Hawke, R (On the Application Of) v Secretary of State for Justice

A public authority’s duty to make reasonable adjustments requires a fact-sensitive assessment of the provision, criterion or practice, the substantial disadvantage caused to disabled persons, and the practicability and proportionality of the proposed adjustment. An alternative arrangement may satisfy the duty where the suggested adjustment would impose disproportionate operational or financial burdens. The public sector equality duty under the Equality Act 2010 is a positive duty requiring conscious, rigorous and evidenced consideration. However, section 31(2A) of the Senior Courts Act 1981 requires relief, including a declaration, to be refused where it is highly likely that the outcome would not have been substantially different without the unlawful conduct, unless exceptional public interest justifies disregarding that requirement.

The claimants were a long-term category B prisoner and his disabled wife. The wife’s fibromyalgia made travel to the prisoner’s prison on the Isle of Wight realistically impossible at proportionate cost. The claim challenged the refusal to transfer the prisoner permanently to HMP Exeter, a nearer local prison.

The claim was advanced on public law grounds, under the reasonable-adjustment provisions of the Equality Act 2010, and under the public sector equality duty in section 149. The Secretary of State offered temporary transfers for accumulated visits and relied on the operational distinction between local and training prisons. The central issues were whether that arrangement complied with the reasonable-adjustment duty and whether the public sector equality duty had been discharged.

1. Public law duty. Rule 35 of the Prison Rules 1999/728 created a public law duty concerning the prisoner’s entitlement to receive visits. That entitlement was to receive visits, not to receive visits from a specified person. The Secretary of State’s rational policy distinguishing local and training prisons did not breach that duty. R (Walker) v Secretary of State for Justice [2008] EWCA (Civ) 30 was distinguishable because it concerned a failure to provide resources necessary for the release of IPP prisoners.
2. Reasonable adjustments. The classification and allocation policy was a provision, criterion or practice which placed disabled family members who found car travel difficult at a substantial disadvantage. A transfer to a nearer local prison was a potentially reasonable adjustment. However, the evidence established that permanent transfer of a long-term vulnerable prisoner to Exeter would deprive other prisoners of necessary local-prison places, restrict regimes, and deny the prisoner appropriate rehabilitation and training. Temporary accumulated visits were therefore the most that could reasonably be required. The claim under section 20 failed. The anticipatory nature of the duty was confirmed by Finnigan v Chief Constable of Northumbria Police [2013] EWCA (Civ) 1191.
3. Public sector equality duty. The Secretary of State had not demonstrated the positive, substantive and rigorous consideration required by section 149. The evidence showed only scant and general consideration of disability, including no specific consideration of disabled family members under the accumulated-visits policy. The approach required by Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 had not been followed.
4. Relief. Although the court considered that section 149 had been breached, section 31(2A) of the Senior Courts Act 1981 made refusal of relief mandatory because the outcome would have been highly unlikely to differ. The exceptional-public-interest exception in section 31(2B) was not established. The whole claim for judicial review, including damages and the contemplated declaration, was therefore dismissed.