 AC 728 at paras 20-21 (Lord Phillips PSC), para 64 (Baroness Hale), para 78 (Lord Mance), paras 113-114 (Lord Kerr) and para 137 (Lord Clarke).[1]
- Following the Parole Board's decision dated 9 May 2014, the defendants could not simply open the prison doors and let the claimant go free. The Parole Board directed his release to a particular facility, Ashdene, subject to the provision of funding for his adult care needs in the community. Insofar as the claimant complains that the defendants have not provided or ensured the provision of such funding, it cannot be said that they would have treated the claimant differently if he had not been disabled. Insofar as the claimant complains that he has not yet been released to an alternative facility, that can only happen if and when the Parole Board varies its decision to authorise such release and an alternative placement is arranged. There is no evidence to suggest that the defendants have made less effort to bring that about than they would have done if the claimant had not been a disabled person.
- I accordingly do not consider there to be any valid basis for the allegation that the claimant has suffered direct discrimination.
Discrimination arising from disability
- The claimant next relies on section 15 of the Equality Act, which provides in subsection (1):
"A person (A) discriminates against a disabled person (B) if –
(a) A treats B unfavourably because of something arising in consequence of B's disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim."
- I think it clear that this provision does not assist the claimant for the same reasons as apply in the case of section 13. Since the claimant cannot show that the defendants have treated him less favourably than they have treated or would have treated others who are not disabled, he cannot show that they have done so either because of his disability or because of something arising in consequence of his disability.
Indirect discrimination
- It is also alleged that the claimant has suffered indirect discrimination. As defined in section 19 of the Equality Act, indirect discrimination occurs where "A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's." Section 19(2) states:
"For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if –
(a) A applies or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristics at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim."
Pursuant to section 19(3), disability (as well as age) is a "relevant protected characteristic".
- The "provision, criterion or practice" alleged by the claimant to be discriminatory is the practice of requiring prisoners to live at approved premises (or LHT accommodation) as a condition of their licence. It is said that this practice places disabled prisoners at a particular disadvantage when compared to other prisoners in the process of release because of a lack of adapted hostels and planned resettlement placements to meet their needs.
- There was some discussion in the course of oral argument of what is meant by the phrase "a particular disadvantage" and how such a disadvantage can be established. Counsel were not able to point to any authority in which any gloss has been put on the meaning of the phrase. As a matter of ordinary language, I interpret the use of the word "particular" as emphasising the need to identify the nature and demonstrate the existence of the disadvantage to which the allegedly discriminatory provision, criterion or practice puts, or would put, B and other persons who share the relevant protected characteristic. There is nothing in the language of the statute which constrains the way in which such a disadvantage may be established and no reason either in principle or based on authority to imply any such constraint. One possible method of proof is statistical evidence, but there is no requirement to adduce evidence of that kind. In Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15, [2012] ICR 704 at para 14, Baroness Hale said that the definition of indirect discrimination in the 2010 Act was "intended to do away with the need for statistical comparisons where no statistics might exist. ... Now all that is needed is a particular disadvantage when compared with other people who do not share the characteristic in question."
- In the present case the claimant's solicitors made a request under the Freedom of Information Act for information from the Ministry of Justice which included information about the number of prisoners currently held in prison following a release decision by the Parole Board and the numbers of such prisoners who (a) are awaiting a suitable accommodation placement, (b) have a disability, (c) are over 60, and (d) are both over 60 and have a disability. The response given was that the Ministry does not keep such statistics or organise its database in a way which would allow the information to be extracted, so that it would be too costly to answer the request as it would require each case to be reviewed individually.
- In the absence of statistics, the evidence relied on by the claimant to seek to show that disabled and elderly prisoners suffer a particular disadvantage is threefold. First, reliance is placed on a report of the House of Commons Justice Committee on Older Prisoners published on 12 September 2013 and the Government's response to that report. Paragraph 113 of the Committee's report records a concern that "approved premises may be unable to receive older prisoners because they are not compliant with disability requirements". The report goes on to recommend that probation trusts "must take steps to ensure that all approved premises meet disability and age equality requirements". The Government's response to this point stated:
"Approved premises are fundamentally short-term risk management facilities for high-risk offenders. As such they are not a solution for the long-term accommodation needs for older prisoners. However, NOMS will explore the possibility of making some small-scale improvements to approved premises. This should better enable them to meet disability and age equality requirements."
- Secondly, the claimant relies on a witness statement of Francesca Cooney, the Advice and Information Service Manager at the Prison Reform Trust, a charity which is committed to improving treatment and conditions for prisoners. In her statement Ms Cooney refers to a survey of prison staff carried out by the Trust in 2010 which found that the resettlement needs of older prisoners were not often met. According to Ms Cooney, accommodation was the main concern mentioned and prison staff explained that it can be particularly difficult to find accommodation for older people leaving prison as the combination of support needs and necessary risk assessments can mean that very little hostel or shared supported accommodation is appropriate.
- The third piece of evidence relied on by the claimant is a witness statement of Laura Orger, the Community Care Caseworker at the Prisoner's Advice Service, a charity which offers free legal advice, information and representation to prisoners. In her statement Ms Orger describes her work in advising and attempting to assist older and disabled prisoners and refers to difficulties and delays caused by bureaucracy within prisons and poor communication between healthcare and discipline staff. Ms Orger gives two examples of cases in which she has been able to help elderly, disabled prisoners to secure a community care package from a local authority thus enabling the prisoner to be released to a care home in the community. She says that in her experience it is highly unusual for a local authority to refuse to fund a place for an elderly person with significant care needs. Ms Orger also comments that "approved premises are highly unlikely to be suitable for disabled prisoners – particularly those with significant mobility problems." The reasons for this are said to be the physical layout of the buildings, which are not generally suitable for disabled people, and lack of sufficient staff to give disabled people the additional assistance they require.
- On behalf of the defendants, Mr Flanagan submitted that this evidence is anecdotal and inadequate to establish that elderly, disabled prisoners are put at a particular disadvantage. He also placed positive reliance on evidence from Sean Langley, Head of Approved Premises Policy at NOMS. In his witness statement dated 16 October 2015 Mr Langley refers to a recent survey of disabled provision in approved premises which found that, of the 2,002 places currently provided in the approved premises operated by the National Probation Service, there are 76 rooms suitable for disabled offenders, plus a further 257 suitable for those with low mobility. Mr Langley says that NOMS considers the current provision for disabled offenders to be sufficient, while acknowledging that more provision is likely to be needed in future to allow for the increasingly ageing offending population.
- Mr Flanagan also emphasised that, despite what was said in the Parole Board decision quoted at paragraph 8 above, when enquiries were made between July and September 2015 two potential placements were found in approved premises which had accommodation suitable for the claimant, albeit that the first place fell through because the current occupant of the room did not move on as expected and the second placement fell through because the approval of the Parole Board could not be obtained in time. He submitted that this tends to contradict the suggestion that the claimant is at a particular disadvantage when compared with other, able-bodied offenders.
- In considering the evidence, it is necessary to distinguish two possible reasons why disabled prisoners could in principle be at a disadvantage when attempts are being made to arrange their release to approved premises (or LHT accommodation). One is lack of accommodation which is suitable in terms of its physical features for occupation by disabled people. The other is difficulty in obtaining necessary care and support.
- As to the first of these matters, the impression I derive from the evidence is that the amount of accommodation in approved premises which is suitable for disabled people falls short of what is to be desired. But the evidence is insufficient to establish that the current provision is such as to put disabled prisoners at a particular disadvantage compared with others when it comes to securing a place in approved premises. In particular, there is insufficient evidence to show that shortage of accommodation physically suitable for disabled prisoners has been a significant stumbling-block preventing the claimant's release following the Parole Board decision.
- As discussed earlier, the principal reason why the claimant has not been released from prison is the absence of funding for care services. While the evidence of Ms Orger indicates that the refusal of the local authority to fund the claimant's placement at Ashdene is highly unusual, it appears that difficulty in securing suitable social care services in the community on release is a common and perhaps increasingly common problem for elderly, disabled prisoners. There is no evidence to suggest, however, that the difficulties are greater for prisoners who are required to live at approved premises than for prisoners who are released without such a licence condition. I am accordingly unable to conclude that the practice of requiring prisoners to live at approved premises places disabled or older prisoners at a particular disadvantage when compared with other prisoners in the process of release.
- There is in any event, in my view, a short answer to the contention that this practice involves indirect discrimination. This is that requiring prisoners judged to pose a significant risk of causing harm to others to reside at approved premises as a condition of their licence is clearly a proportionate means of achieving a legitimate aim.
- The Court of Appeal reached that conclusion in R (Coll) v Secretary of State for Justice [2015] 1 WLR 3781, paras 54-56. The claimant in that case was a woman serving a mandatory life sentence for murder who was likely to be required to live in approved premises when released on licence. She argued that the practice of requiring residence at approved premises as a condition of release operated to the disadvantage of women and involved indirect discrimination in circumstances where (1) approved premises are single sex institutions and (2) there are many fewer approved premises catering for women as a result of there being many fewer female prisoners. The disadvantage alleged was that a female prisoner is much less likely than a male prisoner to be placed in approved premises close to her home. One reason given by the Court of Appeal for rejecting the claimant's allegation of indirect discrimination was that the Secretary of State could plainly show that the practice of requiring residence at approved premises is a proportionate means of achieving legitimate aims – those aims being the protection of the public and the rehabilitation of prisoners by gradual integration into the community. That determination is equally applicable in the present case.
Duty to make reasonable adjustments
- It seems to me that the claimant's real complaint is not that the Secretary of State has adopted a practice of requiring residence in approved premises which indirectly discriminates against disabled offenders; it is that the Secretary of State has not taken adequate steps to ensure that disabled offenders can be accommodated in approved premises without being put at a substantial disadvantage. The appropriate legal basis for that argument is the duty to make reasonable adjustments.
- It is common ground that the defendants are persons who exercise a public function and that a duty to make reasonable adjustments therefore applies to them pursuant to section 29(7) of the Equality Act. By virtue of section 20 read together with Schedule 2, this duty comprises a requirement, where a provision, criterion or practice of the defendant's puts disabled persons generally at a substantial disadvantage in relation to the exercise of the function in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage or to adopt a reasonable alternative method of exercising the function. If a benefit is or may be conferred in the exercise of the function, being placed at a substantial disadvantage in relation to the exercise of the function means being placed at a substantial disadvantage in relation to the conferment of the benefit. There is also a requirement, where a physical feature puts disabled persons at a substantial disadvantage in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage or to adopt a reasonable alternative method of exercising the function. Pursuant to section 21 of the Act, a failure to comply with either of these requirements in relation to a disabled person constitutes discrimination against that person.
- The term "substantial" is defined in section 212(1) to mean "more than minor or trivial". I do not perceive any significant difference between the phrase "substantial disadvantage" and the phrase "particular disadvantage" used in section 19 of the Act.
- Providing or arranging supervised accommodation for offenders who pose a risk that would otherwise prevent their release from prison involves the conferment of a benefit in the exercise of the Secretary of State's function under section 2 of the Offender Management Act 2007. In determining whether the duty to make reasonable adjustments has been triggered, the relevant question, as I see it, is whether the provision of approved premises and other accommodation made by NOMS on behalf of the Secretary of State puts disabled prisoners at a substantial disadvantage in relation to the conferment of this benefit because it is substantially harder to find a suitable place for a disabled prisoner in approved premises (or other supervised accommodation) than for one who is able-bodied. For the reasons already given in discussing the allegation of indirect discrimination, it has not been shown that the current provision is such as to put disabled prisoners at a substantial disadvantage in comparison with prisoners who are not disabled. Likewise there is insufficient evidence to prove that any relevant physical features of the approved premises estate put disabled persons at a substantial disadvantage in comparison with persons who are not disabled.
- I therefore reject the allegation that the defendants have failed to comply with a duty to make reasonable adjustments.
Article 14 ECHR
- A further and alternative legal basis on which the claimant's allegations of direct and indirect discrimination were put is article 14 ECHR, which prohibits discrimination against an individual in the enjoyment of Convention rights. In this case the relevant right is the right to liberty guaranteed by article 5. Counsel for the claimant relied on the same matters to argue that the claimant's continued detention is a result of discrimination in violation of article 14 as they did to argue that there has been direct or indirect discrimination against him which is unlawful under the Equality Act 2010. It is clear, however, and Ms Weston accepted, that the protection against discrimination provided by the Act is as wide as – and in some respects wider than – the protection afforded by article 14. It is therefore unnecessary to give separate consideration to the case advanced under article 14.
The public sector equality duty
- Finally, it is alleged that there has been a breach of the public sector equality duty contained in section 149 of the Equality Act. Section 149(1)(b) requires a public authority, in the exercise of its functions, to "have 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." The content of this aspect of the duty is more specifically set out in section 149(3) and includes 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; [and]
(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; ..."
Disability (as well as age) is again a "relevant protected characteristic": see section 149(7).
- Counsel for the claimant submitted that there is no evidence that the defendants have had due regard to the need to remove or minimise disadvantages suffered by disabled offenders by reason of the inadequacies of hostel provision for such offenders or to the need to take steps to meet the needs of such offenders by ensuring that sufficient accommodation in approved premises is adapted so as to be suitable for disabled people.
- As Mr Flanagan emphasised, the public sector equality duty contained in section 149 is not a duty to advance equality of opportunity in the way specified in that provision. It is a duty to "have due regard to the need" to do so: see R (S) v Secretary of State for Justice [2013] 1 WLR 3079 at para 98, applying R (Baker) v Secretary of State for Communities and Local Government [2008] LGR 939, para 31 (Dyson LJ). The evidence of Mr Langley indicates that the defendants recognise that more accommodation suitable for disabled people is likely to be needed in approved premises in view of the increasingly ageing offender population. Mr Langley has also stated that work is under way at the moment to gauge the levels of demand for such accommodation within overall pressures on space. In addition, the policy guidance issued by NOMS on referring offenders to approved premises (PI 32/2014) addresses issues of health, mobility and social care at paras 56-61. Amongst other matters addressed, offender managers are required when considering referrals to approved premises to ensure that any particular health or social care needs or disabilities of the offender are taken into account in various ways.
- On the evidence before the court it is impossible to say that the defendants have failed to have due regard to the need to minimise disadvantages suffered by disabled offenders and to have due regard to the need to take steps to meet the needs of such offenders in the operation and management of approved premises. I therefore conclude that no breach of the public sector equality duty has been made out.
Conclusion
- It is a matter of regret that one and half years after the Parole Board gave a direction which was intended to result in the claimant's release on licence, this has still not happened. For the reasons given in this judgment, however, I find that this delay has not been caused by any breach of duty on the part of the defendants and that the grounds on which they are alleged to have acted unlawfully are not justified. This claim for judicial review must therefore be dismissed.
Case No: CO/1301/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE LEGGATT
Between:
| |
R (John Taylor )
|
Claimant |
| |
- and -
|
|
| |
Secretary of State for Justice |
First Defendant |
| |
- and - |
|
| |
National Probation Service North West Division |
Second Defendant |
| |
- and - |
|
| |
Wakefield Council |
First Interested Party |
| |
- and - |
|
| |
The Parole Board |
Second Interested Party |
O R D E R
UPON the Claimant's application for Judicial Review
AND UPON HEARING counsel for the Claimant and the Defendants
IT IS ORDERED THAT:
- The Claimant's application for judicial review is dismissed.
- The Claimant's application for permission to appeal is dismissed.
- The Claimant shall pay the Defendants' costs of the claim, such costs to be the subject of a detailed assessment if not agreed.
- Paragraph 3 above shall not be enforced without a determination by a costs judge of the amount which it is reasonable for the Claimant to pay in accordance with section 26(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and Regulations 15 and 16 of the Civil Legal Aid (Costs) Regulations 2013.
- The Claimant's costs of the claim shall be the subject of a detailed assessment in accordance with the Civil Legal Aid (Costs) Regulations 2013 and CPR 47.18.
- The order of McGowan J granting anonymity to the Claimant is not continued.
Dated: 16 November 2015
