Taylor, R v Secretary of State for Justice & Ors

The claimant, a 77 year-old prisoner serving life for murder, challenged his continued detention after the Parole Board directed his release to specific supervised accommodation (Ashdene) subject to funding of additional care and support. The court held that section 2 of the Offender Management Act 2007 imposes a broad function on the Secretary of State to ensure sufficient probation provision but does not create a duty to provide particular funding for an individual prisoner’s resettlement. The Care Act 2014 s.6 imposes a duty of cooperation with relevant partners, which requires good-faith discussions and a willingness to contribute where needs and rehabilitation purposes overlap, but did not in this case oblige the defendants to fund the claimant’s placement when the responsible local authority repeatedly found him ineligible. The court rejected arguments based on the Equality Act 2010 (direct, indirect discrimination and discrimination arising from disability), the duty to make reasonable adjustments and the public sector equality duty, finding insufficient evidence that disabled or older prisoners were put at a substantial disadvantage in respect of approved premises or that the defendants had failed to have due regard to equality obligations.

Background and facts:

• In 1974 the claimant murdered a 14 year-old and was sentenced to life with an 18 year tariff; he completed tariff in 1992 and has remained in custody for over 40 years.
• On 9 May 2014 the Parole Board directed release to Ashdene (an LHT hostel) once funding was in place for adult care needs and recommended licence conditions including permanent residence at Ashdene with staff supervision for movement outside.
• A Langley House Trust assessment identified additional support for the claimant costing £1,116.50 per week; NOMS maintained this was social care and would not fund it; Wakefield Council assessed the claimant as ineligible in July and October 2014 and, in July 2015, as having eligible needs which could be met without funding.
• Attempts to arrange alternative approved-premises placements (Wilton Place, St Joseph’s) were made but fell through for operational reasons or because Parole Board variation was required.

Nature of the claim and procedural posture:

• Proceedings for judicial review were issued on 18 March 2015 asserting (1) unlawful detention / article 5, (2) breach of statutory/public law duties to provide resettlement funding, (3) discrimination on grounds of disability/age, and (4) challenge to Wakefield Council’s October 2014 decision.
• Permission was initially refused on the papers but, on reconsideration, McGowan J (oral hearing 16 June 2015) granted permission on grounds 2 and 3 against the Secretary of State and NOMS and refused permission on grounds 1 and 4; Wakefield Council was discharged as a defendant and the Council and Parole Board were joined as interested parties.

Issues for decision:

1. Whether s.2 of the Offender Management Act 2007 or associated policy imposed a duty on the Secretary of State / NOMS to fund the claimant’s required extra support to secure release.
2. Whether s.6 of the Care Act 2014 obliged the defendants to negotiate and share funding responsibility where needs had dual purposes (rehabilitation and social care).
3. Whether public law duties (including published policy), the ancillary article 5 duty identified in Haney, or the Generic Parole Process required the state to secure supervised accommodation funding.
4. Whether the defendants unlawfully discriminated contrary to the Equality Act 2010 (direct, indirect, arising from disability), breached the duty to make reasonable adjustments, or failed the public sector equality duty (s.149).

Court’s reasoning and outcome:

• The court accepted there can be overlap between rehabilitation and social care needs and that some support had dual purposes, but concluded s.2 of the 2007 Act confers a general function to ensure sufficiency of probation provision and does not create an individual entitlement to specific funding; Irving was relied on to the same effect.
• Section 2(5) does not impose a duty to act where no duty otherwise exists. The Care Act s.6 requires good-faith cooperation with local authorities to avoid an offender falling between responsibilities and, where needs are arguably dual, to engage and be willing to contribute; however, where the local authority has assessed the claimant as ineligible there was no practical basis for collaborative funding and no breach was made out.
• Arguments seeking to extend the ancillary article 5 duty recognised in Haney so as to make supervised accommodation an enforceable right were not pursued (permission refused on that ground) and the court declined to extend that duty in any event for reasons of resource allocation and institutional competence.
• Claims under the Equality Act failed: there was no evidence of less favourable treatment for a decision or action taken because of disability; the evidence was insufficient to show a particular or substantial disadvantage caused by lack of suitable approved-premises accommodation or social-care funding; the practice of requiring residence in approved premises was a proportionate means to legitimate aims; no failure to make reasonable adjustments or to comply with the public sector equality duty was shown.

Result: The claim for judicial review was dismissed and the claimant’s application for permission to appeal was dismissed.

The claim is dismissed. The court held that (1) section 2 of the Offender Management Act 2007 imposes a general duty to ensure sufficiency of probation provision but does not create an obligation to provide particular funding for an individual prisoner’s resettlement; (2) the Care Act 2014 s.6 requires good-faith cooperation with local authorities and a willingness to engage and contribute where needs have dual rehabilitation and social-care aspects, but no breach was made out because the local authority had repeatedly assessed the claimant as ineligible; and (3) the Equality Act 2010 claims (direct, indirect discrimination, discrimination arising from disability, reasonable adjustments and the public sector equality duty) were not established on the evidence. The claim for judicial review was therefore dismissed for the reasons given.

Permission to proceed was initially refused on the papers. Following an oral reconsideration on 16 June 2015, McGowan J granted permission to proceed against the Secretary of State and NOMS on grounds 2 (breach of resettlement duties) and 3 (discrimination) but refused permission on grounds 1 (article 5) and 4 (challenge to Wakefield Council’s decision) and discharged Wakefield Council as a defendant. The present judgment is at first instance in the High Court (Administrative Court), neutral citation [2015] EWHC 3245 (Admin).