Campbell & Anor, R (on the application of) v The Governor of HMP Wakefield

A prison governor must comply with the mandatory national policy governing prisoners’ distance-learning applications. A local protocol is unlawful if it materially narrows the policy’s eligibility criteria. The requirement to show appropriate learning and attainment must be assessed by reference to the course sought, rather than by requiring unrelated qualifications in literacy, numeracy and information and communication technology. Decision-makers must consider relevant evidence of ability, potential and motivation and must not substitute arbitrary local criteria. Where disability is relied on, the duty to make reasonable adjustments requires a prisoner-specific, fact-sensitive assessment.

The claimants, prisoners at HMP Wakefield, sought judicial review of refusals to allow them to undertake a distance-learning course leading to an NCFE level 2 qualification in human anatomy and physiology.

They argued that the refusals unlawfully applied a Wakefield protocol which imposed requirements additional to those in the national policy contained in PSI 33/2010 and rule 32 of the Prison Rules. Mr Campbell also alleged breach of the reasonable-adjustment duties under the Equality Act 2010. The central issue was whether the local protocol materially derogated from the national policy.

1. Claims allowed. The decisions refusing permission to undertake the distance-learning course were quashed. Costs followed the event, subject to a public funding assessment.
2. The national policy in PSI 33/2010, issued under rule 32 of the Prison Rules, was mandatory. A governor or appointed representative had no power to depart from it in any material particular.
3. The requirement in paragraph 2.2 of the PSI to demonstrate appropriate learning and attainment at or above level 2 had to be read in the context of the course sought. Level 2 or level 3 qualifications in functional literacy, or in a subject requiring comparable literacy, could constitute appropriate evidence for a course requiring basic English skills. The PSI did not require level 2 qualifications in literacy, numeracy and information and communication technology in every case.
4. The Wakefield protocol materially narrowed the PSI by making further, higher or distance learning conditional on achieving level 2 qualifications in all three functional skills. It was therefore an unlawful departure from the national policy. The resulting decisions failed to consider relevant evidence and took account of an immaterial consideration.
5. Evidence of potential and motivation under paragraph 2.2 could be established in ways other than passing assessments in all three functional skills. Previous successful completion of a higher-level distance-learning course and other qualifications could be relevant.
6. Operational convenience, resource pressures and the possibility that applications might increase could not justify unilateral narrowing of the mandatory eligibility criteria. Future decisions should be fact-sensitive and based on the paragraph 2.2 criteria.
7. The alternative disability issue was not determined. The court observed that, where disability was alleged to make distance learning more suitable than classroom learning, the defendant would need to assess the disability and the claimed reasonable adjustment on an individual, fact-sensitive basis under the Equality Act 2010.