Gichura v Home Office & Anor [2008] EWCA Civ 697

Case No B2/2007/1388

[2008] EWCA Civ 697

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE

(DISTRICT JUDGE HASAN)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Tuesday, 20 th May 2008

Before

LORD JUSTCE WALLER

LORD JUSTICE BUXTON

LADY JUSTICE SMITH DBE

Between

GICHURAAppellant

HOME OFFICE AND ANRRespondent

(DAR Transcript of

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Mr T Linden and Mr N Armstrong (instructed by Messrs Elder Rahimi) appeared for Appellant.

Mr J Beer and Ms L Boon (instructed by Treasury Solicitor) appeared for First Respondent.

Ms A Hewitt (instructed by Messrs Davies Lavery) appeared for Second Respondent.

Judgment

[1]Mr Gichura, the appellant, is a citizen of the Republic of Kenya. He arrived in this country as long ago as June 2001 and almost immediately claimed asylum. That claim was refused and it failed on a number of occasions before the Immigration Appeal Tribunal (as it then was) and in an application for judicial review. We are not concerned with the merits or otherwise of any of those claims.

[2]He made a second claim which was equally unsuccessful and as part of the immigration process in February 2006 he was detained pending his removal. He was first for a short period detained at Electric House which are premises directly run by the Home Office, the first respondent in this case, and then moved to the Harmonsworth Detention Centre. Those premises are operated by the second respondent, now called Kalyx, under a contract issued to them by the Home Office. He was there for a comparatively short period of time, then was released, made a fresh claim for immigration, which again was refused, and was again detained at Harmonsworth for a period, I think, of only some one week in 2006, before being released on various conditions. He is still in this country.

[3]The claim in this case concerns the conditions under which he was detained, at first at Electric House and then at Harmonsworth. The claim was issued in the Central London County Court and it can be most simply described by setting out paragraphs 3 to 5 of the claim which read as follows:

“The claimant is a disabled person within the meaning of the Disability Discrimination Act 1995. As a result of a spinal injury he is paralysed in both legs. He uses a wheelchair at all times.”

[4]Then various medical circumstances are set out which it is not necessary to read out. In paragraph 4 the claimant goes on to say: “Both defendants were at all material times providers of services within the meaning of Section 19 of the Disability Discrimination Act 1995 and also public authorities within the meaning of Section 6 of the Human rights Act 1998”. “5. During the course of his detentions the claimant suffered breaches of various obligations owed to him, including under Sections 19 to 21 of the 1995 Act, discrimination by unjustified less favourable treatment but in particular the reasonable adjustments duty under Section 21 of that Act and failure to adjust practices and procedures or to adjust physical features are equally alleged”.

[5]It will have been noted that the claim extends to the Human Rights Act as well as the Disability Discrimination Act. In this appeal we are not concerned with the Human Rights Act aspect of it.

[6]I turn to the legislation under which the claim is brought. Before doing that I should say that in the pleading itself, after the passages that I have read out, very substantial allegations are made about the failure of both respondents to adjust their premises and so forth in a way that it is alleged the Disability Discrimination Act requires. The Act says in Section 19:

“It is unlawful for a provider of services to discriminate against a disabled person”

[7]And various ways in which discrimination can take place are set out, including making it difficult or impossible for a member of the public to make use of any service provided to him or to discriminate in the terms or standard in which he provides the services.

[8]Then Section 19 (2) says:

“For the purposes of this section and sections 20 and 21— (a) the provision of services includes the provision of any goods or facilities; (b) a person is “a provider of services” if he is concerned with the provision, in the United Kingdom, of services to the public or to a section of the public; and (c) it is irrelevant whether a service is provided on payment or without payment.”

[9]In sub-section 3 various examples of services are set out. It is important to emphasise that the services there set out are merely examples of a common sense sort of what might consist of a provision of a service.

[10]In our case it has been helpfully summarised by Mr Beer on behalf of the Home Office that the types of service that are in issue consist of the following, taken from the pleadings: a) the reception procedures including the searches of him and the time for which and the conditions in which the appellant was kept waiting; b) access to toilet and bathroom facilities; c) access and egress in a room in the detention centre; d) provision of suitable bedding; and e) provision of medical services.

[11]An application was made by both respondents to strike out the claim. The application came before District Judge Hasan in the Central London County Court. The judge said this in paragraph 17 of her judgment:

“…the first matter I need to consider is whether [the defendants were] providing a service under section 19 of the Disability Discrimination Act 1995. The claimant is a failed asylum seeker and was detained on two separate occasions pending his removal. The House of Lords decision in Amin held that an immigration officer exercising his powers under the immigration rules was not providing a service to a potential immigrant under the Race Relations Act 1976. By analogy, the same principles can be applied where a claim is brought under the Disability Discrimination Act 1995. In this case the claimant was detained under schedule 2 of the Immigration Act 1971 and no complaint has been made that the detention was unlawful. The right to detain is provided by paragraph 18 of that schedule. The primary purpose of the detention is to control immigration, in this case the eventual removal of the claimant, a failed asylum seeker -- it is not to provide a service to him. The use by him of the facilities at the detention centre is incidental to his detention; conversely the provision of such facilities is incidental to his detention. In such circumstances, the Home Office [and Kalyx are not providers of] services under Section 19 of the Disability Discrimination Act 1995.”

So the whole claim, as far as the effect of the Disability Discrimination Act, was struck out.

[12]The applicant appeals to this court against that decision. Now since the encounter at the County Court matters have moved forward somewhat at least as far as the dispute between the Home Office and the applicant is concerned. What has been agreed or conceded is, that on the part of the Home Office it has been agreed that it is arguable -- and that of course is the only question the District Judge had to decide -- that the provision of facilities or services that are contained in paragraphs (b) to (e) of the summary I read out is the provision of services for the purposes of Section 19 of the Disability Discrimination Act. For his part the applicant agrees that the basic items or provisions contained in paragraph (a) of the summary above, that is to say reception procedures and the acts of searching, do not fall under Section 19 of the Disability Discrimination Act. The applicant is not prepared to go further than that in relation to, for instance, incidental matters such as provisions about arrangements for waiting in order to be searched and so on. That is in effect the dispute, or at least as far as this application is concerned the lack of dispute, between the Home Office and the applicant.

[13]Kalyx seeks to uphold the District Judge’s judgment as a whole, on the grounds that I shall now seek to explore.

[14]The point I think can be put like this. If one looks at the matters that are in dispute between the applicant and Kalyx -- facilities, provision of bedding, provision of medical services and of course other aspects of life in the detention centre that are not specifically complained of, such as particular provision of food or recreation and so on, there seems to be no doubt that in the ordinary meaning of the English language provision of those matters is the provision of a service. The point that Kalyx takes, as did the District Judge, is that those functions are part and parcel of a governmental function, that is to say, the detention of a failed asylum seeker pending removal, and therefore for that reason do not fall under Section 19. It will already have been noted that reference is made by the District Judge in support of that analysis to the case of R v ECO ex parte Amin

[1983] 2 AC 818

and to that I now turn.

[15]The facts in that case were of course a long way away from the facts in this case. There was an arrangement at that time whereby what were called special vouchers were issued by entry clearance officers to enable persons to settle in the United Kingdom. The rule was that only a head of a household could acquire such a voucher. The complaint so far as sexual discrimination was concerned was that it was far easier for a man to be or to be recognised as the head of the household, in contradistinction to a woman such as Mrs Amin was. It was accepted that the scheme was indeed for that reason discriminatory but the House of Lords held, and this is conveniently set out in paragraph 2 of the head note:

“The grant of special vouchers did not come within the general wording of Section 29 (1) [a provision in material part similar to that with which we are concerned] since, on its true construction Section 29 applied to the direct provision of facilities or services not to the mere grant of permission to use facilities, and, by virtue of Section 85 (1) was to be construed as applying only to acts that were at least similar to acts that could be done by private persons; and that, accordingly, since the entry clearance officer was not providing a service for would-be immigrants but only performing his duty of controlling them, the refusal of a special voucher was not unlawful discrimination.”

[16]That was explained, if I may say so, most helpfully by a passage in the speech of Lord Fraser at page 835. He referred to Section 85 (1) of that Act, paralleled in the Disability Discrimination Act by Section 64, which provided that the Act did apply to an act done by or for the purposes of a Minister of the Crown or to an act done on behalf of the Crown by a statutory body. Lord Fraser said this:

“That section puts an act done on behalf of the Crown on a par with an act done by a private person, and it does not in terms restrict the comparison to an act of the same kind done by a private person. But in my opinion it applies only to acts done on behalf of the Crown which are of a kind similar to acts that might be done by a private person. It does not mean that the Act is to apply to any act of any kind done on behalf of the Crown by a person holding statutory office”

. Then Lord Fraser said: “Therefore acts done in the course of formulating or carrying out government policy which are quite different in kind of any act that will ever be done by a private person is one to which the Act does not apply. For that reason therefore acts in pursuit of government policy or the performance of distinctively governmental functions do not fall within the ambit of provision of services”.

[17]There are of course two reasons for that; one that, as Lord Fraser held that is not a function to which the Act applied at all, despite Section 85 (1) in that Act; and secondly, although he did not put it in quite this way, it would be a rather strange application of the concept of providing a service to say that one is providing a service to somebody when one is in fact restricting them from doing what they want to do. How does that distinction apply here? Kalyx says, as the District Judge said, this case is the same or very similar to Amin because what they, Kalyx, are doing is performing a governmental function. They are standing in the shoes of the Home Office in detaining Mr Gichura and other people in his position pending their expulsion from this country.

[18]There is no case directly dealing with that, but we were shown a number of authorities that indicate that that is, if I may say so, too simplistic an approach. On a number of occasions the court has taken what might be called an expansive view of the application of disability discrimination legislation to matters done in the course of the performance of governmental functions. I would refer only to two cases in particular. The first is Savjani v IRC

[1981] 1 QB 458

, a decision of this court. The complaint there was that a gentleman who was born in India went to his local income tax office, as I think it was called in those days, in order to investigate whether he could claim tax relief under part of the tax legislation. He was told that there was a rule that any tax payer who made an enquiry must be required to produce a fully certified copy of his birth certificate if he came from the Indian sub continent, that costing this gentleman £2.50. He paid the amount, and then complained that that requirement was an instance of discrimination on grounds of race because it was a requirement applied to persons from India but not to persons from England. The argument that was advanced on behalf of the Revenue was that while it was I think accepted, or if not accepted it was fairly obviously the case, that that requirement was in broad terms discriminatory it did not fall within the ambit of the Racial Discrimination Act because it involved the exercise of a government function. This court did not agree. In particular Lord Templeman said that in his view the Inland Revenue and its inspectors were not merely concerned in determining the sort of question that had been put before by Mr Savjani with their duty to collect tax, they were also, as Lord Templeman put it at page 467G:

“…the inestimable services of enabling a taxpayer to obtain that relief which Parliament intended he should be able to obtain as a matter of right subject only to proof.”

And Lord Templeman went on at page 468A to say this: “On behalf of the revenue [counsel] submitted that the Race Relations Act 1976 does not apply to the Inland Revenue at all, but he naturally and wisely recoiled from the suggestion that the inspector of taxes might decline to interview a taxpayer if the taxpayer were coloured. He makes forcibly the submission that, when the board decides for sensible reasons that a higher standard of proof is required from taxpayers who come from the Indian sub-continent, the board are not providing a service to that taxpayer; they are carrying out their duty to the Crown. As I have already indicated, it does not seem to me that the two concepts are mutually exclusive. The board and the inspectors perform their duty and carry out a service and, in my judgment, it is a service within the meaning of section 20 of the Race Relations Act 1976”.

[19]Now I would respectfully draw attention to that analysis where Lord Templeman says that the Board is effectively doing two things at the same time, carrying out its public duty but also providing a service to the taxpayer.

[20]The other authority of particular interest is Farah v Metropolitan Police

[1998] QB 65

. A lady who is a Somali refugee summoned the police to complain about, or sought their assistance in connection with, an alleged attack on her by a group of white youths. Far from giving assistance the officers arrested her and subsequently charged her with various offences, in respect of which in due course no evidence was offered. She complained that there had been unlawful racial discrimination involved in the decision to take that course subject to the Race Relations Act. This court held that it was inappropriate for that claim to be struck out on the ground that it did not fall under the legislation. The head note again accurately reflects what the court held: “…those parts of a police officer’s duties involving assistance to or protection of members of the public amounted to the provision of services to the public for the purposes of Section 20(1) of the Race Relations Act 1976 and it was therefore unlawful for officers to discriminate in their provision on grounds of race”.

[21]And in particular that finding relied on what was said by Lord Templeman in Savjani and also referred to what was said by Lord Fraser in Ex parte Amin.

(h) when he said this:

“These acts (or services) which the plaintiff sought from the police were, to my mind, acts which might have been done by a private person. The second category envisaged by Lord Fraser covers those acts which a private person would never do, and would normally only ever be performed by the police eg gaining forcible entry into a suspected drugs warehouse. Here the officers would be carrying out government policy to which the Act would not apply. Moreover, they would be performing duties in order to prevent and detect crime and exercising their powers to enable them to perform those duties.”

[22]That distinction is with respect of importance in distinguishing between acts which might be done by a private person and acts which a private person would never do. Clearly a private person would never sit in judgement on the issue of entry certificates, to take the facts of the case in Amin. Clearly a private person would never be engaged in searching for drugs. By contrast a private person would often be engaged in the sort of services which we are concerned with in this case.

[23]Now it is quite right to say as Kalyx says, and as Miss Hewitt forcibly said, that everything that happened here was incidental to the detention of Mr Gichura; but the authorities that I have referred to clearly show that that is not enough to exclude the provision of a service from the reach of this Act if, when done by a private person, what happened would be regarded as the provision of a service.

[24]The cases of Farah and Savjani show that the court is prepared to take a fairly broad view of what falls outside the provision of the governmental service in the context of the discrimination legislation. It was, if I may respectfully say so, by no means certain in Savjani that it would be said that, as part of their operation of the tax office, the Inland Revenue officials were providing a service to the public as opposed to ensuring that the public paid its taxes. But as Lord Templeman said there can be two functions going on at the same time. That in my judgement is this case. On the one hand Kalyx is of course detaining Mr Gichura. True it is, as Miss Hewitt said, that anyone who is detaining a person that in effect has to provide them with bed, board, food and facilities; but as this case shows many issues may arise as to how that is done.

[25]The broad view of what counts in these terms as provision of a service is important because it is important that the disability and other discrimination legislation does apply in circumstances which it is natural to think it should apply. I do not think that it is conceivably right to say now that Parliament intended this very important legislation not to apply in circumstances such as the detention centre with which we are concerned with, detention in police custody or detention in prison. Some of the functions that were performed there are purely governmental, like, as is conceded in this case, the administrative handling of the detainee on his arrival. But once he is there he is as a detainee a member of a section of the public. He is provided with what are in truth services and there is no reason either in the Act or in the authorities to which I have referred to exclude those services from the ambit of the Act.

[26]For that reason therefore I do not agree with the analysis of the District Judge. I would hold her to be wrong in her conclusion that it is not arguable that services were provided in this case and I would reverse her decision. The effect of that as I would understand it that the case will now proceed on that basis, but subject to the concession that I have recorded on the part of the applicant so far as the first part of his detention is concerned.

[27]I therefore allow this appeal in those terms.

[28]I agree.

[29]I also agree

Order

Application granted; appeal allowed