VRP, R (on the application of) v The Royal Borough of Kingston Upon Thames

A local authority’s duties under the Care Act 2014 require an individualised, fact-sensitive assessment of a service user’s needs, wishes, feelings and circumstances. They do not impose a general duty to operate a system guaranteeing same-sex personal or intimate care for female service users, subject to stated exceptions. The Article 8 systems duty requires an appropriate administrative framework with adequate and effective safeguards, but does not require an absolute guarantee. A public authority’s practice is not indirectly discriminatory where the alleged provision, criterion or practice is not established, does not put the protected group at a disadvantage, or has not been applied to the claimant. The public sector equality duty is a duty to have due regard, rather than a duty to achieve a particular outcome.

The claimant, a 19-year-old woman with severe physical, learning and autistic disabilities, required full-time care including intimate personal care. Her parents were concerned that, if the defendant eventually arranged her care, it might not provide care from female carers or record her biological sex. The claim challenged the defendant’s alleged absence of a same-sex-care policy, its recording practices and the contents of a letter dated 29 January 2024. By the hearing, the defendant accepted that same-sex care could lawfully be provided, that the claimant’s sex was recorded and that its system allowed same-sex care. The central issues were whether a combined statutory and Convention duty required a system designed to ensure same-sex care, whether the defendant breached the PSED or section 19 of the Equality Act 2010, and what relief, if any, should follow.

1. Application dismissed. None of the pleaded grounds of challenge was made out, and the claimant was not entitled to declaratory relief or relief in respect of the 29 January 2024 letter.
2. The Care Act 2014 requires a fact-sensitive assessment and care plan tailored to the individual’s needs, wishes, feelings, beliefs and circumstances. Although personal dignity and protection from abuse are central aspects of well-being, the Act does not impose the proposed general Combined Duty. Such a duty could conflict with the Act’s multi-factorial and individualised scheme.
3. The Article 3 systems duty was not triggered. The evidence did not establish risks reaching the minimum threshold for inhuman or degrading treatment. In any event, if the duty arose, it required risk reduction to a reasonable minimum, not an absolute guarantee, and was satisfied by the existing arrangements.
4. The circumstances did engage the lower-level Article 8 systems duty. The question was whether adequate and effective safeguards existed. The court accepted evidence that relevant sex information and preferences were captured in assessments and care plans, communicated to providers, and that same-sex care was provided in practice except in appropriate exceptional circumstances. Regulation, commissioning, contractual monitoring, quality assurance and complaints processes reinforced those safeguards.
5. The section 19 claim failed for multiple independent reasons. The alleged refusal to provide same-sex care was not borne out by the evidence. The broader description of the defendant’s system was too imprecise to identify a relevant PCP. In any event, female service users were not shown to be disadvantaged, the PCP had not been applied to the claimant, and no particular disadvantage to her was established.
6. The PSED did not create the alleged substantive duty. The defendant’s records indicated service users’ sex where relevant to Part 1 functions under the Care Act 2014, and the defendant was complying with the PSED. A separate sex field might provide practical benefit but its delayed introduction was not materially unlawful.
7. The 29 January 2024 letter was unsatisfactory and contained an apparent misunderstanding of the Equality Act 2010, but it did not set out the policies challenged in the reformulated claim. No relief was appropriate.