Fajr Ellis, R (on the application of) v Secretary of State for Education & Anor

Prisoners do not have an automatic entitlement to education facilities identical to those available in the community. Differences in funding, library access, communications and information technology may be lawful where they reflect prison security or the different living costs of prisoners and remain proportionate.

Article 2 of Protocol 1 does not generally require the provision of education in prison, but available educational access must not be subject to arbitrary or unreasonable restrictions. A prison decision concerning educational technology must be based on a proper construction of the governing compact, take relevant evidence into account and follow a fair and rational process.

The claimant, a serving prisoner undertaking a research-based postgraduate degree, challenged the operation of the Education (Postgraduate Master’s Degree Loans) Regulations 2016, the general adequacy of educational facilities and restrictions on his use of a Chromebook at HMP Hull.

He alleged breaches of Article 2 of Protocol 1 and Article 14 of the European Convention on Human Rights, failures to comply with domestic statutory and policy duties, and public law errors in the Chromebook decisions. He also sought to introduce later complaints concerning HMP Isle of Wight. The court considered timeliness, the impermissibility of a rolling judicial review, the lawfulness of general educational restrictions and the January-April 2022 Chromebook decisions.

1. New material and rolling review. The claimant could not expand the proceedings to challenge later incidents or decisions at HMP Isle of Wight. Judicial review ordinarily concerns discrete decisions on the evidence available at the relevant time. A rolling or evolving challenge was inappropriate, particularly where prison education was devolved to individual governors and the claimant’s circumstances had changed. The court applied R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605, citing R (Spahiu) v Secretary of State for the Home Department [2018] EWCA Civ 2604.
2. Student-loan challenge. The challenge to the 2016 Regulations was brought substantially out of time. In any event, the distinction between prisoners and community students was rationally based on prisoners’ differing living expenses. There was no equal comparator in the circumstances. The restriction was neither arbitrary nor unreasonable and did not breach Article 2 of Protocol 1.
3. General access challenge. Operational difficulties, including delays, indirect communications, security checks and limits on materials, did not establish systemic under-provision or denial of education. The facilities, workarounds and mitigation provided were adequate. Differences between prison and community education were not unlawful merely because they produced a different level or form of access.
4. Chromebook decision. The compact required use for distance-learning courses and did not confine permitted work to assignments expressly requested or expected by a tutor. It encompassed research or potential projects connected with the course. The decision-makers adopted an unduly narrow interpretation, failed to engage properly with relevant evidence from the claimant’s tutor, and reached an unsustainable and procedurally unfair conclusion. The final decision was quashed as unlawful under domestic public law.
5. The temporary loss of IT access and study papers during security investigations was regrettable but proportionate in the circumstances. It did not constitute an unjustifiable or arbitrary restriction contrary to Article 2 of Protocol 1. The regulations and general access challenges were rejected; the Chromebook challenge succeeded only as a public law challenge.