Gill, R (on the application of) v Secretary of State for Justice [2010] EWHC 364 (Admin)

Case No CO/10088/2009[2010] EWHC 364 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/02/2010
Before
MR JUSTICE CRANSTON
Between
The Queen (on the application of Dennis Gill)ClaimantSecretary of State for JusticeDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Adam Straw (instructed by Bindmans) for ClaimantSteven Kovats (instructed by The Treasury Solicitors) for DefendantHearing Hearing dates: 11 February 2010
Judgment

INTRODUCTION

[1]The claimant is a life sentence prisoner who suffers from a learning disability. He has served well over twice his tariff. By reason of his intellectual disability he has not been able to undertake offending behaviour programmes. In essence his case is that this has greatly impeded his ability to reduce his risk and progress towards release, and that this constitutes not only a breach of the Disability Discrimination Act 1995 (“the 1995 Act”) but also a breach by the Secretary of State for Justice (“the Secretary of State”) of the public law duties imposed on him. BACKGROUND The claimant’s imprisonment[2]The claimant’s offending began in 1988. Violent behaviour soon emerged as a feature of that. There was an assault occasioning actual bodily harm in 1990. In 1995 he was imprisoned for three years for wounding with intent following his stabbing a person in the abdomen with a kitchen knife. In 1997 he committed the offence of grievous bodily harm. During an argument he struck his father with a three foot length of wood, causing a broken left arm. The following year the claimant was convicted for assault occasioning actual bodily harm. That occurred while he was in prison. Apparently he had been informed by staff that he was moving to a different part of the prison and as a result became violent, smashed furniture in his cell, and then used a table leg to assault prison staff and smash windows. The index offence, wounding with intent to do grievous bodily harm, occurred in 2001. The claimant assaulted a prison officer by throwing boiling water into his face. He was given an automatic life sentence for section 18 wounding and the tariff was set at four years. That tariff period expired in May 2005. In 2002 he was given concurrent twelve month sentences for actual bodily harm and affray.[3]Following his sentencing for the index offence, the claimant was transferred, in September 2001, to high security conditions at HMP Frankland. Subsequently he was moved to HMP Whitemoor in March the following year. In October 2003 he was transferred to HMP Long Lartin and remained there for the following six years. He was subject to some sixteen adjudications in the initial phase of his imprisonment but the last of his adjudications was in December of 2004. In October 2009 the claimant was transferred to HMP Lindholme, a category C prison.[4]The claimant’s first Parole Board review was at HMP Whitemoor in May 2003. The reports prepared for that noted that the claimant had participated in little offence related work since his arrival at the prison and had completed no accredited programmes. His main areas of risk were identified as use of violence, criminal lifestyle, a lack of victim empathy, drug misuse and a lack of responsibility for offending behaviour. The board said this:
“Offence related programmes recommended to address his identified areas of risk were for him to be assessed for the Enhanced Thinking Skills (ETS) Programme in order to explore his thinking style, assessed for the FOCUS course in order to assess whether there was a link between drug misuse and offending and the Cognitive Self-Change Programme (CSCP) or Controlling Anger and Learning to Manage it (CALM) regarding his violent offending.”
[5]The Parole Board considered the claimant’s case again in February 2006. It decided not to direct his release or recommend that he be transferred to open conditions. It said that there was no support among the report writers either for his release, or for his categorisation to open conditions. “5 … The consensus is that your literacy problems make your participation in accredited offending behaviour programmes impossible, yet without such participation your risk reduction cannot be measured. In the absence of such evidence the Panel can make no positive recommendation.” 6. The panel is extremely concerned that unless means are found to address your offending behaviour without exclusive reliance upon improving your literacy and involvement in offending behaviour programmes your constructive progress through the prison system will be impeded. A further Parole Board hearing in December 2008 again decided not to direct the claimant’s release or to recommend his transfer to open conditions.[6]The most recent Parole Board decision was in October 2009. The claimant accepted that it would not be appropriate for it to order his release or to recommend a move to open conditions. The board did not do so. However, it considered the evidence of the claimant’s change during the course of his sentence. It said this:
“In the absence of evidence of a reduction in risks through the completion of programmes aimed at addressing your offending behaviour the Panel must look elsewhere for evidence of change. Other signs are favourable. You have not been involved in violence of any sort since 2004 and [the Probation Officer] reports a dramatic improvement in your behaviour since then. You have consistently provided negative drugs tests and have received neither adverse adjudications nor warnings for five years. You are now an enhanced prisoner with a job in the kitchen where you have access to hot water or knives that you could easily misuse. This means that you are now regarded as safe and trustworthy. You are to be congratulated on this progress and as a result you are being moved to a lower category prison where you will meet new people and new challenges. If you cope with these challenges without losing your temper or using violence you will provide more evidence that the risk you posed in the past has been sufficiently reduced to test you in open conditions with a view to eventual release.”
The board went on to note that if the claimant demonstrated that he could behave properly in the less controlled environment of HMP Lindholme – where it had been proposed that he be sent – consideration could then be given to the next stage of his rehabilitation. In HMP Lindholme he would have more contact with his family, which was important in the longer term. The future remained uncertain but the claimant now had the opportunity to demonstrate that he had changed and could be trusted in the community. A further period of testing his behaviour at HMP Lindholme was required before consideration could be given to any further moves. The claimant’s disability[7]The Secretary of State accepts that the claimant can be considered to have a disability for the purposes of the 1995 Act. Section 1 of that legislation identifies a disabled person as someone who has a physical or mental impairment which has a substantial and long term adverse effect on his or her ability to carry out normal day to day activities. The effect of an impairment is a long term effect if, amongst other things, it has lasted at least twelve months: Schedule 1, paragraph 2(1)(a).[8]An accepted definition of learning disability is set out in the White Paper, Valuing People: a new strategy for learning disability for the 21st century, Cm. 5086, 2001 – an impaired intelligence with an impaired social functioning, which started before adulthood, with a lasting effect on development. The British Institute of Learning Disabilities notes that a common tool used to measure general intellectual functioning for the adult population is the Weschler Adult Intelligence Scale. An IQ of 70 or less on that scale suggests the presence of learning disability. The International Classification of Diseases, Vol 10, produced by the World Health Organisation defines mild mental retardation as an IQ being in the range of 50 to 69, with likely learning difficulties in school. However, it seems that a low IQ is not sufficient of itself to diagnose a learning disability, and the degree of impairment of social functioning for each individual must be considered.[9]The claimant was assessed in 2004 using the Weschler abbreviated scale of intelligence. The assessment concluded:
“[H]is full scale IQ was below the level required for the majority of offending behaviour programmes and fell within the “borderline” range”
. A more detailed assessment using the Weschler adult intelligence scale, in 2007, reported a full scale IQ of 65. In July 2008 an assessment for Newton Lodge, a regional forensic psychiatry secure unit operated by the NHS, concluded that what the claimant would most benefit from is “more one to one support by a skilled tutor who was trained in managing and teaching individuals with [his] limitation and abilities”. In early March 2009 there was an assessment conducted by a Dr Singh for Rampton Hospital, a high-secure NHS hospital. Dr Singh stated that the claimant’s IQ score was more likely to be a reflection of a lack of educational attainment or a specific reading retardation, such as dyslexia, rather than a learning disability. Methods for his progress, opined Dr Singh, were access to specialist education sessions which were appropriate for his level of abilities, and to address learning difficulty (dyslexia) in order to improve his literacy skills “so that he can access prison offender behaviour programmes or adapted behaviour programmes”.[10]In September last year the claimant’s solicitors commissioned a report by Dr A Kearns, a consultant forensic psychiatrist. Dr Kearns reported that the claimant told him that his fear was that he would move to a more open prison but still receive no help. He was emphatic that he did not want to move directly out of prison. The consultant forensic psychiatrist for HMP Long Lartin, Dr Kenny Herbert, informed Dr Kearns that he had referred the claimant to hospital psychiatric services but, in the light of their deeming him to be unsuitable for admission, “a deficit appeared to exist in the provision for people with needs such as his which should be rectified”. In interview the claimant was courteous, pleasant and calm but he frequently struggled to express himself.[11]Under the heading “Opinions and Recommendations”, Dr Kearns explained that the educational history, occasional history, formal assessments and performance at interview indicated that the claimant was a man who was functioning intellectually in the range of learning disability. Further specialist evaluation would be necessary to determine his low level of literacy, even taking into account his intellectual capacity. He had been unsuccessfully assessed by two specialist psychiatric services for possible admission to hospital. That left an impasse. “The various courses in prison for anger management, thinking skills and similar work are excluded from him by virtue of his intellectual ability”.[12]The move to less secure prison was the most promising way forward, although Dr Kearns believed that the claimant would benefit greatly from further assessment and treatment, particularly in relation to anger management, understanding emotions and substance misuse. The completion of such work would provide a more robust assurance of the lowering of risk and could be included in a programme of gradual reintegration into the community from open prison settings. The educational component necessary would be most likely appropriately addressed by a teacher with experience in the education of adults with learning disability and, ideally, with specific experience of dyslexia. The most effective start might be one to one sessions. He was clearly dissatisfied with efforts to help him but Dr Kearns’ perusal of the documentation did not suggest that, in fact, efforts had not been made. Dr Kearns noted perceptive and committed comments by various staff in relation to the claimant’s case. The claimant in prison[13]A Sentence Planning and Review Board in January 2003 identified offending behaviour work for the claimant as an assessment for the Enhanced Thinking Skills (ETS) course and, to follow, Controlling Anger and Learning to Manage (CALM) were he to be found suitable. There was a further Sentence Planning Board for the claimant in February 2004. At that stage education was identified as the key factor. The claimant had stated during his induction process to prison that he did not wish to engage with the CARATS (Substance Misuse Service) or any other services and that he wanted first to address his difficulties in reading and writing. There is a report by his basic skills literacy teacher, later that year, who suggested that the claimant be provided with a scribe for the ETS and FOCUS (drug misuse) courses.[14]In 2004 the prison recorded the claimant as having participated in one to one tuition in literacy, although he later declined to attend further sessions. There is no information on the prison files to indicate the reasons. In his statement for this hearing the claimant explains that he was in a classroom with many people and the teacher’s attention was taken by others. The claimant adds that he could not cope with this low level of support, and that he had no choice but to relinquish the course since he was not learning anything and was becoming more frustrated.[15]A report on 22 December 2004, by a chartered forensic psychologist at HMP Long Lartin, said that the claimant’s overall assessed intellectual ability, which was not affected by the problems he experienced with literacy, “has resulted in him not being offered a place on accredited offending behaviour programmes”. The report referred to memoranda sent to the claimant by the Enhanced Thinking Skills treatment manager and the FOCUS treatment manager, that he would have to demonstrate significant improvements in literacy before being offered a place on offending behaviour programmes. To his credit, the clinical forensic psychologist noted, there was evidence on the file which suggested that the claimant had previously expressed an interest in completing offending behaviour work.[16]During 2005 the claimant attended some Skills for Life courses run within the prison although he did not continue attending. In April 2005 his external probation officer wrote that the likelihood of re-offending depended on his progress while he was in prison. “It is of particular importance that he manages to successfully complete programmes that will ameliorate his behaviour and his attitude toward others before release can be considered. Clearly at this juncture without any participation in any group programme the risk of offending must remain relatively the same”.[17]Then at the Sentence Planning Board in March 2006 targets were again set around education, but also included psychological assessments and assessments for accredited offending behaviour programmes, the latter to be completed subject to the necessary educational outcomes being achieved. On 20 March 2006, at an internal prison meeting, his basic skills literacy teacher again suggested that he be provided with a scribe. An additional case conference later in the year recommended that the claimant should undertake an assessment to determine the level of his intellectual functioning. Previously he had been reluctant to engage when he became aware that the assessment would be conducted by a psychologist from a unit which he believed had written an unfair report in the past. This time he agreed. Around this point he is recorded as attending a skills for life course and was praised by his tutor for his enthusiasm. However, “he stopped attending due to his reaching his limit and more specialist help maybe required in helping [him] with his dyslexia”.[18]The next Sentence Planning Board, on 1 February 2007, recorded that the claimant had declined to engage with staff both for an OASys assessment and an IQ assessment. However, he was praised for his general good behaviour and improved adjudicational record. At another internal prison meeting on 30 July 2007 the following answers were recorded in reply to questions: had any progress been made? “None to date. Unable to access programmes because of poor literacy skills due to dyslexia”; any reduction in risk? “None to date. Unable to access programmes because of poor literacy skills due to dyslexia”; reasons for decision to transfer/remain at Long Lartin? “Not recommended. [The claimant] needs specific learning help. Until he complies with IQ assessment the service is unable to determine the best facility for this”.[19]The summary of that meeting noted the claimant’s refusal to comply with staff for the OASys and IQ assessments; that he had a history of disagreement with psychology staff and felt that the prison was deliberately holding back his progress; that he needed specific help with his learning difficulty; but that he needed an up to date IQ assessment to determine if educational work had improved his intelligence. “[The claimant] is refusing to undergo the IQ assessment and the prison is unable to make a judgment of what is best for [him] until this is done”. “At the moment [the claimant] cannot undertake programmes and is unable to evidence a reduction in risk. The way a life sentence is structured [the claimant] cannot progress because he is unable to attend programmes at his current educational level”.[20]As indicated earlier the full IQ test was completed later in the year. The report on this noted that the assessment “was used to further assess [the claimant’s] capacity to benefit from the offending behaviour programmes offered by the Prison Service”. It reported that the majority of offending behaviour programmes required offenders to have a full scale IQ of 80 but that the claimant’s was below the threshold required. His verbal IQ, verbal comprehension index and working memory index all fell within the “extremely low” range, which suggested that he would not have the capacity to benefit from offending behaviour programmes delivered by the prison service.[21]At a Sentence Planning Board on 24 June 2008 a referral for assessment to Newton Lodge, the NHS unit, was discussed. It was noted that the claimant requested a return to education while awaiting the assessment from Newton Lodge. The claimant completed some work under the “toe by toe” scheme, which is a peer delivered literacy programme for prisoners with poor literacy skills. The claimant’s withdrawal from the scheme coincided with the transfer of his mentor to another establishment and the receipt of a negative response from Newton Lodge, informing him that he would not be accepted there. The report from Newton Lodge said that it had been difficult for the claimant to progress in the criminal justice system because he had not been able to demonstrate a reduction in risk. That was due, it was said, to his inability to participate in offender behaviour programmes because of his IQ being below the threshold required for the majority of these programmes. He had, however, engaged and participated well in education sessions and had been able to improve his literacy skills.[22]At the June 2008 Sentence Planning Board, the claimant was given credit for his hard work and patience in the referral process. It was also noted that the CARATS team had reported that he had a positive effect on drug users within his wing and that wing reports generally underlined his good institutional behaviour and work ethic. The claimant began working in the prison kitchens in July 2008. In the view of the Prison Service this demonstrated an ability not only to maintain a job within the institution but to hold a trusted position in a sometimes difficult and stressful role. Previously the risks of placing the claimant in an environment with ease of access to weapons such as knives and hot liquids would have been considered too high.[23]There was a memorandum by Dr Ball, of the offender management unit at HMP Long Lartin, on 12 November 2008. Dr Ball explained that with an IQ of 65 the claimant could not access any accredited offending behaviour programmes. Although increasingly scarce, neither would he benefit from completing adapted programmes, programmes adapted for people with a low IQ, since the claimant’s IQ was below the minimum level required. This meant, explained Dr Ball, that the claimant could not demonstrate a reduction of risk and as a life-sentence prisoner was unlikely to be released or even progress towards release. He needed to undertake work with specialist providers.[24]On 24 December 2008 Mr Gower, deputy head of offender management at the prison, and the claimant’s designated manager, contacted the National Offender Management Service about adapted offending behaviour programmes. The response was that these were unsuitable and that one to one work should be explored. In January 2009 the possibility of a member of staff working with the claimant to deliver the core concepts of offending management programmes was discussed between the prison and the National Offender Management Service. However, individual work was not proceeded with. It seems the prison was unable to locate anyone with suitable skills locally. It was also said that while the claimant had been willing to engage in activities such as the toe by toe scheme and the Skills for Life course, he had later disengaged and had previously refused to comply with assessments, i.e. OASys and IQ, and had been reluctant to engage with the psychologist at the prison to undertake an assessment of his intellectual functioning.[25]At the Sentence Planning Board on 6 January 2009 the board discussed the possibility of a move to another category B prison. The claimant was again praised for his patience and control during a frustrating and uncertain time. It was acknowledged that he held a trusted position within the kitchen environment, and a move to Rampton Hospital remained a possibility. Meanwhile, there had been a reconciliation between the claimant and his family. That was seen as a positive factor in the reduction of risk of re-offending and as a factor promoting a pro-social behaviour. It was the combination of that and his positive prison employment behaviour which contributed to the decision, in May 2009, to locate the claimant within category C conditions. The less secure conditions, it was said, would allow his improved behaviour to be further tested to see if it was equally demonstrated in a different environment. A probation assessment in late September 2009 said this:
“There is no doubt that [the claimant] has been let down by the system in that the treatment he required has not been forthcoming due to his learning difficulties. Naturally he has not had any control over this situation and he has languished in prison without any real offence-focused work being completed. Thankfully as indicated in the information I have received he does seem to have changed his attitude over the last five years or so and perceivably his outlook has matured so that, at least in a high risk establishment, his risk of harm potential seems to have been reduced to some degree.”
[26]The Sentence Planning Board meeting at HMP Lindholme on 23 December 2009 recorded that the claimant had settled in well, had shown adaptability, was keen to work and had been appropriately employed. He presented a high risk to the public and to staff and a low risk in all other respects. He had shown a marked improvement in his behaviour since his last adjudication in 2004. He was on the enhanced level of the Incentive for Prisoner Scheme. Since arriving there had been nothing but positive reports from his wing staff and he was described by his employer as being an excellent worker. The recommendation was that he engage fully with the assessment proposed with a psychologist and that he maintain his good level of behaviour. It was also important that he strengthened family ties. The possibility of a partnership in relation to education was raised, but the claimant said that he was not happy working with other prisoners. He was open and forthcoming during the board’s discussions and demonstrated a keenness to progress in line with the assessment that he would be undertaking.[27]In a letter to the claimant’s solicitors on 10 February 2010, the date of this hearing, the Secretary of State wrote that Professor Taylor, of the Forensic Services directorate at Northgate Hospital, had been asked to assess the intellectual and cognitive functioning of the claimant and to provide a clinical assessment of his treatment and risk management needs. PRISON POLICIES AND THE CLAIMANT Prison policies[28]Under the Prison Act 1952, the Secretary of State is responsible for prisons: ss. 1, 4. Pursuant to that general responsibility he has issued a number of Prison Service Orders (“PSO”) and Prison Service Instructions (“PSI”).[29]PSO 4700 is the indeterminate sentence manual. The section dealing with short term lifers, normally those with a tariff of five years or less, explains that they are managed differently from lifers with longer tariffs, because of the overall objective to release lifers on tariff expiry if risk factors permit. The statutory entitlement to a review before the Parole Board might be triggered relatively shortly after conviction for a short term lifer: para 4.13.2. The explanation continues as follows:
“The essential elements of the policy for short term lifers and arrangements for their management through their period in custody are as follows: … complete any specialist assessments required … CARATS, CALM, CSCP etc … commence offending behaviour work.”
In that paragraph there appears the following in bold:
“They [short term lifers] must be prioritised for offending behaviour programmes according to the length of time left till tariff expires. The same principle must apply for all lifers, so that length of time tariff expiry is taken into account when allocating offending behaviour programme resources. In other words lifers must be given every opportunity to demonstrate their safety for release and tariff expiry.” complete any specialist assessments required … CARATS, CALM, CSCP etc … commence offending behaviour work.”
[30]PSO 2855 is entitled “Prisoners with disabilities”. It says it sets out prison governors’ responsibilities under the 1995 Act towards prisoners with disabilities. The order provides instructions and guidance on prison service policy and the requirements introduced by that legislation. Paragraph 1.10 of the order contains the prison service standard for disabled prisoners: “The Prison Service ensures that all prisoners are able, with reasonable adjustment, to participate equally in all aspects of prison life without discrimination”.[31]Chapter 3 of the policy is headed “Prison Service Policy Statement”. It begins that prisons will treat all prisoners with disabilities with decency and without discrimination and will offer them a quality of opportunity in all aspects of prison life. Prisoners with disabilities will be offered equal opportunity to address their offending behaviour and will be treated in a safe and secure environment. The Prison Service will promote equality of opportunity for prisoners with disabilities.[32]Chapter 6 of the order is entitled “The prisoner experience”. Paragraph 6.12 states that any adjustments arising from a prisoner’s disability need to be fed into sentence plans and that it is important that those interventions needed to address the likelihood of re-offending are available to all prisoners. Paragraph 6.18, on education and skills, provides that, where appropriate, adjustments need to be made to the provision of these and to alternative formats. Particular attention should be made to ensuring that activities should not exclude prisoners with a learning disability or difficulty. Paragraph 6.36 is headed “Offending behaviour programmes”. “It is vital that prisoners with disabilities can access any offending programmes as identified in their sentence plan, with adjustments made as necessary, e.g. relocation in a course if inaccessible”. Later paragraphs, paragraphs 6.40-6.41, outline that a prisoner with a disability should not be prevented from being re-categorised and transferred to a new establishment simply because of that disability. Each case must be assessed on the need of the individual prisoner.[33]“Reasonable adjustments” is the title of chapter 8 of the order. Paragraph 8.1 reads:
“Some factors when considering the reasonableness of making adjustments: whether taking particular steps would be effective in overcoming the difficulty that disabled people face in getting access; the extent to which it is practicable for the service provider to take the step; financial and other costs of making the adjustments; the amount of disruption caused by taking the steps; money already spent on making adjustments; the availability of financial or other assistance.”
Paragraph 8.2 continues that all governors and staff need to look to make reasonable adjustments in respect of prisoners with disabilities, and to document where these are not possible. Governors need to be aware that, if reasonable adjustments are not made in respect of a prisoner with a disability, they are vulnerable to legal challenge: para 8.4.[34]The previous version of PSO 2855, in effect until 2008, contained additional relevant paragraphs. For example, under the subheading “the duty to provide aids and services”, there was reference to the obligation to seek advice and support through the expertise of an appropriate professional and voluntary organisation: para 2.6.3. Paragraph 3.1.1 provided that arrangements had to be made for an assessment of prisoners’ needs during reception and induction and that a record had to be kept about the communication needs of all disabled prisoners. The previous version of PSO 2855 also highlighted that establishments had to take positive steps to ensure persons had access to educational facilities and programmes (para 3.3.1(i)) and that where attendance at particular courses was necessary for the successful completion of a prisoner’s sentence, reasonable adjustments had to be made to allow prisoners with disabilities to participate (para 3.3.5(i)). Under “Sentence Planning” specialist staff and organisations were to be consulted for advice where that was necessary: para 3.4.1. Moreover, the order required that it was necessary in setting targets to take account of the special needs of a disabled prisoner “There may be activities or programmes that are difficult for disabled prisoners to access. Establishments must consider the reasonable adjustments that could be made to these activities or provide a reasonable alternative method of providing them to enable disabled prisoners to make use of them” (para 3.4.2).[35]Prison Service Instruction 31/2008, “Allocation of prisoners with disabilities”, contains detailed guidance on the circumstances in which a disabled prisoner can be transferred to another prison and on the procedures for so doing. It is said that where a prisoner would under other circumstances have transferred as a result of a recategorisation review, or accessed a programme as part of a sentence plan, but the prison is having difficulties in arranging a transfer because of a disability, “it is important that prisoners with disabilities are able to access courses and/or move to a lower category prison as they would were they not disabled. This has proved to be a problem in cases which have resulted in Judicial Reviews, with prisons unable to identify where suitable accommodation exists, or unable to arrange a transfer. Prisoners with disabilities must be able to follow their sentence plans and satisfy the conditions for parole” (emphasis in original).” Under the heading “mandatory action” it is provided that governors must ensure that prisoners with disabilities are able to access the regime and appropriate interventions. Where that is not possible at the particular establishment because appropriate accommodation is not available, and reasonable adjustments can not be made, the prison should contact the prison management service to identify another establishment with the appropriate accommodation and courses: para 12. Moreover, prisoners with short sentences should be considered as soon as possible for those reasonable adjustments required to ensure that they are able to access the regime: para 18.[36]Finally to be mentioned under this heading is the HMP Long Lartin disability policy. It includes specific consideration of dyslexia and learning difficulties. Appendix 1 sets out examples of reasonable adjustments in that context and includes reference to documents and posters in pictorial format, access to learning support in offending behaviour programmes, simpler forms and easy to understand language for explanations and instructions. Offending behaviour programmes[37]Offending behaviour programmes are intended to reduce re-offending. The National Offender Management Service runs some 14 different programmes. New programmes are developed on a continuing basis. Accreditation is given by the Correctional Services Accreditation Panel. It represents an independent expert view that a course, if delivered as designed, is likely to reduce re-offending. In addition there are a broad range of non-accredited programmes which have been approved locally to meet particular needs.[38]Whether or not a prisoner requires a particular accredited course, and if so which, depends on an assessment of suitability. There are five stages to that: assessing risk, need, responsivity, readiness for treatment and practical aspects such as whether the programme is possible. The third factor, responsivity, is designed to ensure that the programme will be understandable and that the person is ready to engage with it.[39]It is not uncommon for offending behaviour programmes to be regarded as a requirement to demonstrate risk reduction before the Parole Board. Perhaps most notable in that regard are the comments of the law lords in R (on the application of Wells) v Parole Board [2009] UKHL 22; 2009 2 WLR 1149, paras 26, 36. In her statement for this hearing, Dr Jo Bailey, the lead psychologist for the operations directorate of the National Offender Management Service, emphasises that participation in offending behaviour management courses is neither necessary nor sufficient to achieve release. She explains that the Prison Service uses seven so-called pathways to reduce re-offending as a basis for sentence planning targets of individuals:(i) accommodation,(ii) education, training, employment,(iii) mental and physical health,(iv) drug and alcohol misuse,(v) finance, benefit and debt,(vi) children and families of offenders and(vii) attitudes, thinking and behaviour. Those involved in the risk assessment and management of offenders are to apply a holistic approach through the pathways model, as a means of achieving and demonstrating a reduction in the risk of re-offending. Intellectual ability and offending behaviour programmes[40]When assessing suitability for accredited offending behaviour programmes one of the factors taken into account is intellectual ability. The Prison Service publication Accredited offending behaviour and drug treatment programmes, dated May 2007, contained the following paragraph as part of the foreword:
“Programmes make a difference. They contribute significantly to the assessment of risk, the reduction of risk and the management of risk. They provide a wealth of important information about what motivates and drives offenders and how they might be able to live a successful and offence-free life. They contribute to the successful management of an offender through their sentence and provide valuable information for decision makers contemplating their progression.”
That paragraph is not repeated in the updated version of the document published by the National Offender Management Service, entitled Suitability for accredited interventions, May 2009. Both the 2007 and 2009 documents contain what is entitled the responsivity principle, that is, if a programme is to be effective its mode of delivery must match the preferred learning styles and other diverse needs of participants. Thus even when an offender is suitable for a programme based on risk and need, it may not be suitable for him or her if it is not delivered in a way to which that person will respond. The National Offender Management Service is obliged to provide for offenders with different needs and treatment. Managers must make all reasonable adjustments to ensure programmes are accessible to those who could potentially benefit. Then in both the 2007 and 2009 document there appears this passage in italics:
“Is there any evidence that the offender’s IQ is lower than that necessary to enable meaningful participation in the programme? In general, an IQ in the region of 80 or below may prevent meaningful engagement with the material or may cause difficulty coping in the group setting.”
[41]Under the heading “Intellectual ability”, both the 2007 and 2009 documents ask the question whether an individual has the necessary intellectual ability to engage with a programme and explains that many programmes require verbal skills and the ability to grasp abstract concepts. They note that some offenders are likely to respond better to information which is delivered in a more repetitive and concrete manner than is found in the design of more accredited programmes.[42]Dr Jo Bailey, the lead psychologist for the operations directorate of the National Offender Management Service (NOMS), explains in her statement for this hearing that guidance on suitability for attendance on offending behaviour programmes is that a minimum IQ of 80 is necessary. Being below that level is not in itself a barrier to access but may make it harder for an offender to engage meaningfully. Treatment managers should consider ways to assist offenders to participate such as providing individual support or mentoring, for example, through a scribe, additional support outside sessions, or alternative methods of communication.[43]Dr Bailey notes that while alternative teaching aids can be used to present information, if the issue is one of concept it is unlikely that an individual will benefit from a programme. Attendance is likely to create frustration, potential shame and harm. Offending behaviour programmes are nearly all based on the psychological approach known as cognitive behaviour therapy. Typically this requires a reasonable intellectual ability because the concepts used are somewhat abstract and require a reasonable intellectual ability on behalf of the participant. Offenders with low IQs, such as those with a learning disability, may find some aspects of the programmes difficult to follow.[44]In her statement Dr Bailey notes that the National Offender Management Service is currently reviewing the range of accredited programmes and has developed proposals which are awaiting approval from the Correctional Services Accreditation Panel. In fact in a letter dated 10 February 2010 the Secretary of State explains to the claimant’s solicitors that proposals for developing an adapted version of the Thinking Skills Programme, and a new programme for violent offenders, to accommodate those with lower functioning, have now been considered by the panel and agreed. It is estimated that these new programmes will take a further eighteen to twenty four months to develop. The claimant and offending behaviour programmes[45]Ordinarily, says Dr Bailey, the high risk of re-offending, and the medium/high risk of causing serious harm to others, on the part of the claimant, would suggest an initial suitability for the Thinking Skills Programme (TSP), the Controlling Anger and Learning to Manage Programme (CALM) and the Cognitive Self-Change Programme (CSCP). The treatment manager at HMP Long Lartin has indicated, however, that the claimant did not meet the criteria for that programme. Assessment would be needed to determine the claimant’s capacity to undertake the other two programmes. Continuing, however, Dr Bailey says that she has discussed the matter with Dr Ball, the HMP Long Lartin forensic psychologist. Dr Ball opines that the claimant’s working memory would make it difficult for him to process and retain new information, and developing a conceptual understanding would present difficulties. Indeed, starting but not completing a programme might serve to increase his likelihood of re-offending. A group setting could potentially be very humiliating for the claimant, and in Dr Ball’s view it is debatable whether he will maintain attendance.[46]In line with her view that the perceived requirement for the claimant to attend offending behaviour programmes had been overstated in the past, Dr Bailey suggests that this has occurred due to a routine identification of a range of interventions in the prison service, rather than a useful focus of how best to achieve the necessary outcomes in the claimant’s case. In her statement she contends that the claimant needs to be able to demonstrate to the Parole Board that he is at sufficiently low risk of re-offending, but that offending behaviour programme should not have been identified as a potential treatment target for the claimant. “We see that OBPs [offending behaviour programmes] have remained a sentence plan target, albeit a prospective one. This seems to be more due to a routine identification of the range of interventions within HMPS [prisons] rather than a useful focus on how best to achieve the outcomes in [the claimant’s case] … OBPs should not have remained identified as a potential treatment target for [the claimant] for two reasons. First, due to the acceptance of those working with him that they are not a suitable treatment path. Second, because he has achieved positive outcomes (e.g. improved institutional behaviour and improved emotional control) via other means hence could be identified as no longer having sufficient “need” for this work. The failure to remove the OBP target for [the claimant] is in my view an error.”[47]In Dr Bailey’s view the sentence planning process should concentrate on other activities likely to be of more benefit to the claimant such as education and literacy. In the claimant’s case the Prison Service seem to have lost sight of a proportional and balanced approach. It has become overly focused on his access to offending behaviour programmes when he appears to be benefiting from other avenues. Without attending the CALM programme, for example, the claimant had clearly demonstrated a behavioural improvement which that programme would have been designed to achieve. In terms of the future the major need, in Dr Bailey’s opinion, is for the claimant to improve his education and literacy skills. There might also be one to one work on his anger and emotional management. The claimant remained adjudication free and again had been employed in the kitchens. It appeared that his ability to manage his emotions and refrain from violence had proved itself to be stable over time and location. That, in Dr Bailey’s view, further suggested that a formal accredited offending behaviour programme was not warranted. DISABILITY DISCRIMINATION[48]The claimant advances his discrimination claim in two ways. First, and most importantly, he contends that the Secretary of State has acted unlawfully under the Disability Discrimination Act 1995 (“the 1995 Act”)(i) in breaching his duties to make adjustments, and to provide aids and services, to enable the claimant and inmates with learning disabilities to undertake offending behaviour work;(ii) in directly discriminating against the claimant by refusing to provide him with offending behaviour work; and(iii) in failing to comply with the duty to eliminate discrimination under section 49 of the 1995 Act by not putting in place practices relating to the provision of offending behaviour work for those with learning disabilities similar to the claimant’s. Legal principles (a) A service, or the performance of a public authority function?[49]The first two aspects to the claimant’s case under the 1995 Act – that there is indirect and direct discrimination – were advanced under both section 19(1) and section 21B(1). Under section 19(1) it is unlawful for a provider of services to discriminate against a disabled person. Section 21B(1) makes it unlawful for a public authority to discriminate against a disabled person in carrying out its functions.[50]The claimant contended that the discrimination alleged here fell within the services provisions because the Secretary of State was a provider of services within the meaning of section 19(2) and 19(3)(h): he is concerned with the provision of services to a section of the public. In Alexander v Home Office [1988] ICR 685 it was held that prisoners are a section of the public for the purposes of the equivalent provisions of the Race Relations Act 1976. Moreover, in Gichura v Home Office [2008] EWCA Crim 697; [2008] ICR 1287 the Court of Appeal accepted that a disabled person detained in an immigration detention centre was entitled to claim that he had been discriminated against in the provision of services under section 19.[51]Gichura v Home Office was an appeal where the judge had struck out a claim under section 19 of the 1995 Act alleging discrimination in the reception procedures, and in the services provided, in both a Home Office immigration detention centre, and an immigration detention centre operated under contract to the Home Office by a private company. The claimant was a wheel-chair user and failed asylum seeker awaiting removal from the United Kingdom. The services included access to toilet and bathroom facilities, the provision of suitable bedding and the provision of medical services. On appeal the claimant conceded that the reception procedures and acts of searching him did not fall within section 19, and conversely the Home Office conceded that the services mentioned did. The issue before the Court of Appeal was whether it was arguable that everything the private company did – the provision of the facilities, bedding, medical care and so on – were part and parcel of a governmental function, the detention of a failed asylum seeker, and thus not within section 19. The Court of Appeal held that it was arguable that what the company was doing was caught by the section. Buxton LJ (with whom Waller and Smith LJJ agreed) said: “[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”.[52]Although the point was not fully argued before me, it seems to me that what is at issue in this case concerns a purely governmental function, the continued detention of the claimant. The claimant’s case is that he is being detained in circumstances where, if he had access to offending behaviour programmes, he would be able to demonstrate a reduced risk so that his detention would be shortened. Offender behaviour programmes are not services akin to facilities, bedding, medical care, or even prisoner education. The way the claimant’s case was advanced coupled offender behaviour programmes with detention, or at least its truncation. Detention is, of course, the other end of the spectrum to the administrative handling of the failed asylum seeker on his arrival at the immigration detention centre, which Buxton LJ treated as a governmental function. Offending behaviour programmes have an educational purpose, but their function is directed to reducing risk and thus release.[53]There is no need to decide the matter since the claimant’s case falls neatly within section 21B, which is directed expressly at discrimination by public authorities. In any event sections 19 and 21B are largely mirror provisions. With respect to this claim the potentially relevant differences are only twofold. First, public authorities may justify discrimination when treating the disabled person equally favourably would, in the particular case, involve substantial extra costs and, having regards to resources, the extra costs would be too great: s. 21D(4)(c). Secondly treatment, or a failure to comply with a duty, is justified if the costs of the public authority which give rise to the treatment or failure are a proportionate means of achieving a legitimate aim: s. 21D(5). Neither justification was seriously agitated before me by the Secretary of State.

(b) Discrimination and public authorities

[54]It is unlawful under the 1995 Act for a public authority to discriminate against a disabled person in carrying out its functions: s. 21B(1). Under section 49A(1) there is also a general duty imposed on a public authority in carrying out its functions, having due regard to the need, to eliminate discrimination; to eliminate harassment of disabled persons related to their disabilities; to promote equality of opportunity between disabled persons and other persons; to take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons; to promote positive attitudes towards disabled persons; and to encourage participation by disabled persons in public life.[55]Discrimination is defined in section 21D. Direct discrimination is dealt with in section 21D(1), the duty to make adjustments in section 21D(2). “(1) For the purposes of section 21B(1), a public authority discriminates against a disabled person if-(a) for a reason which relates to the disabled person’s disability, it treats him less favourably than it treats or would treat others to whom that reason does not or would not apply; and(b) it cannot show that the treatment in question is justified under subsection (3), (5) or (7)(c). (2) For the purposes of section 21B(1), a public authority also discriminates against a disabled person if- (a) it fails to comply with a duty imposed on it by section 21E in circumstances in which the effect of that failure is to make it- (i) impossible or unreasonably difficult for the disabled person to receive any benefit that is or may be conferred, or (ii) unreasonably adverse for the disabled person to experience being subjected to any detriment to which a person is or may be subjected, by the carrying-out of a function by the authority; and (b) it cannot show that its failure to comply with that duty is justified under subsection (3), (5) or (7)(c).” (i) impossible or unreasonably difficult for the disabled person to receive any benefit that is or may be conferred, or (ii) unreasonably adverse for the disabled person to experience being subjected to any detriment to which a person is or may be subjected, by the carrying-out of a function by the authority; and[56]Discrimination is not unlawful if it is justified. Justification is dealt with in sections 21D(3)-(5). Treatment, or a failure to comply with a duty, is justified if, in the opinion of the public authority, one or more of certain conditions specified are satisfied, and it is reasonable, in all the circumstances of the case, for it to hold that opinion: s. 21D(3). The excessive cost condition in section 21D(4)(d) has already been outlined. Otherwise the conditions for justification are that the treatment, or non-compliance with the duty, is necessary in order not to endanger health or safety; that the disabled person is incapable of entering into an enforceable agreement, or of giving an informed consent, and for that reason the treatment, or non-compliance with the duty, is reasonable in the particular case; and that the treatment, or non-compliance with the duty, is necessary for the protection of rights and freedoms of other persons: s. 21D(4). As we have seen treatment, or a failure to comply with a duty, is also justified if the acts of the public authority which give rise to the treatment or failure are a proportionate means of achieving a legitimate aim: s. 21D(5).[57]The duty to make adjustments, in section 21D(2), is spelt out in section 21E:
“(1) Subsection (2) applies where a public authority has a practice, policy or procedure which makes it- (a) impossible or unreasonably difficult for disabled person to receive any benefit that is or may be conferred, or (b) unreasonably adverse for disabled persons to experience being subjected to any detriment to which a person is or may be subjected, by the carrying-out of a function by the authority. (2) It is the duty of the authority to take such steps as it is reasonable, in all the circumstances of the case, for the authority to have to take in order to change that practice, policy or procedure so that it no longer has that effect. … (6) Subsection (7) applies where an auxiliary aid or service would- (a) enable disabled persons to receive, or facilitate the receiving by disabled persons of, any benefit that is or may be conferred, or (b) reduce the extent to which it is adverse for disabled persons to experience being subjected to any detriment to which a person is or may be subjected, by the carrying-out of a function by a public authority. (7) It is the duty of the authority to take such steps as it is reasonable, in all the circumstances of the case, for the authority to have to take in order to provide that auxiliary aid or service. …. (9) Nothing in this section requires a public authority to take any steps which, apart from this section, it has no power to take. (10) This section imposes duties only for the purposes of determining whether a public authority has, for the purposes of section 21B(1), discriminated against a disabled person; and accordingly a breach of any such duty is not actionable as such.”
[58]In R (on the application of Lunt) v Liverpool City Council [2009] EWHC 2356 (Admin); [2010] RTR 5, Blake J helpfully set out counsel’s suggested six step approach which a public authority will need to address in relation to its duty to make adjustments to avoid indirectly discriminating:
“1. Did the [public authority] have a practice policy or procedure? 2. Did that practice policy or procedure make it impossible or unreasonably difficult for disabled persons to receive any benefit that is, or may be, conferred by the [public authority]? 3. If so, is it under a duty to take such steps as is reasonable in all the circumstances of the case for it to change that practice policy and procedure so it no longer has that effect? 4. Has the [public authority] failed to comply with its duty to take such steps? 5. If so, is the effect of that failure such as to make it unreasonably difficult for [the disabled person] to access such benefit? 6. If so, can the [public authority] show that its failure to comply is justified … ?”
[59]As far as section 49A is concerned, it requires the relevant public body to have “due regard” to the specified matters. This does not impose a duty to achieve results. It does require the public body to take into account any countervailing factors which, in the context of the function being exercised, it is proper and reasonable for the public authority to consider: R (Brown) v Secretary of State for Work and Pensions et al [2008] EWHC 3158 (Admin) [81]-[82]. The decision maker need not refer expressly to s.49A. Rather the question is whether the relevant public body has in substance incorporated the thought processes required by section 49A: R(AM) v City Council et al [2009] EWHC 688 (Admin). The Secretary of State’s submissions[60]The Secretary of State accepts that the claimant has a learning disability that is of a nature and degree as to amount to a disability within the meaning of the 1995 Act. However, he denies that he has been in breach of any of his duties under the 1995 Act. Essentially, the Secretary of State’s case is that the claimant has received attention and assistance appropriate to his individual circumstances. The Secretary of State has explored and offered to the claimant a variety of means of enabling him to reduce the risk that he poses. The Secretary of State has had extensive discussions with the NHS to see whether the claimant should be accommodated in hospital, but it is now clear that that hospital is not appropriate. The Secretary of State has also offered the claimant educational provision which the claimant has accepted, but only to a limited extent. The Secretary of State has provided the claimant with an environment in which he can, in his day to day activities, learn to manage the stresses of daily life without resorting to violence. At the Sentencing Planning Board in December 2009 the claimant said that he had reached his “level” and had no interest in attending education. Notwithstanding that, the Secretary of State still intends to arrange a further specialist educational assessment of the claimant.[61]Moreover, the claimant has made progress. By his good behaviour and increasing maturity since 2004 he has demonstrated a reduction in the risk he poses. This has been recognised by the Parole Board. Realistically, this is likely to remain the most effective means towards the end of satisfying the board that it is no longer necessary for the claimant to be confined. He has transferred to a category C prison, HMP Lindholme, where he has the opportunity to show how he can manage in conditions of lesser security. There is no reason for him not to continue to make further progress, and to do so without undertaking any formal accredited offending behaviour programme. The Secretary of State notes that the claimant himself asserts that he has made considerable progress, without completing any accredited offending behaviour programmes. In October 2009 the Parole Board agreed and congratulated the claimant on his progress. The various policy documents and the facts of the claimant’s individual case together demonstrate that the defendant has had due regard to the matters specified in section 49A.[62]As far as offending behaviour programmes are concerned, the Secretary of State points out that the release of a life prisoner depends on satisfying the Parole Board that it is no longer necessary for him to be confined: Crime (Sentences) Act 1997, s.28(6)(b). Participation in offending behaviour courses is neither necessary, in fact or in law, nor sufficient, to achieve release. What, if any, offending behaviour programmes may help a prisoner to reduce his risk of re-offending will depend on the facts of each case. Even if a particular course might benefit a particular prisoner, it does not follow that the prisoner will not be released unless he has successfully completed that course. The claimant has been assessed as unsuitable for various courses by reason of his learning disability. The claimant’s intellectual level is such that he would not be able to keep up with the course. Indeed, placing the claimant on such a course could be counterproductive. It would not be reasonable to provide bespoke courses for all prisoners who, by reason of disability, are unable to follow mainstream offending behaviour courses. The type and severity of disablements is so varied that it would be prohibitively expensive to provide individually tailored courses. Further, in the case of a learning disability, prisoners may lack the intellectual ability to assimilate the abstract concepts that feature in such courses so that no amount of adaptation will render the course suitable for them. Discussion and analysis[63]It seems to me that the most convenient approach to the central issue in this case is to focus on the duty to make adjustments and to utilise the six-step analysis set out in Lunt [2009] EWHC 235; [2010] RTR 5. That was in essence how his case was advanced. Each step in the analysis of whether there is indirect discrimination must be approached, however, against the backdrop of the broad and beneficial interpretation of the legislation which is demanded by the Court of Appeal’s judgment in Gichura [2008] EWCA Crim 697; [2008] ICR 1287.[64]The first step is easily surmounted: the Secretary of State has policies, practices and procedures regarding access to offender behaviour programmes. As most commonly expressed in PSO 4700 that is that short tariff lifers should be given access to sufficient offending behaviour coursework to give them every opportunity to demonstrate their safety for release at tariff expiry, and that short tariff lifers must be prioritised for offending behaviour programmes. PSO 2855 adds that it is vital that prisoners with disabilities be able to access offending behaviour programmes as identified in a prisoner’s sentence plan, with adjustments as necessary. “Programmes”, as the May 2007 document on assessment for offending behaviour programmes put it, “make a difference”.[65]Then it is necessary to consider whether the practice, policy or procedure makes it impossible or unreasonably difficult for the claimant to undertake offending behaviour programmes provided to other prisoners. It will be recalled that both the May 2007 and May 2008 documents about suitability for accredited programmes contain the explicit, and italicized, statement that IQ in the region of 80 or below may prevent meaningful engagement with the material in a programme. That makes it difficult, or even impossible, for inmates with a learning disability like the claimant’s to make use of offending behaviour work within the same period as other prisoners.[66]As far as the claimant is concerned, the reports for his first Parole Board review in May 2003 identified the claimant’s risk factors as including violence, poor emotional control, substance abuse and distorted thinking and recommended his assessment for a number of offending behaviour programmes as suitable to address his risk factors. As early as 2005 the claimant’s external probation officer said that it was of particular importance that the claimant complete offending behaviour programmes so release could be considered. That was underlined in the Parole Board report in January 2006 –without participation in offending behaviour programmes his risk reduction could not be measured and no positive recommendation could be made. Dr Ball, of the offender manager unit at HMP Long Lartin, expressed the same sentiments in November 2008.[67]Yet the claimant has been prevented from making use of those courses, and the reason for this is his learning disability. The evidence on this is quite clear. To recapitulate briefly, the HMP Long Lartin chartered forensic psychologist said in December 2004 that the claimant’s intellectual disability resulted in his not being offered a place on a programme; the Parole Board in February 2006 noted the consensus that his literacy problems made participation on accredited offending programmes impossible (“yet without such participation your risk reduction cannot be measured”); the IQ assessment report of October 2007 concluded that his score precluded him from offending behaviour programmes and that he was unable to access them because of poor literacy skills due to dyslexia; and the probation officer in his September 2009 report noted that he had been “let down by the system in that the treatment he required has not been forthcoming due to his learning difficulties … and he has languished in prison”.[68]To my mind all this demonstrates that the practices, policies or procedures of the Secretary of State have made it impossible for this claimant to make use of offending behaviour work when the clear message was that he needed it. It follows, under section 21(1), that the Secretary of State came under a duty to take such steps as were reasonable in all the circumstances of the case to change those practices so that the claimant could access offending behaviour work in the same way as prisoners who are not so disabled. The claimant has persuaded me that the Secretary of State has failed to take such steps and to consider what steps could be taken. Those steps might include alternative means, including education and adapted courses, to enable the claimant to undertake offending behaviour work; additional aids or services, to enable the claimant to undertake mainstream courses; and transfer.[69]This failure to take steps has been recognised in the system. In his report on the claimant Dr Kearns recounts the opinion expressed to him by Dr Kenny Herbert, a consultant forensic psychiatrist at HMP Long Lartin. Dr Kenny Herbert said that a deficit appeared to exist in the provision for people with needs such as the claimant, which should be rectified. In a letter to the claimant’s solicitors on 27 July 2009, the Ministry of Justice replied as follows to a question about the availability of auxiliary aids and services which might be available to assist those like the claimant to undertake existing offending behaviour programmes, normal or adapted versions. “There are no additional resources or services available at Long Lartin. Where the presence of a learning difficulty/disability prevents access to offender behaviour programmes, Long Lartin will make a referral to the offender learning skills provided, i.e. Manchester City College, or to specialist learning disability units. There is a broad range of other interventions that may be able to prepare an individual for offending behaviour work or that may be used for addressing offender’s risks. … Long Lartin does not have the ability to facilitate one to one offending behaviour programmes and there are no adapted one to one behaviour programmes available nationally.” In reply to a further question whether there were any prisoners with learning disabilities, throughout the prison estate, not just HMP Long Lartin, who received offending behaviour work on a one to one basis, the answer was as follows:
“Information on prisoners undertaking offending behaviour work on a one to one basis in establishments is not held centrally. Some prisons have in the past offered individual support for prisoners attending offender behaviour programmes between group work sessions for those deemed to be struggling, but this has not been restricted to those with learning difficulties. Two programmes have been adapted for a developmentally impaired/learning disabled population. Neither of these courses are delivered at Long Lartin. In respect of Long Lartin specifically, Long Lartin does not offer one to one offending behaviour work.”
[70]One dimension to the Secretary of State’s failure to comply with his duty to take reasonable steps is that he has not explored adequately making adjustments to existing behaviour programmes so the claimant could benefit. Dr Kearns suggests that the claimant would benefit from an adapted programme, and that this should be offered to him. There is no evidence before me that the Secretary of State has consulted the numerous specialist organisations listed in PSO 2855 and the HMP Long Lartin’s “Disabled Prisoner Policy”. Not until December 2008 did HMP Long Lartin seek advice from the central Offending Behaviour Programmes Unit in London. It suggested attempting an existing programme to be delivered on a one to one basis by a person qualified and experienced in the field of learning disabilities. At that point HMP Long Lartin was unable to identify a person possessing all of these qualities and qualifications at the local level. The prison also blamed the claimant for disengaging.[71]A further avenue would have been to consider providing a suitably qualified person to assist and support the claimant so that he could take part in offending behaviour programmes. The claimant’s basic skills literacy teacher suggested a scribe in 2004 and 2006, but there is no evidence that steps were taken to consider whether this would be effective. Finally, the Secretary of State might have considered transferring the claimant to an establishment which was better able to meet his needs. Movement to NHS establishments was explored, even though it was ultimately decided that this was inappropriate, but not whether another prison establishment might be better able to meet the claimant’s needs.[72]The upshot has been that the claimant has been shut out of any offending behaviour work. In essence the Secretary of State responds that offending behaviour programmes were never appropriate for the claimant; that, in any event, he has made progress without them; and that he has spurned opportunities offered. The problem with the first argument is that over the years the Secretary of State, through his various arms, has said that the appellant should, at the least, be assessed for offending behaviour programmes. It is far too late now for Dr Bailey to contend on behalf of the Secretary of State that this was wrong. The fact is, as she concedes in her statement, offending behaviour programmes for this claimant “have remained a sentence plan target, albeit a prospective one”.[73]The second limb of the Secretary of State’s case, is that the claimant has made progress without offending behaviour work. That is true. The progress is most succinctly stated in the October 2009 decision of the Parole Board. The Secretary of State also contends that, additionally, the claimant has needed time to mature. But the key point is that the alternative means offered to the claimant to reduce his risk have been limited. His risk of causing serious harm to the public remains high, despite his having served well over twice his tariff. In my view it cannot be said that, by these other steps, the Secretary of State has provided this disabled person with access to a service as close as it is reasonably possible to get to the standard normally offered to other prisoners: see Lunt at [58]-[59].[74]It must be accepted that the claimant has, at various points, disengaged. However, I am persuaded that this has been only partial and has usually had a good explanation. In my view it is not fatal to his claim. In particular, the claimant completed four one to one sessions with a specialist basic skills literacy teacher in 2004, then six more in early 2005. He left education on 5th May 2005, but there is no prison record giving his reason for leaving and he now gives the explanation I set out earlier. He achieved entry level one in key skills in 2006, but ceased due to reaching his limit and more specialist help being required in helping him with his dyslexia. One to one work stopped being available at HMP Long Lartin, and it appears the claimant stopped the toe by toe scheme when his mentor went to another establishment. However, the claimant expressed willingness to undertake courses. While he has disengaged at times, this seems to have been temporary, and appears to have been at least in part because he was frustrated at his lack of progress and not being offered suitable work. It is significant that what appears to be the only time he has been offered one to one work with a specialist tutor, for basic skills, he did engage. Any disengagement has not prevented the education being successful. The suggestion that any disengagement would increase the claimant’s risk is contradicted by the risk reduction he has achieved. In any event, the Secretary of State’s policy is that low levels of motivation should not normally prevent an offender being assessed as suitable for offending behaviour work.[75]Finally, there is justification under section 21D(4)-(5) to consider. At one point the Secretary of State raised the spectre of ruinous costs if adapted courses had to be offered to all prisoners with limited intellectual abilities. The answer to that is that this case is concerned with this claimant and the failure to take reasonable steps in his case. In oral argument the justification advanced was that even the claimant cannot say what an adapted course for him would look like. In my judgment this is no answer given the statutory tests for justification. Moreover, the Secretary of State’s letter of 10 February 2010 reveals that steps in this regard are being taken.[76]In both written and oral argument the claimant focused on the duty to make adjustments. Almost as an afterthought it was contended that there was direct discrimination, as well, in the Secretary of State’s decisions not to make available places on relevant offending behaviour courses. The decision meant less favourable treatment, it was said, in that they caused the claimant the detriment of far slower progress through the prison system. Comparable prisoners, who do not have the claimant’s disability, had places made available to them on all courses relevant to their risk factors, with a view to their being released at tariff expiry. Given the lack of detailed elucidation of these arguments I am reluctant to make any finding of direct discrimination. For similar reasons my view is that the submission about breach of the general duty under section 49A should be put to one side. Public Law Duties[77]As a second ground the claimant invokes that body of public law establishing that the Secretary of State is under a duty to comply with his policies unless he has good and clear reasons for not doing so: Gransden & Co. Ltd. & anor v Secretary of State for the Environment & anor [1987] 54 P. & C. R. 86, 94. In particular, it was submitted, the Secretary of State was in breach of PSO 4700, in not prioritizing offending behaviour programmes for the claimant; PSO 2855, in not consulting specialist organizations or considering alternative offending behaviour work; PSI 2008/31, in not ensuring access to offending behaviour work or considering reasonable adjustments to existing programmes or transfer; and the May 2007 and May 2009 policy statements, in the assessment of his suitability for offending behaviour programmes.[78]The Secretary of State responds to this that he has throughout acted in accordance with his policies and the claimant has been given assistance and opportunities appropriate to his individual circumstances. Moreover, it is said, the policies are not as definite in their language as the claimant would suggest. Thus PSO 4700, in relation to short term lifers, is addressed to ensuring that those with short tariffs can undertake offending behaviour programmes within a relatively short period rather than guaranteeing their availability to all prisoners.[79]In my judgment once offending behaviour work became, as Dr Bailey puts it, part of this claimant’s sentence plan target, albeit prospective, certain of the Secretary of State’s policies applied. PSO 4700 provides that an essential element for short tariff lifers is that they “complete any assessment required”. PSO 2855 is another example: as quoted earlier, it provides that where attendance at particular courses is necessary for the successful completion of a prisoner’s sentence, reasonable adjustments must be made to allow prisoners with disabilities to participate. Under PSI 31/2008 prisoners with disabilities must be able to follow their sentence plans and satisfy the conditions for parole. None of these policy requirements were fulfilled in the case of this claimant through enabling him to access some type of offending behaviour work. The Secretary of State has not put forward good and clear reasons for such breaches. CONCLUSION[80]Offending behaviour programmes are neither a necessary nor sufficient condition for release from prison. There are other recognised pathways to reduce re-offending and to achieve release. Yet offending behaviour work has been identified as an avenue to these goals for this claimant. The effect of the Secretary of State’s decisions, as I have described them in this judgment, has been that the claimant has not been able to access any offending behaviour work. In my judgment steps should have been taken so that he could be provided with some type of offending behaviour work to give him the opportunity to demonstrate, eventually, his safety for release. Other steps have been taken, and assistance provided, but nothing comparable to offending behaviour work. It is clear to me that this failure cannot be justified. In the circumstances of this claimant’s case the Secretary of State has unlawfully breached the statutory duty imposed on him to take steps so that his practices, policies and procedures do not discriminate against this intellectually disabled prisoner.[81]A second string to the claimant’s bow was that in his case the Secretary of State breached his public law duties, and departed from his policies without good reason, by failing to take steps towards providing the claimant with offending behaviour work. In my view, given that offending behaviour work became, in effect, part of his sentence plan, even if only prospective, this part of the claimant’s case also succeeds.[82]Thus the claimant is entitled to a declaration that the Secretary of State has breached his duties towards him by failing to take steps to enable him to undertake some type of offending behaviour work. The claimant seeks a mandatory order that the Secretary of State arrange for an assessment of the claimant and a programme of steps to be taken towards providing him with suitable offending behaviour work. Given that the Secretary of State will act appropriately in the light of the declaration there is no need for such an order. In any event the recent letter of the Secretary of State indicates that these matters are in train, although at first blush the time scale there must be of some concern.

Cited in 10 later judgments

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