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

The claimant, a protected party with severe learning, autistic and physical disabilities, sought judicial review of the defendant local authority’s asserted policies and practices concerning (i) the recording of service users' biological sex and (ii) the operation of a system to ensure same-sex personal and intimate care for female service users. The claimant relied on the Care Act 2014 duties to promote well‑being (including protection from abuse and personal dignity), the public sector equality duty under section 149 of the Equality Act 2010, the prohibition on indirect discrimination under section 19 of the Equality Act 2010, and positive obligations under Articles 3 and 8 ECHR (engaged via the Human Rights Act 1998).

The court held that the Care Act requires individualised, fact-sensitive needs assessments and support plans rather than a general duty to operate a single, overarching system to guarantee same-sex intimate care in all cases. The court found no basis to recognise the claimant’s novel “Combined Duty” (a duty to operate a system that ensures or has the objective of ensuring same-sex intimate care by default) and concluded that the defendant’s existing arrangements, assessments, commissioning processes, contractual terms for providers, regulation by the CQC and quality‑assurance measures provide adequate and effective safeguards under Articles 3 and 8. The court also held that the defendant does record biological sex where it is relevant, the claimant’s sex has been recorded in her care plan, and there was no established indirect discrimination under section 19. The 29 January 2024 letter from the authority was unsatisfactory in parts but did not found the policies now challenged. The application for judicial review was dismissed.

Background and parties: The claimant (VRP), a 19‑year‑old woman with severe physical, learning and autistic disabilities and a litigation friend, challenged the Royal Borough of Kingston upon Thames (Adult Social Care) about the authority’s approach to recording service users' biological sex and the availability of same‑sex personal and intimate care. The claimant sought declarations and quashing of parts of a response letter dated 29 January 2024. MacDonald J made an anonymity order; permission to apply for judicial review was given by Foster J.

Nature of the claim and relief sought: The claim challenged (i) the defendant’s policy or practice of not recording biological sex in care records, (ii) a mandatory field for gender recording (later abandoned as relied upon), and (iii) the defendant’s alleged refusal or failure to operate a system that ensures same‑sex intimate care for female service users. Relief sought included declarations that the defendant’s practices were unlawful and quashing of the 29 January 2024 decision letter.

Issues framed by the court:

• Whether duties under the Care Act 2014, the Equality Act 2010 (including the public sector equality duty) and the Human Rights Act 1998 combine to create a duty to operate a system that ensures same‑sex personal/intimate care for female service users (the "Combined Duty").
• Whether the defendant must record biological sex of service users and whether that duty is met.
• Whether the defendant’s system for assessment, support planning and commissioning of personal care is adequate to fulfil any such duty.
• Whether the 29 January 2024 letter constituted unlawful policy or an unlawful decision.

Evidence: The claimant relied on witness statements from her mother and solicitors and expert reports about risks to disabled women. The defendant relied on detailed social‑work and management evidence (including that the Integrated Adults System (IAS) records gender, that the claimant’s sex was recorded in her care plan, that the authority uses established assessment and support planning processes, commissioning via a brokerage process, contractual terms, CQC regulation and QA monitoring). A draft operational guidance was said to be in preparation.

Court’s reasoning (concise):

• The Care Act 2014 imposes an individualised duty to promote well‑being through needs assessments and support plans; it does not itself impose a standalone, general duty to operate a system that guarantees same‑sex intimate care in all cases.
• Article 8 (and Article 3 at the lower systems level) can impose a positive systems obligation to have adequate and effective safeguards. The court assessed whether the defendant’s existing legal and administrative framework and its practical implementation provided such safeguards and concluded they did.
• The defendant’s evidence showed that where sex is relevant it is recorded within the assessment and care plan, the claimant’s sex was recorded as female, and same‑sex intimate care is provided in practice except in appropriate and limited exceptions (e.g. urgent need, no same‑sex carer available, best interests considerations). The court accepted this evidence.
• The indirect discrimination claim under section 19 failed because (a) the defendant did not refuse same‑sex care in practice, (b) the pleaded provision/criterion/practice could not be shown to put female service users at a particular disadvantage in the defendant’s actual operation, and (c) the claimant was not currently receiving direct care from the authority such that the PCP had been applied to her.
• The 29 January 2024 letter contained unclear or erroneous passages but did not in the end embody the policies now challenged; quashing relief was therefore inappropriate.

Conclusion: The claimant’s proposed novel ‘‘Combined Duty’’ was rejected and the judicial review claim was dismissed. The court noted that preparing clear written operational guidance may be desirable but that the current absence of the particular written policy urged by the claimant was not unlawful.

First instance: The application for judicial review is dismissed. The court concluded there is no novel legal duty (the "Combined Duty") requiring the local authority to operate a system that, by default, ensures same‑sex intimate personal care for female service users; the Care Act 2014 requires individualised assessments and support plans, and the defendant’s assessment, commissioning, contractual and regulatory framework, together with its practices, provided adequate and effective safeguards under Articles 3 and 8 and complied with the public sector equality duty and discrimination law in the circumstances. The 29 January 2024 letter was unsatisfactory in parts but did not establish the policies now challenged.

Procedural history at first instance: anonymisation order made by MacDonald J (17 May 2024); permission to apply for judicial review granted by Foster J (16 August 2024); claim filed 26 April 2024; hearing before Heather Williams J on 6 February 2025 leading to this approved judgment dated 7 March 2025. No appellate history set out in the judgment.