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

The Supreme Court held that the current distribution of Approved Premises (APs) in England and Wales constitutes direct sex discrimination against women contrary to section 13(1) of the Equality Act 2010 because women face a materially greater risk of being placed far from home than men. The court treated placement and the provision of APs as "treatment" for the purposes of the Act and rejected arguments that the comparator or material differences between men and women made the comparison inappropriate.

The Secretary of State relied on the exception in paragraph 26 of Schedule 3 to the Equality Act 2010 (which permits separate services for men and women where a joint service would be less effective) but the court concluded that the Ministry of Justice had not shown that the limited provision was a proportionate means of achieving a legitimate aim. The public sector equality duty breach found by Cranston J reinforced that the respondent had not properly considered impacts on women and could not show justification.

Background and facts:

• The appellant, a woman released on licence, was required as a condition of release to live in an Approved Premises (AP) in Bedford. She lived most of her adult life in London and sought declarations that the lack of a women's AP in London constituted unlawful sex discrimination under the Equality Act 2010 and/or under articles 8 and 14 of the European Convention on Human Rights, and that the Secretary of State had breached the public sector equality duty in section 149 of the Equality Act.
• APs are single sex establishments. There were 94 APs for men (including in London) but only six for women, with none in London. The consequence is that women are much more likely than men to be required to reside many miles from home.

Procedural posture:

• The claim began by judicial review in 2013. Cranston J dismissed the discrimination claim but held the Secretary of State had breached the public sector equality duty ([2013] EWHC 4077 (Admin)). The Court of Appeal dismissed the discrimination claim ([2015] EWCA Civ 328). The case reached the Supreme Court on the issue of whether the present distribution of APs is unlawful sex discrimination.

Issues framed:

• Whether the configuration and provision of APs constitutes direct or indirect sex discrimination under the Equality Act 2010 (particularly sections 13, 19 and 29);
• Whether the exception in paragraph 26 of Schedule 3 to the Equality Act 2010 (permitting separate services for men and women where a joint service would be less effective) justified the different provision; and
• What relief, if any, is appropriate.

Reasoning and decision:

• The court found the relevant comparator circumstances were offenders released on licence required to live in APs; those circumstances are the same for men and women so the comparison was apt. The fact that some women might not suffer the detriment did not preclude a finding of direct discrimination where a protected characteristic (sex) produces a materially greater risk of disadvantage.
• The court accepted that separate APs for women may be justified in principle (a joint service would be less effective), and that the smaller demand from women made single-sex provision in principle practicable. However, the decisive question was proportionality under paragraph 26: whether the limited provision was a proportionate means of achieving a legitimate aim.
• Because the Secretary of State had not addressed the impacts on women, assessed the significance of the disadvantage or considered reasonable mitigations or alternative configurations, she could not show that the present distribution was proportionate. Cranston J's previous finding that the public sector equality duty had been breached reinforced that lack of proper consideration.
• The court therefore allowed the appeal to the extent of granting a declaration that the provision of APs constitutes direct sex discrimination contrary to section 13(1) of the Equality Act 2010 and that no justification under paragraph 26 of Schedule 3 had yet been shown by the Secretary of State; the declaration made clear that it remains open to the Secretary of State to justify particular individual claims in the county court.

Wider context: The court noted the broader concerns about the marginalisation of women in the criminal justice system and that AP distribution raises systemic equality issues, but confined its order to a declaration because justification had not been established rather than finding the arrangements necessarily unlawful in all circumstances.

Appeal allowed. The Supreme Court held that the Secretary of State's provision and distribution of Approved Premises constitutes direct sex discrimination under section 13(1) of the Equality Act 2010 because women are at a materially greater risk of being placed far from home. Although separate single-sex APs can be justified in principle under paragraph 26 of Schedule 3, the respondent had not demonstrated that the limited provision was a proportionate means of achieving a legitimate aim, and Cranston J's finding of breach of the public sector equality duty showed that the Ministry had not properly addressed impacts on women. The Court therefore granted a declaration to that effect, leaving open the possibility of justification in individual cases or on further evidence.

Appeal from the Court of Appeal ([2015] EWCA Civ 328) following judicial review in the Administrative Court (Cranston J) [2013] EWHC 4077 (Admin).