Garry Cooper & Anor, R (on the application of) v Secretary of State for Justice

The duty to make reasonable adjustments is assessed objectively and contextually. A public authority may discharge the duty by providing reasonable alternative methods, including discretionary accumulated prison visits, where those methods sufficiently address the disadvantage in the circumstances. Prison security, offending, risk, sentence length, location of associates and the practical operation of visits are relevant considerations.

A conceded breach of the Public Sector Equality Duty does not require relief where the defendant proves that the outcome would highly likely have been substantially the same. Prison allocation may also be in accordance with law under Article 8 where the governing discretion is sufficiently clear and balances family contact with public safety.

The claimants sought judicial review of the refusal to transfer the first claimant, a life prisoner held in a maximum-security dispersal prison, to HMP Lowdham Grange. The proposed transfer was intended to enable his severely disabled mother to visit him more easily.

Permission was granted on four grounds: failure to make reasonable adjustments, breach of the Public Sector Equality Duty, breach of Article 8 of the Convention, and irrationality. The court considered whether accumulated visits, telephone and video contact were reasonable adjustments; whether relief should be refused despite the conceded equality-duty breach; and whether the prison arrangements unlawfully interfered with family life.

1. Reasonable adjustments and irrationality. Accumulated visits could constitute a reasonable adjustment even though they were available to prisoners without disabled relatives. Their discretionary character meant that they were not an entitlement, but the defendant had considered the claimants’ particular circumstances, including disability and security risk.
2. The adjustment had to be assessed objectively and in context. Relevant matters included the nature of the service, the provider’s resources, the effect of the disability, practical reliability and the availability of reasonable alternative methods. The evidence showed that accumulated visits had taken place at HMP Lowdham Grange and HMP Dovegate, notwithstanding some operational cancellations. Telephone and video contact were also available.
3. The defendant proved that permanent transfer to HMP Lowdham Grange was not reasonable. Mr Cooper’s serious offending, leadership of a county-lines gang, long remaining sentence, risk of exploitation and the presence of a co-offender at Lowdham Grange justified continued allocation to a dispersal prison. Temporary transfers for accumulated visits provided a proportionate balance between family contact and security.
4. Public Sector Equality Duty. The defendant conceded that due regard had not been given to the duty under Equality Act 2010, section 149. Relief was nevertheless refused under section 31(2A) of the Senior Courts Act 1981, because it was highly likely that a different decision-maker would reach the same result. The exceptional-public-interest submission under section 31(2B) failed.
5. Article 8. The governing allocation framework, the National Allocation Protocol and rule 4 of the Prison Rules 1999 provided a sufficiently clear legal basis for the discretion. The claimants had not shown that visits were very difficult or impossible, given the accumulated visits that had occurred. Alternatively, any interference was lawful and proportionate to public safety and prevention of disorder or crime.
6. The judicial review claim was dismissed.