R (Katherine Rowley) v Minister for the Cabinet Office

This judicial review concerned whether the Government breached duties under the Equality Act 2010 by failing to provide British Sign Language (BSL) interpretation for two Data Briefings (21 September 2020 and 12 October 2020) and whether the Government’s continued use of in-screen rather than on-platform BSL interpreters for briefings contravened the reasonable adjustments duty (s.29(7)(a)) or the public sector equality duty (s.149(1)). The court applied the statutory three‑requirement test for reasonable adjustments (s.20/s.21) and the Code of Practice, treating BSL as an archetypal auxiliary service.

The court held that: (a) the absence of any BSL interpretation for the two Data Briefings amounted to a breach of the reasonable adjustments duty and therefore discrimination against the claimant; (b) the claimant suffered detriment from inability to access the information via live subtitles; and (c) a declaration of discrimination was appropriate and assessment of damages was to be transferred to the county court. The court also held that, on the present facts and having considered the Government’s PSED Assessment, the Defendant was not in continuing breach of the PSED nor presently in breach of the reasonable adjustments duty by using in-screen (rather than on-platform) BSL interpreters for briefings, because in‑screen provision together with other accessibility measures constituted a reasonable alternative in the circumstances.

This claim was a first‑instance judicial review of Government arrangements for BSL interpretation of live Covid‑19 briefings. The claimant, a Deaf BSL user, challenged (i) the absence of any BSL interpretation for two Data Briefings (21 September and 12 October 2020) and (ii) the Government’s ongoing policy of providing BSL interpretation as an in‑screen feed rather than by an on‑platform interpreter. The statutory duties in issue were the reasonable adjustments duty (Equality Act 2010 s.29(7)(a) together with the third requirement in s.20(5)/(6)) and the public sector equality duty (s.149(1)).

The claimant sought declarations, a mandatory order requiring on‑platform interpreters and damages. The court framed the dispute as a 'then and now' claim: whether the historic absence of any BSL interpretation for the two Data Briefings constituted discrimination and, separately, whether there was a present and continuing failure to give due regard under the PSED or to make reasonable adjustments by failing to use on‑platform interpreters.

The court applied the statutory trigger test for auxiliary aids (s.20(5)) and the Code of Practice, treating BSL interpretation as a paradigm auxiliary service. On the historic ("then") point the court concluded that Deaf BSL users would be put at a substantial disadvantage without BSL interpretation, that the claimant had evidenced detriment (unable to follow subtitles), and that the Defendant had not discharged the burden of showing reasonable steps had been taken; accordingly the absence of any BSL interpretation for the two Data Briefings amounted to discrimination. The court granted a declaration and transferred assessment of damages to the county court.

On the live ("now") point the court considered the PSED Assessment prepared for Government and the practical trade‑offs between in‑screen and on‑platform provision. The court accepted that in‑screen provision, together with arrangements with the BBC/Red Bee Media and other accessibility measures, was a reasonable alternative in present circumstances and that the Defendant was not in continuing breach of the PSED nor of the reasonable adjustments duty. The court therefore dismissed the remainder of the claim. The judgment explains the anticipatory and continuing nature of the reasonable adjustments duty, burden‑shifting under s.136, and the relationship between the PSED (a process duty) and the substantive reasonable‑adjustments inquiry.

Claim allowed in part. The court declared that the Defendant discriminated against the Claimant by failing to make reasonable adjustments (s.20(5)) in respect of the absence of any BSL interpretation for the Data Briefings on 21 September 2020 and 12 October 2020 and transferred assessment of damages to the county court; but the court dismissed the rest of the claim, finding no present or continuing breach of the PSED or of the reasonable adjustments duty in relation to the Government's use of in‑screen rather than on‑platform BSL interpreters.

Permission for judicial review was granted by Johnson J on 26 February 2021. The claim was heard in the High Court (Administrative Court, Leeds) and determined by Fordham J on 28 July 2021. No appeal history is recorded in the judgment.