Gill, R (on the application of) v Secretary of State for Justice

A public authority must make reasonable adjustments where its practices, policies or procedures make it impossible or unreasonably difficult for a disabled person to obtain a benefit. In the prison context, this may require alternative offending-behaviour work, auxiliary support or transfer where a prisoner’s disability prevents access to mainstream programmes. Offending-behaviour programmes are neither necessary nor sufficient for release, but where such work has become part of a prisoner’s sentence plan, the authority must take reasonable steps to provide some suitable means of undertaking it. General progress by other means does not cure a failure to provide comparable access. A public authority must also comply with applicable policies unless it has good and clear reasons for departure.

The claimant was a life prisoner with a learning disability who had served more than twice his tariff. His intellectual functioning and literacy difficulties prevented access to the offending-behaviour programmes repeatedly identified in his sentence planning and Parole Board reviews as relevant to risk reduction. He sought judicial review, alleging breaches of the Disability Discrimination Act 1995 and public law duties arising from prison policies.

The central issues were whether the Secretary of State had unlawfully failed to make reasonable adjustments or provide auxiliary assistance enabling access to offending-behaviour work, and whether he had departed from applicable policies without good reason.

1. Claim succeeded. The court granted a declaration that the Secretary of State had breached his duties by failing to take steps enabling the claimant to undertake some type of offending-behaviour work. No mandatory order was made because the Secretary of State was expected to act on the declaration and stated that assessment and related steps were in progress.
2. The Secretary of State had practices, policies and procedures governing access to offending-behaviour programmes. Applying the six-step approach identified in R (on the application of Lunt) v Liverpool City Council [2009] EWHC 2356 (Admin), those practices made access impossible or unreasonably difficult for the claimant because of his intellectual disability.
3. The duty was to take reasonable steps in all the circumstances. Such steps could include adapted programmes, education, one-to-one or other auxiliary support, and transfer to an establishment better able to meet his needs. The Secretary of State had not adequately explored those options. The claimant’s intermittent disengagement did not defeat the claim, since it was substantially explained by unsuitable provision and frustration.
4. The broad and beneficial interpretation required by Gichura v Home Office [2008] EWCA Crim 697 supported this approach. The court did not need to decide whether the claim also fell within the services provisions, because it was properly addressed under the public-authority provisions of the 1995 Act.
5. Offending-behaviour programmes were neither legally nor practically necessary or sufficient for release. Nevertheless, they had become, at least prospectively, part of the claimant’s sentence plan. The Secretary of State therefore had to provide a reasonable opportunity for the claimant to undertake some suitable offending-behaviour work. His progress through improved behaviour and employment did not provide an adequate substitute.
6. The public law claim also succeeded. The relevant prison policies required reasonable adjustments and access to interventions enabling disabled prisoners to follow sentence plans and satisfy parole conditions. The Secretary of State had departed from those requirements without good and clear reasons.