Freedom from Torture & Anor, R (on the application of ) v Secretary of State for the Home Department

A public authority may owe a common-law duty to consult where its repeated and consistent conduct has established an expectation of consultation before material adverse policy change. In exceptional cases, consultation may also be required because proceeding without it would be conspicuously unfair. The Public Sector Equality Duty under section 149 of the Equality Act 2010 must be addressed when a policy change is contemplated, and a later equality assessment cannot retrospectively cure an earlier failure. The duty of inquiry requires reasonable steps to obtain plainly relevant information before adopting or maintaining a policy. The court held that the removal of protective asylum-accommodation provisions for vulnerable survivors was unlawful because the Secretary of State failed to consult, assess equality impacts, monitor them, and make necessary inquiries.

Freedom from Torture and the Helen Bamber Foundation challenged changes to the Secretary of State’s Allocation of Asylum Accommodation policy. Version 11 removed or weakened protections concerning single-room accommodation, medical-adviser referrals and dispersal, replacing them with case-by-case suitability assessments and additional evidential requirements. Versions 12 and 13 maintained those changes.

The claim alleged breach of a common-law duty to consult, the Public Sector Equality Duty under section 149 of the Equality Act 2010, and the duty of inquiry described in Tameside. The issues were whether prior engagement created a duty to consult, whether the equality assessments adequately addressed the impact on vulnerable asylum seekers, and whether the Secretary of State had sufficiently informed herself before adopting and maintaining the policy.

1. Duty to consult. The Home Office had maintained, for over two decades, a clear and collaborative practice of consulting the claimants on material policy changes affecting their patients. That practice was sufficiently established to be tantamount to an assurance that consultation would occur. It was not broken by the absence of consultation on Versions 5 to 10 because those changes did not adversely alter the relevant protections. Version 11 was a fundamental adverse change introduced without consultation, in breach of the duty.
2. Alternatively, the circumstances would have made it conspicuously unfair to proceed without consultation. The common-law categories identified in [2015] 3 All ER 261 are distinct routes grounded in procedural fairness.
3. PSED. The duty under section 149 of the Equality Act 2010 arose when the changes were contemplated. The Secretary of State had to assess their likely adverse impact, identify mitigation, and possess sufficient information before deciding. The January 2024 and March 2025 equality assessments failed to address the removal of the protective presumption against room-sharing, the evidential burden placed on vulnerable asylum seekers, and the relevant clinical and practical risks. Failure to monitor the continuing effects aggravated rather than cured the breach.
4. Duty of inquiry. The Secretary of State failed to obtain or analyse obvious clinical, operational and safeguarding material concerning the foreseeable impact of removing the protections. The decision was therefore taken without sufficient information and breached the Tameside duty.
5. The court did not determine the merits of the policy choices themselves. The impugned changes in Versions 11, 12 and 13 were unlawful. Questions concerning Version 14 and the January 2026 equality assessment were reserved for remedy.

First-instance judicial review. No prior decision in the same proceedings is stated.