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

This judicial review concerned whether the Secretary of State breached the duty to make reasonable adjustments under the Equality Act 2010 (notably s.6, s.20 and s.21 read with s.29) in relation to a prisoner diagnosed with autism/Asperger's syndrome and other possible comorbid personality disorder. The court applied the three-stage approach derived from R (VC) v SSHD: identify the provision, criterion or practice (PCP) or physical feature; determine whether it puts the disabled person at a substantial disadvantage; and assess whether reasonable steps were taken to avoid that disadvantage.

The judge accepted that autism is a protected disability for the purposes of s.6 and that housing prisoners where there is no access to autism-specific services can amount to a PCP that places autistic prisoners at a substantial disadvantage. However, the court found that, judged in the particular factual and medical context of this claimant (including evidence of aggressive behaviour, disputed and evolving medical advice, and the claimant's refusal to engage with clinicians), the defendant had taken such reasonable steps as were required. Those steps included investigating transfers to specialist provision (HMP Dovegate, Beacon Project, HMP Norwich), engaging with clinical advice, and arranging a proposed transfer to HMP Wakefield which was nearing National Autistic Society accreditation and would provide specialist provision in due course. The court therefore held there was no failure to comply with the duty to make reasonable adjustments.

The claimant, an IPP prisoner returned to HMP Manchester from Ashworth Hospital, sought judicial review alleging failure by the Secretary of State to make reasonable adjustments under the Equality Act 2010 for his autism/Asperger's syndrome. Permission was granted by HHJ Pelling QC limited to grounds concerning reasonable adjustments (Ground 2) and compliance with specified prison policy (Ground 3).

Background and parties:

• The claimant has a long criminal history, an indeterminate sentence for public protection and a range of psychiatric reports diagnosing or suggesting autism/Asperger's syndrome and also indicating personality disorder and aggressive behaviour.
• The defendant is the Secretary of State for Justice, responsible for prison placements and services.

Nature of the claim and relief sought: The claimant sought declaration and relief that the prison service had breached its duty to make reasonable adjustments by failing to provide specialist autism services, appropriate training for staff, and by attempting to move the claimant out of segregation to mainstream wings.

Issues framed by the court:

• Whether autism (or Asperger's) was a protected disability under s.6 of the Equality Act 2010 (the court accepted it was).
• Whether the absence of access to autism-specific services in the prison estate was a PCP/physical feature placing autistic prisoners at a substantial disadvantage.
• Whether, in the circumstances of this claimant, the Secretary of State took such steps as it was reasonable to take to avoid the disadvantage (the third stage).

Court's reasoning:

• The court adopted the three-stage analytical framework from R (VC) and treated the duty to make adjustments as anticipatory but fact-sensitive (citing Finnigan and other authorities).
• The evidence showed evolving and sometimes conflicting clinical views: some clinicians emphasised autism warranting hospital treatment; others identified comorbid personality disorder and aggressive behaviour. The court concluded it was unnecessary to resolve which diagnosis had primacy but that the mixed medical picture and risk profile were relevant to what steps were reasonable.
• The Secretary of State had actively explored alternative placements (Dovegate, Beacon Project, Norwich, Westgate/Frankland) and, in light of recent work with the National Autistic Society, was preparing a specialist unit at HMP Wakefield approaching accreditation. Interim arrangements (transfer to Wakefield segregation and planned specialist unit) and targeted staff instruction were in place or proposed. The claimant had in part refused to engage with in-reach clinicians, which affected possible treatment pathways.
• The court weighed these steps against the claimant's particular needs and history and concluded that the defendant had discharged the legal burden of showing reasonable steps had been taken.

Disposition: The claim failed on the merits: no breach of the duty to make reasonable adjustments was found.

The claim is dismissed. The court accepted that autism is a protected disability and that lack of autism-specific services can constitute a PCP putting autistic prisoners at a substantial disadvantage, but concluded that, in the particular factual and medical context of this prisoner (including disputed diagnoses, evidence of aggressive behaviour and the claimant's refusal to engage with clinicians), the Secretary of State had taken such steps as were reasonable to avoid the disadvantage (investigating transfers, engaging clinical advice, proposing transfer to HMP Wakefield approaching accreditation and providing targeted staff instruction). Accordingly there was no failure to comply with the Equality Act duty to make reasonable adjustments.

Permission to apply for judicial review was granted by HHJ Pelling QC by order dated 8 February 2018 in relation to Grounds 2 (reasonable adjustments under the Equality Act 2010) and 3 (policy compliance). The matter was heard at first instance in the Administrative Court, High Court of Justice (QBD) resulting in this judgment: [2018] EWHC 1905 (Admin).