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

A public authority’s duty to make reasonable adjustments is anticipatory. Where a provision, criterion or practice places disabled persons at a substantial disadvantage, the authority must consider a potentially reasonable adjustment and show why it is not reasonable. The duty does not require impracticable or disproportionate measures. A public sector equality duty is separate and substantive: due regard must be positively demonstrated through a conscious and rigorous approach. However, under Senior Courts Act 1981, section 31(2A), the High Court must refuse judicial-review relief, including a declaration, where it is highly likely that the outcome would not have been substantially different without the unlawful conduct, unless exceptional public interest justifies relief.

The claimants sought judicial review of the Secretary of State’s refusal to transfer the second claimant, a long-term category B prisoner, from HMP Isle of Wight to HMP Exeter. His wife had fibromyalgia and could not realistically undertake regular journeys to the Isle of Wight. The claim alleged breach of the public-law duty arising from the Prison Rules 1999, the duty to make reasonable adjustments under the Equality Act 2010, and the public sector equality duty under section 149.

The Secretary of State relied on the distinction between local and training prisons and offered temporary Accumulated Visits at Exeter. The central issues were whether that arrangement was sufficient, whether the prison policy was irrational or unlawful, and whether the failure to demonstrate due regard under section 149 entitled the claimants to a formal declaration.

1. Public-law duty. Rule 35(2) of the Prison Rules 1999 conferred an entitlement on the prisoner to receive visits, not an entitlement to receive visits from a particular person. The Secretary of State’s rational distinction between 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 resources necessary to enable release of an IPP prisoner.
2. Reasonable adjustments. The prison classification and allocation policy was a provision, criterion or practice. It placed disabled persons who found car travel difficult at a substantial disadvantage. The proposed transfer to a nearer local prison was potentially reasonable, but the Secretary of State convincingly showed that long-term transfer was impracticable and would harm local-prison capacity, vulnerable-prisoner accommodation, rehabilitation and training. Accumulated Visits were a sufficient adjustment in the circumstances. The duty was anticipatory, as explained in Finnigan v Chief Constable of Northumbria Police [2013] EWCA (Civ) 1191.
3. Public sector equality duty. Section 149 imposed a positive duty requiring a conscious, rigorous and evidenced consideration of equality issues. The Secretary of State had not demonstrated the required positive due regard when formulating or applying the relevant policy, despite the objective reasonable-adjustment duty being satisfied. The court relied on Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345.
4. Relief. Section 31(2A) of the Senior Courts Act 1981, inserted by the Criminal Justice and Courts Act 2015, applied to declarations. It was highly likely that the outcome for the claimants would have been the same had due regard been given. No exceptional public interest under section 31(2B) justified disregarding the statutory bar. A declaratory judgment could nevertheless record the breach without making a formal declaration, following the approach discussed in Logan v London Borough of Havering [2015] EWHC 3193 (Admin).
5. The whole claim for judicial review was dismissed. Permission to appeal was refused.

First-instance judicial review proceedings in the Administrative Court. Permission to appeal was refused by the judge.