Gichura v Home Office & Anor

For purposes of the Disability Discrimination Act 1995, a governmental function may include the provision of services. The fact that facilities are supplied incidentally to detention, or by a contractor performing a public function, does not by itself remove them from section 19. The key distinction is between acts of a kind that a private person might perform, which may be services, and acts that are distinctively governmental and could never be performed by a private person. A detainee may therefore receive services such as bedding, food, facilities and medical care even though the provider is exercising detention powers. A claim should proceed where such provision is arguable.

Mr Gichura, a wheelchair user, brought claims against the Home Office and Kalyx concerning the conditions of his immigration detention. He alleged breaches of sections 19 to 21 of the Disability Discrimination Act 1995 and section 6 of the Human Rights Act 1998. The human-rights aspect was not pursued on this appeal.

District Judge Hasan struck out the disability-discrimination claim, holding that the facilities supplied during detention were incidental to detention and were not services. On appeal, the Home Office accepted that access to facilities, bedding and medical services was arguably within section 19, while Mr Gichura accepted that reception and search procedures were outside it. Kalyx maintained that all the relevant functions were governmental. The central issue was whether ordinary detention-centre facilities could constitute services notwithstanding their connection with immigration detention.

Buxton LJ gave the leading judgment. Waller LJ and Smith LJ agreed. The appeal was allowed and the strike-out of the disability-discrimination claim was reversed.

1. Statutory scope. The ordinary meaning of services under section 19 of the Disability Discrimination Act 1995 includes the provision of facilities. The fact that the provider is performing a governmental function, or that the facilities are incidental to detention, is insufficient to exclude the activity from the Act. A public body or contractor may perform its public duty and provide a service at the same time.
2. Relevant distinction. R v ECO ex parte Amin [1983] 2 AC 818 concerned immigration control and the grant of permission to use facilities, rather than the direct provision of facilities. It did not justify treating all activities connected with detention as governmental and outside section 19. The authorities distinguish acts of a kind that a private person might perform from acts that a private person would never perform because they are distinctively governmental.
3. Application of the authorities. Savjani v IRC [1981] 1 QB 458 showed that public officials may both perform a public duty and provide a service. Farah v Metropolitan Police [1998] QB 65 similarly supported treating assistance and protection as services, while preserving a distinction for coercive police powers.
4. Detention facilities. A detainee is a member of a section of the public. Access to toilets and bathrooms, room access and egress, suitable bedding and medical services were therefore at least arguably services. Reception and search procedures were treated as outside section 19 by concession. The claim was to proceed on that basis. The formal order was: application granted; appeal allowed.

• Court of Appeal (Civil Division) — allowed the appeal and reversed District Judge Hasan’s strike-out of the disability-discrimination claim. The claim was to proceed on the basis that the disputed facilities and services were arguably within section 19 of the Disability Discrimination Act 1995.
• Central London Civil Justice Centre, District Judge Hasan — struck out the disability-discrimination claim, holding that facilities supplied during immigration detention were incidental to detention and did not constitute services.