Hall, R (On the Application Of) v Secretary of State for Justice [2018] EWHC 1905 (Admin)

[2018] EWHC 1905 (Admin)

Case No CO/138/2018

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Civil Justice Centre

Venue Manchester M60

Date 27/07/2018

Before

MRS JUSTICE MOULDER

Between

The QueenClaimant

Secretary of State for JusticeDefendant

Mr Adam Straw (instructed by SL5 Legal, Tuckers Solicitors) for Claimant

Mr Richard O’Brien (instructed by Government Legal Department) for Defendant

Hearing Hearing dates: 4 July 2018

Judgment Approved

The Hon. Mrs Justice Moulder DBE :

[1]This is an application for judicial review. The claimant’s principal case is that the defendant has breached the duty to make reasonable adjustments for disabled persons within the Equality Act 2010.

[2]Permission was granted by order of HHJ Pelling QC dated 8 February 2018 in relation to two of the grounds: Ground 2 (failure to provide reasonable adjustments under the Equality Act 2010) and Ground 3 (failure to comply with policy PSI 16/2015 and 3/2016).

Background

[3]The claimant now aged 45 is currently a prisoner in HMP Manchester.

[4]In November 2005 he was given an indeterminate sentence for public protection (“IPP”) for a robbery against his parents with a minimum term of two years (less 93 days). During the early hours of 3 June 2005, he entered the house, went to their bedroom and began making demands for money. The demands included threats of physical violence. His mother gave him money and he left the house. He has convictions for a variety of offences including assault and harassment dating back to 1991. He originally left home after being charged with attempted murder against his parents.

[5]His minimum term expired in August 2007.

[6]On 3 September 2014 he had a Parole Board hearing. Dr Helen Pearce, a consultant psychiatrist, prepared a report dated 27 August 2014 for the Parole Board oral hearing. In that report Dr Pearce noted (paragraph 7.66) that Mr Hall had been assessed as having a personality disorder with antisocial/dissocial, narcissistic traits and obsessional traits. Dr Pearce was of the opinion that Mr Hall’s history and presentation was “strongly suggestive of high functioning autism/Asperger Syndrome” (paragraph 7.70). She concluded that the background information and Mr Hall’s presentation combined “to suggest a diagnosis of autism spectrum disorder, specifically Asperger Syndrome”. Dr Pearce concluded that there could be consideration of future placement for treatment in a hospital setting in which case she recommended that this was an “autism specific service.” She also stated that:

“he is unlikely to make therapeutic progression if he remains within the prison setting, and the environment could contribute to the progressive decline in his presentation rather than improvement with associated risk reduction.”

[7]From September 2014 to February 2015 the claimant was in HMP Dovegate.Dr Pearce records that the claimant had support there from professionals recognising the impact of autism and how this impacted upon his functioning. She noted that his presentation was more “settled” (paragraphs 13.8 and 13.9 of her 2015 report).

[8]From February 2015 to June 2015 he was in St Andrews, a low secure hospital specialising in the management of autism for a period of detailed assessment of his mental disorder and commencing appropriate treatment (St Andrews discharge report dated 5 June 2015). The discharge report prepared by Dr Carlo Thomas, a consultant forensic psychiatrist, noted that his symptoms of autism spectrum disorder (Asperger syndrome) were explored by the psychologist at St Andrews. The report notes:

“[the claimant’s] engagement had been poor and it has been an extremely challenging effort to get him to engage. He was clearly apprehensive about losing his diagnosis. He commented that he was not “mentally prepared” for the “test”

. He had been reading extensively on ASD and personality disorder. Books on how to test for ASD and PD have been found in his possession. There were four appointments cancelled with the psychologist who had organised the ADOS assessment before he decided to engage.”

[9]Dr Thomas noted that Mr Hall was admitted to St Andrews for a period of detailed assessment of his mental disorder. He stated:

“In the assessment process it is important to note that Mr Hall tends to extensively research assessment tools and processes before participating in assessments. There is evidence of him attempting to manipulate results on standard assessment tests by possibly giving answers or eliciting performances that he believes would favour an outcome he desires.… It would hence be important to look at the entire trajectory of his progress and the symptoms that he has presented with consistently, that have been objectively reported over the years. Mr Hall engaged with part of an ADOS assessment conducted by Dr Zoe Whitaker.… Mr Hall became uncooperative after this and develop the belief that staff were going to “stitch him up”

. He developed a worry that his ASD diagnosis would be taken away and a diagnosis of personality disorder given to him. He subsequently became uncooperative with the assessment.… There have been extensive discussions with psychology in relation to the presence of potentially some symptoms of autism and a comorbid personality disorder. Mr Hall has met cut off for psychopathy has been diagnosed with antisocial personality disorder in the past. Based on his observed behaviour and incidents on the ward and also based on the reported incidents from his progress in prison there is sufficient evidence to support the diagnosis of a paranoid personality disorder in addition. The relationship between autism spectrum disorders and personality disorders is not completely clear. Both conditions imply lifelong impairment.… As indicated in previous reports there may be an overlap of symptoms between the Autism and Personality Disorders in Mr Hall.” [emphasis added]

[10]There were episodes of verbal aggression whilst he was at St Andrews. In June 2015 the aggression escalated, he was found breaking the bathroom and trying to throw a piece from the bathroom fitting to break the CCTV. Police attended and restrained him. The claimant made threats to do as much damage as he could and threatened to kill staff. Police attended and restrained him and he was transferred to HMP Nottingham.

[11]In June 2015 he was then transferred to the Northdale centre in Roseberry Park Hospital where he was an inpatient with the autism service. Dr Pearce was the lead clinician within the Autism Specific Secure Service at Roseberry Park. She provided an updated psychiatric assessment and report on the claimant dated 21 September 2015. The report was prepared at the request of the claimant’s solicitors at a time when consideration was being given to an application to the Court of Appeal to seek replacement of the IPP with a hospital order under section 37/41 of the Mental Health Act 1983.

[12]A number of incidents of verbal and physical aggression to staff and patients at the Northdale centre led to his admission to conditions of high secure services at HMP Holme House at the end of November 2015. These incidents at Roseberry Park included an incident in August 2015 when he punched a nurse in the jaw and she was apparently knocked unconscious and in November 2015 he attacked staff with a table tennis net, placing one member of staff in a headlock and injuring the eye of a member of staff (report of Dr Janine Brazier dated 2 May 2017).

[13]In March 2016 he was admitted to Ashworth Hospital from Holme House under section 47/49 of the Mental Health Act. In July 2016 the claimant was assessed by Dr Rooprai who recommended that he was moved to conditions of lesser security and that he required treatment within a specialist Asperger’s facility (CPA review at Ashworth Hospital dated 26 May 2017). From July 2016 onwards, the claimant’s behaviour was reported as having deteriorated with abusive behaviour towards staff and peers. He was placed in seclusion in September 2016. In January 2017 it was proposed to move the claimant to a different ward. Following the move to that ward, Mr Hall remained in seclusion but exclusively because he elected to do so as a protest at his transfer. Despite being in segregation the claimant had verbal altercations with other peers. Screens were erected by his door in an attempt to reduce further verbal altercations. The team at Ashworth tried to end seclusion but Mr Hall refused to do so as he insisted on having two blue chairs in his room and the chairs had to be ordered and Mr Hall refused to move until they arrived. There were incidents of verbally abusive threats towards staff and peers, including racial abuse. Mr Hall was spoken to by the police regarding these incidents. In March he flooded his room and had to be relocated. The claimant reacted by performing a dirty protest in the room facilitating the need for another move.

[14]In March 2017 the claimant was offered a choice between an antipsychotic medication and being returned to prison because he was not engaging in treatment. The hospital concluded that since he was unwilling to engage in any therapeutic activities that would benefit him, the only option was to return him to prison. The report concluded that the claimant would benefit from “a specialist secure unit to manage his Asperger’s symptoms accordingly.”

[15]A report by Dr Xavier, the claimant’s responsible clinician since his admission to Ashworth Hospital, dated 22 August 2017, stated that in his view Mr Hall suffered from autism spectrum disorder, Asperger’s syndrome. He expressed the view that it was not “of a nature or degree that warrants detention in hospital”. Dr Xavier stated that the claimant had “not engaged in any of the assessments that would have allowed the clinical team to consider suitable placement within specialist Asperger’s unit in the NHS.” He also noted in the report that the claimant had stated that he did not wish to work with him and his team in order to make progress and wished to be returned to prison. Dr Xavier stated that:

“my view is that a return to prison can be facilitated and that work can be completed within prison to help him progress if he is willing to do so.”

[16]On 30 August 2017, the claimant was returned to HMP Manchester from Ashworth Hospital. The claimant was initially located on the health care unit at HMP Manchester for assessment but after two days was relocated to the segregation unit. He was initially segregated due to his behaviour towards staff and other inmates, thereafter he remained in segregation due to his refusal to locate elsewhere in the prison on the basis of his fears for his safety on the wing (paragraph 8 of the witness statement of Rebecca McDonnell, a probation officer and the claimant’s Offender Supervisor upon his transfer to HMP Manchester).

[17]It was intended from the outset that a suitable specialist service would be identified elsewhere to which Mr Hall could be referred for assessment (paragraph 13 of Ms McDonnell’s witness statement). In the meantime, it was Dr Xavier’s view that Mr Hall could be managed satisfactorily at HMP Manchester.

Evidence

[18]As well as various medical reports and prison records, the court had before it a number of witness statements.

[19]For the claimant the court has witness statements from: i) the claimant dated 3 January 2018, 29 January 2018 and 31 May 2018; ii) from Mr Sperling, the solicitor acting for the claimant, dated 8 June 2018.

[20]For the defendant the court had witness statements from: i) Georgina Vince, a psychologist and the Specialist Pathways Progression lead for the Long Term and High Security Estate, dated 27 June 2018; ii) Brendan Burke, Head of Drug Strategy and Healthcare at HMP Manchester dated 26 June 2018; iii) Rebecca McDonnell dated 18 May 2018; iv) Suzanne Wheeler, the psychology clinical lead for Specialist Interventions at HMP Manchester, dated 27 June 2018; v) Jacqueline Gourley, Head of Residence at HMP Manchester responsible for accommodation, dated 16 May 2018.

[21]Following the oral hearing the following statements were produced, in response to the direction of the court, in relation to HMP Wakefield: i) from Georgina Vince dated 9 July 2018; ii) from Mr Sperling dated 13 July 2018; iii) from the claimant’s mother, Roberta Hall, an unsigned and undated statement.

[22]Also, as directed by the court, counsel made further submissions following the oral hearing, in relation to the position of the claimant with regard to HMP Wakefield. Counsel for the defendant submitted that the submissions on the part of counsel for the claimant went significantly beyond the issue of HMP Wakefield. I agree that the submissions of counsel for the claimant went beyond the issue of HMP Wakefield and to the extent I have had regard to these further submissions, it is on the basis that they merely repeated (or in certain instances sought to reformulate) certain submissions already made and therefore in my view it was not necessary in order for the court to deal fairly with this issue that counsel for the defendant should respond to the wider submissions or that the court should afford a longer period to the defendant within which to respond.

Relevant law

[23]The relevant law in this case is largely common ground. Section 6 of the Equality Act 2010 provides:

“6 Disability (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities. … (3) In relation to the protected characteristic of disability— (a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; (b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability.”

[24]In relation to the claimant, it is common ground that he has a “particular disability” within the meaning of section 6. For the claimant it is submitted that the “particular disability” is autism. For the defendant it was submitted that the “particular disability” was Asperger’s syndrome.

[25]The claimant referred the court to Guidance issued by the Government in May 2011 in relation to the Equality Act which makes reference to autism and to Asperger syndrome as “a form of autism”.

[26]Dr Pearce in her 2015 report (paragraph 11.2) described autism as a developmental disorder with difficulties in social communication and reciprocal social interactions and in social imagination and restricted, repetitive and stereotyped behaviours and interests and sensory sensitivities. She also noted (paragraph 11.13) that the diagnostic classification of autism is changing and progressing. She noted that the term “Autism Spectrum Disorder” had been used despite it not appearing within the classification system. She noted that it was likely that the categorisation system would replace the subcategories (including Asperger’s Syndrome) with the broader term of Autism Spectrum Disorder. She stated that the clinical assessments confirmed that the claimant has Autism (paragraph 12.2) whilst also noting that the claimant has previously been described as meeting the criteria for personality disorder (which is discussed further below in the context of this claim).

[27]Other evidence also refers to “autism” as the claimant’s disability, including the most recent witness statement of Ms Vince for the defendant dated 9 July 2018.

[28]Whilst accepting that the term “autism” is a broader term than Asperger’s syndrome and that it encompasses a range of disability, for the purposes of this claim, it seems to me (as discussed below) that the issue before this court does not turn on the precise form of autism and therefore I accept that the “particular disability” within the meaning of section 6 of the Equality Act is that of autism.

[29]Section 29 of the Equality Act states:

“… (6) A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation.” (7) A duty to make reasonable adjustments applies to— (a) a service-provider (and see also section 55(7)); (b) a person who exercises a public function that is not the provision of a service to the public or a section of the public.”

[30]The duty to make reasonable adjustments is set out in section 20 of the Equality Act (as modified by Schedule 2):

“(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A's puts disabled persons generally at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (4) The second requirement is a requirement, where a physical feature puts disabled persons generally at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take (a) to avoid the disadvantage, or (b) to adopt a reasonable alternative method of providing the service or exercising the function. (5) The third requirement is a requirement, where disabled persons generally would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.”

[31]In relation to each requirement, the relevant matter is defined in Schedule 2 as the provision of the service, or the exercise of the function, by A.

[32]Section 21 of the Equality Act provides:

“(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.”

[33]Both parties rely on the Code of Practice issued by the Equality and Human Rights Commission in interpreting the relevant statutory provisions. The provisions of the Code are required to be taken into account by a court in any case in which it appears to the court to be relevant (section 15(4) of the Equality Act 2006; section 1.5 of the Code).

[34]The claimant submitted that in order to determine whether there has been a breach of the duty to make reasonable adjustments, the court should follow the three stage approach taken in R (on the application of VC) v The Secretary Of State for the Home Department

[2018] EWCA Civ 57

at [147]: i) to identify the PCP (or in this case, the PCP and/or physical feature) which is said to put the disabled person at a substantial disadvantage; ii) to determine whether the PCP in fact puts disabled persons at a substantial disadvantage; iii) to assess whether the Secretary of State took such steps as it was reasonable to take to avoid the disadvantage.

[35]The defendant did not dispute the claimant’s submission that the phrase “provision, criterion or practice” should be widely construed to include policies, rules, practices and arrangements including a “one-off” or discretionary decision (paragraph 7.43 and 5.6 of the Code of Practice).

[36]In submissions counsel for the claimant did not focus on particular rules or policies (other than the requirement for the claimant to transfer out of segregation) butrelied generally on the absence of autism specific services within the prison service, the lack of instruction and training for staff and the fact that staff communicated with prisoners “in a normal fashion”. The claimant also relied on the “physical feature” that is that the main wings at HMP Manchester were, according to the claimant, large, busy, noisy and crowded thereby putting prisoners with autism at a substantial disadvantage. Finally, the claimant submitted that “but for the provision of auxiliary aids or services” in the form of a specialist autism service, specially trained staff, a structured environment and appropriate interventions, prisoners with autism are put at a substantial disadvantage.

[37]For the claimant it is submitted that the absence of a specialist autism service puts autistic prisoners at a substantial disadvantage in that without a specialist unit or access to specialist services, autistic prisoners are unable to make progress within the prison system. The claimant relied on the 2015 report of Dr Pearce (at paragraph 14.17 and 15.67) that the claimant required treatment in and the support of a specialist autism specific service. Counsel further submitted that the claimant’s symptoms and needs were “typical” of a number of autism sufferers.

[38]It was not entirely clear from the submissions whether the claimant relied on prisoners with autism as a specific category: in submissions at one point, counsel for the claimant identified the category as category B prisoners with autism. It did not however appear to be disputed by the defendant that, in the absence of specialist autism services within prisons, prisoners with autism are put at a substantial disadvantage within the meaning of the Equality Act.

[39]I therefore proceed on the basis that housing prisoners in prisons where there is no access to autism specific services amounts to a PCP and this PCP puts autistic prisoners at a substantial disadvantage. Further, as noted below, counsel for the defendant conceded that if the claimant had in fact gone to the main wing at HMP Manchester, he would have suffered a substantial disadvantage.

[40]The real issue between the parties, as advanced in submissions, arises in relation to the third stage identified in VC, namely whether or not in this case the defendant has breached its duty to make reasonable adjustments by failing to “take such steps as it is reasonable in all the circumstances of the case to have to take in order to make adjustments”(paragraph 7.29 of the Code).

[41]In proceeding to consider the proposed adjustments, I note that on the authority of the Court of Appeal decision in VC at [159] – [161], claimants are required to provide no more than “some indication as to the adjustments it is alleged should have been made” and that the burden is on the Secretary of State to show that he complied with his duty to make reasonable adjustments.

[42]I also take into account that the duty to make reasonable adjustments is an anticipatory duty: Finnigan v Chief Constable of Northumbria Police

[2013] EWCA Civ 1191

at [32].

The claimant’s case concerning reasonable adjustments

[43]In his witness statement (paragraph 77) Mr Sperling lists the following “reasonable adjustments” which the claimant states the defendant has failed to make, contrary to the duty in the Equality Act 2010: i) to make available to the claimant a place at a suitable establishment with specialist services for autistic spectrum disorder and Asperger’s syndrome; ii) to make available to the claimant a place at a suitable establishment which can cater for his specific needs and in particular that there is a staff team who support the claimant and have a good understanding of autism with skill and expertise and training; that there is an appropriate physical environment which is not noisy or crowded and is highly structured with a predictable routine. He should be in a small ward with few patients. He needs intervention to help him understand rules, to have appropriate behaviour modelled for him, to have directed teaching and reinforcement about social relationships, the management of emotion and appropriate behaviour; iii) to allocate specially trained and autism aware staff; iv) to ensure staff understand the best way to communicate with and manage the claimant and understand the manifestations of autism; v) to not order the claimant to relocate from segregation to normal wings or health care and to not subject him to disciplinary action for failing to obey those orders.

[44]There is clearly an overlap in the list of adjustments which the claimant asserts are “reasonable” for the claimant and have not been made. In essence they can be summarised as follows: i) a suitable establishment with specialist services for autism which would involve both a suitable environment, appropriately trained staff and teaching; ii) specially trained staff who understand the way to communicate with prisoners with autism; iii) not to order the claimant to relocate from segregation to normal wings.

[45]In section 14 of her report, Dr Pearce refers to the importance for professionals supporting the claimant to understand autism and the impact of autism upon him. She states that staff supporting the claimant require skill and expertise and training in understanding autism and in understanding the impact of autism upon the claimant.

[46]Dr Pearce also states that the claimant requires the support of a “specialist therapeutic setting” (paragraph 14.17) which she describes as a setting with a high level of structure and predictability and which provides a setting to ensure social learning and development can occur (paragraph 14.20). Dr Pearce also refers to the need for a model of positive behaviour support with motivators identified to progress that development if risk behaviours are to be addressed (14.27 and 14.28). Staff supporting the claimant require skill, expertise and training in understanding autism and support in understanding the impact of autism upon the claimant (paragraph 14.6). Staff supporting the claimant need a good understanding of his communication style and a high level of awareness of their own communication style and how this may impact upon him (paragraphs 14.12 and 14.13). Continued intervention is needed to support the claimant in developing skills and to allow the claimant to make future transitions and progress (paragraph 14.8).

[47]The claimant relied on the following section of Dr Pearce’s report under the heading “Return to prison”: that the incarceration and attempted intervention within the prison system “had been monumentally unsuccessful” (paragraph 15.64) and that the claimant would be unlikely to make therapeutic progression in a prison setting and the environment would be likely to contribute to the progressive decline in his presentation rather than improvement with associated risk reduction. (Paragraph 15.65). Dr Pearce states:

“in my opinion this treatment can only be delivered within a specialist autism specific service (paragraph 15.67).”

[48]Counsel for the claimant also submitted that in the case of prisoners with a sentence of IPP, the Defendant’s policy (‘the Indeterminate Sentence Manual’) is intended to enable such prisoners to make progress to reduce their risk and thus move towards release. Counsel therefore submitted that this “weighs heavily” in favour of the need for the defendant to make the adjustments for autistic prisoners that the claimant identified.

Suitable establishment with specialist services for autism

[49]The claim is focused on the alleged failure of the defendant to make reasonable adjustments whilst the claimant has been detained at HMP Manchester.

[50]It is accepted for the defendant that there are currently no specialist autism units in category A or B prisons (paragraph 2 of the witness statement of Georgina Vince dated 27 June 2018) although in that witness statement Ms Vince notes that a specialist unit is in development at HMP Wakefield to take “predominantly autistic adult males from LTHSE for whom no other treatment pathway is available given their current complex needs”.

Claimant’s submissions

[51]It was submitted for the claimant that the defendant had “known for years” that it was under an anticipatory duty to make adjustments for autistic prisoners and what the specific needs of those prisoners are. It was further submitted that the defendant was “plainly aware” of the need to make adjustments for autistic prisoners because it provided a specialist autism service at Feltham YOI in 2012 and in HMP Dovegate in 2014. Counsel for the claimant relied on a statement of the Prisons Minister in March 2015 which he submitted stated that all prisons should obtain autism accreditation. Defendant’s submissions

[52]The defendant relies on PSI 32/2011 (Ensuring Equality), Annex G (Reasonable Adjustments) that in considering what is reasonable, factors to consider include how practicable it would be to take the steps, how disruptive taking the steps would be and the extent of the prison’s financial and other resources (G2 and G3). The defendant stressed that it is an “intensely practical” test (Paulley v FirstGroup plc

[2017] UKSC 4

at [83]). Further, it was submitted for the defendant that the limits of the duty in the prison context are evident from the decision in R (on the application of H) v Secretary of State for Justice

[2015] EWHC 4093 (Admin)

and that just because something was theoretically possible (in that case the theoretical solution of the construction of an entirely new prison or using a helicopter for prison visits) does not mean that it amounts to a requirement under the Equality Act.

Steps taken whilst at HMP Manchester

[53]At Ashworth Hospital in July 2016 the claimant was assessed by Dr Rooprai, who recommended that the claimant be moved to conditions of lesser security, and that he required treatment within a specialist Asperger’s facility. As the claimant was unwilling to engage in any therapeutic activities that would benefit him, the only option was to return him to prison.

[54]It was proposed by Dr Xavier that Mr Hall would return to prison on the basis that he had had discussions with the claimant with regard to the work he would have to complete with the offender supervisor and the claimant was said to be willing to work with the offender supervisor “to address issues that he needs to within the prison system to attend his next parole hearing with the view of possible release.”

[55]It is in these circumstances that the claimant found himself transferred to HMP Manchester.

[56]In September 2017 Ms McDonnell approached HMP Dovegate with a view to a transfer of the claimant to HMP Dovegate. HMP Dovegate took the view that the claimant would not be accepted from the segregation unit and in addition he would likely not be suitable as with his diagnosis of Asperger’s, it might be difficult for him to cope in a controlled group environment (paragraph 15 of Ms McDonnell’s witness statement).

[57]On 16 November 2017 the Governor of HMP Manchester emailed Dr Xavier. The email read so far as material: Following our discussions prior to [the claimant] arriving at Manchester and the subsequent assurances regarding his onward move should he not engage with you whilst here, I am concerned we are now reliant on prison to prison transfer. You indicated his next move would be to an Asperger’s unit in the north-east which you would expedite, not to another prison unit where he has to agree to engage, when [the claimant’s] history does not suggest this will be the case. I agreed to take him on the basis he would be moved on through a clinical pathway and Manchester not being responsible for any further work or referrals. Given the anxieties around long-term segregation, it appears that Manchester will be left dealing with a difficult prisoner despite being willing to assist with consistency of delivery of [the claimant’s] clinical support programme/pathway. [Emphasis added]

[58]Dr Xavier responded by suggesting that the claimant would benefit from being in the personality disorder prison stream at HMP Garth (the Beacon Project). He noted that HMP Garth had stated previously that the claimant would be unlikely to fulfil the criteria given that he has a diagnosis of Asperger’s, however he stated that in his view “narcissistic and antisocial personality disorder issues drive his behaviours predominantly.” Dr Xavier stated that the claimant “would benefit from an assessment from the team in Garth” and that he had spoken to the lead psychologist who had agreed to review his notes and form a view as to whether or not he would be suitable.

[59]Dr Xavier also told the governor of HMP Manchester that the claimant did not meet the criteria for detention under the Mental Health Act so could not be referred to a specialist NHS unit.

[60]However, in December 2017, the Beacon Project rejected the claimant on the basis of his diagnosis of Asperger’s. [D593] The Beacon Project do accept men with comorbid needs but not if Asperger’s is the primary diagnosis (paragraph 17-18 of Ms McDonnell’s witness statement).

[61]The claimant sought a transfer to HMP Norwich and the defendant made contact with HMP Norwich in March 2018. HMP Norwich has no special facilities for those with Asperger’s although Dr Staufenberg, an Asperger’s specialist, holds clinics at the prison (paragraph 21 of Ms McDonnell’s witness statement). However, HMP Norwich declined to accept the claimant on the basis that Dr Staufenberg would not be able to visit regularly enough to provide effective support to the claimant.

[62]In her witness statement of 27 June 2018 Ms Vince proposed that the claimant would benefit from a transfer to HMP Wakefield which was approaching the end of a three-year cycle towards NAS accreditation. In the alternative she noted that the claimant had been screened into the Personality Disorder Pathway which would indicate that he was eligible for referral for assessment for the Personality Disorder Pathway. However, the claimant had refused to consent to a rereferral to the Beacon Unit or to the Westgate unit. Ms Vince accepted that the result of such an assessment may or may not confirm his suitability. However, she stated that these referrals required the claimant’s consent which was withheld (paragraph 20 of Ms McDonnell’s witness statement). In particular, the evidence was that the claimant was withholding consent for the specialist interventions unit at HMP Manchester to obtain and review his medical records from Ashworth Hospital (witness statement of Suzanne Wheeler dated 27 June 2018). Although Ms Vince noted that the Westgate unit does not offer autism specific interventions, the unit does work with men who have dual diagnoses of personality disorder and autism and the evidence of Ms Vince was that this unit “has worked successfully with a number of men with a dual diagnosis of autism and PD, particularly in more recent years as staff gain experience in this field” (paragraph 7 of her witness statement).

[63]The claimant’s view (as expressed at paragraph 47 of the witness statement of Mr Sperling) is that the claimant does not meet the criteria for referral to HMP Frankland. In particular that prison is aimed at prisoners who require conditions of high security whereas Mr Hall is a category B prisoner. Further Mr Sperling takes the view that a move to high security would be highly regressive and referring to the evidence of Dr Pearce that the claimant models his behaviour on those around him, expresses concern about the claimant going to a unit to mix with high risk offenders with severe personality disorders. Further Mr Sperling noted that the Westgate unit does not have any specialist interventions or services for those with Asperger’s or autism and there is no evidence that it is seeking autism accreditation.

The new specialist unit at Wakefield

[64]The most recent witness statement of Ms Vince sets out the current position in relation to Mr Hall and in particular gives further details of the new unit under development at HMP Wakefield. Ms Vince states (paragraph 6 of her second witness statement) that she is “confident” that the Wakefield unit will be operational by the end of 2018.

[65]Ms Vince’s evidence is that the unit at HMP Wakefield will have capacity for 14 men referred from the Long Term and High Security Estate. Those eligible “will have been diagnosed as, or suspected of being, on the autistic spectrum and struggle for a variety of reasons to cope on normal location and progress through their prison sentence…Men will not be required to associate with other prisoners who are deemed to pose a risk to them… All men on the unit will present with complex needs which will be supported to ensure each and every person’s quality of life, treatment and progression prospects are maximised.” [Emphasis added] The provision will include a sensory room and quiet room.

[66]The evidence of Ms Vince is that Mr Hall will be considered for the unit once the defendant starts to consider referrals and he will be offered a place in the first cohort if he meets the criteria (paragraph 5 of the witness statement). Ms Vince states that the claimant meets the draft criteria, whilst noting that the clinical specification for the unit has not yet been written.

[67]In her further witness statement Ms Vince states that plans are in place to transfer Mr Hall to the segregation unit at HMP Wakefield which has agreed to take him.

[68]According to the evidence of Ms Vince, HMP Wakefield is approaching the end of a three-year cycle towards NAS accreditation and were part of the original MOJ/NAS accreditation pilot. The formal accreditation assessment is scheduled for July 2018 (paragraph 3 of her first witness statement). Ms Vince also states that the prison has introduced an initiative which she refers to as “This Is Me” and which she describes as “a locally developed process that ensures the sharing of information between staff and prisoners to enhance responsivity”. Ms Vince also refers to HMP Wakefield having made adjustments for those prisoners with autism including allocating headphones and making minor changes to the regime/movement to accommodate those who have difficulty with significant levels of social interaction/environmental noise.

[69]Ms Vince states that there is a programme of autism awareness training in place in HMP Wakefield and she estimates that 60% of the staff have undergone local autism awareness training and “a small cohort” will have completed the level II certificate in understanding autism. Ms Vince states that she has “requested” that upon a transfer to HMP Wakefield, Mr Hall will be allocated an offender supervisor and key worker who is “autism informed and understand complex needs presentation”. However, she states that:

“if this is not possible given the existing caseloads for these specialist staff, we will identify and train additional staff in autism awareness at the earliest opportunity to take on this role.”

Claimant’s submissions

[70]For the claimant it was submitted that HMP Wakefield does not discharge the duty to make reasonable adjustments. In particular, accreditation has yet to be achieved and the claimant has yet to be offered a place. It was also submitted that HMP Wakefield posed an increased risk to the claimant through association with higher category prisoners and that a move to a higher category prison would be likely to lead to a delay in the claimant’s release.

Defendant’s submissions

[71]Counsel for the defendant appeared to concede that the court might question why there is currently no specialist autistic unit for prisoners but submitted that the question for this court is whether or not the defendant had taken reasonable steps to deal with the position for complex individuals such as the claimant. He submitted that the defendant had been moving towards autism accreditation and he noted that previously a specialist unit had existed in the form of the unit at HMP Dovegate.

[72]The defendant points to the medical evidence which states that the claimant has both Asperger’s syndrome but also a personality disorder. Whilst the defendant accepts that it is not necessary to decide which of the conditions has primacy, it is submitted for the defendant that the defendant has received medical advice which has changed over time and this court cannot and should not seek to resolve any conflict in the evidence as to which medical evidence is to be preferred. It was submitted that the defendant had taken steps to try and remove the disadvantage on the basis of the differing medical advice which it received and the court cannot measure the steps by reference only to the report of Dr Pearce.

[73]The defendant therefore relies on the complexity of the diagnosis as part of the relevant circumstances. The defendant refers to the report of Dr Edwards in 2010 which noted that the claimant had been assessed as having a personality disorder with antisocial/dissocial, narcissistic traits and obsessional traits although she also considered that his history and presentation were “strongly suggestive” of high functioning autism/Asperger’s syndrome. By contrast Dr McGowan in 2010 was of the opinion that Mr Hall’s presentation was not consistent with someone with Asperger’s syndrome but more consistent with an obsessive compulsive disorder.

[74]For the defendant it was submitted that the relevant circumstances include in this case the fact that the claimant is “abnormally aggressive” and presents both with a particular form of autism namely Asperger’s syndrome combined with other factors which should be taken into account in assessing whether reasonable steps have been taken.

[75]For the claimant it was submitted that the defendant had received different advice as to the “primacy” of the autism but the factors identified by Dr Pearce had not changed and these were the key elements.

The nature of the claimant’s disability

[76]Counsel for the claimant submitted that in this case, it was not necessary for the court to resolve the disputed issue of fact concerning the “primary diagnosis” of the claimant in that even if the claimant has a personality disorder as well as autism, counsel submitted that the claimant still required adjustments to be made.

[77]The defendant referred the court to the authority of R (on the application of MDA) v Secretary of State for the Home Department

[2017] EWHC 2132 (Admin)

. In that case there was a dispute as to the nature of the claimant’s condition and conflicting medical evidence. It was submitted for the defendant in that case, that although the court was not prohibited from hearing the case on reasonable adjustments, the County Court was the more appropriate forum as the issues turned on disputed expert evidence as to the claimant’s impairment and there had been no disclosure. The judge stated that in order to resolve the issue of whether or not reasonable adjustments had been made, the court would have to consider the evidence and that evidence had not been disclosed. He therefore held at [251] that, given the substantive dispute as to the nature of the claimant’s condition and that the evidence required to resolve that dispute was not before the court, that particular ground of claim should not be considered.

[78]In this case, there is evidence before the court from a number of doctors/psychiatrists which was prepared at various times during the claimant’s sentence. The court cannot resolve the differences in those reports but proceeds on the basis that the evidence presented to the defendant in the various reports suggested (albeit that the evidence was not always consistent and with varying emphasis) that the claimant suffers from both autism/Asperger’s syndrome and a personality disorder.

[79]Dr Pearce in her report in September 2014 was of the view that the claimant’s presentation was “strongly suggestive of high functioning autism/Asperger Syndrome”. In the St Andrews report in June 2015 the view was expressed that there was sufficient evidence to support the diagnosis of a paranoid personality disorder in addition, whilst noting that there may be an overlap of symptoms between the Autism and Personality Disorders in the claimant. Dr Xavier in his report of November 2016 described the claimant as having a diagnosis of autism spectrum disorder but being currently placed within Ashworth Hospital “to manage abnormally aggressive behaviour” although I note that in his 2017 report Dr Xavier stated that the claimant’s diagnosis did not warrant detention in hospital.

[80]Ms Vince in her witness statement relies on advice from a colleague, Dr Al-Attar who she describes as “an experienced HMPPS forensic psychologist with expertise in the assessment and management of offenders on the autistic spectrum”. Dr Al Attar was asked to give her thoughts based on the claimant’s file. It is to be noted that her review appears somewhat cursory: she refers to having “quickly skim read” the dossier. However, she does state that there is sufficient evidence for what amounts to a personality disorder, and she states that:

“It seems both ASD and PD are intertwined and interact in his offence pathway and are both functionally linked to his risk/offending. Clinically they are both important in his formulation and rehabilitation planning.”

[81]This conclusion appears to be challenged by the most recent report obtained for the claimant from Dr Staufenberg dated 18 June 2018. However, the position of the claimant, as stated in oral submissions, was that the claimant did not seek to put “much weight” on this report in the context of the issues in this case, (rightly, in my view) acknowledging that this report was not before the defendant.

[82]In my view it is not necessary for this court to determine which diagnosis has primacy, however the differing medical reports are relevant in determining whether or not the defendant is in breach of duty. This is a claim for judicial review and is not a claim in the County Court (which would have been open to the claimant and if necessary, would have provided an opportunity for the medical evidence to be explored).The medical reports and the diagnosis form part of the background circumstances during the years leading up to the claimant’s transfer to HMP Manchester and provide the context to the steps which were taken by the defendant whilst the claimant was at HMP Manchester. Further the nature of the diagnosis is in my view relevant in order to determine the nature of the “suitable establishment” which the claimant asserts the defendant has failed to provide and whether or not the defendant has breached its duty by failing to take such steps as are reasonable in all the circumstances of the case.

[83]The claimant in his second witness statement (at paragraph 10) states that he does not pose a risk of harm to anyone. In my view the court does not have to assess the current risk which the claimant may pose to others in order for the court to resolve the question of whether the defendant is in breach of its duty to take such steps as it is reasonable in all the circumstances to have to take in order to make adjustments. In my view what is relevant is the evidence which shows a history of violence even within the setting of specialist units such as St Andrews, a hospital specialised for the management of autism and the Northdale centre, an autism specific service, and as noted above the description of Dr Xavier in his report of November 2016, of the claimant’s “abnormally aggressive behaviour”.

[84]Accordingly, I find on the evidence that the issue of whether the defendant took such steps as it was reasonable to take to avoid the disadvantage must be viewed in the context that the professional medical advice received by the defendant was that the claimant had both autism and additional needs, manifesting themselves in particular by aggressive behaviour, and which may arise from a personality disorder.

Has the defendant taken such steps as are reasonable to take to avoid the disadvantage?

[85]The claimant bases its case for reasonable adjustments on the adjustments identified in the report of Dr Pearce in 2015. However as noted above, Dr Pearce in her 2015 report was of the view that the claimant required treatment in hospital rather than prison and in February 2015 the claimant had been admitted to hospital under the Mental Health Act. In my view the remarks of Dr Pearce concerning prison and the need for a “specialist autism specific service” in paragraph 15.67 of her report referred to above, have to be read in the light of the remarks referred to above recommending ongoing treatment in a hospital within an autism specific service (paragraph 15.38). Dr Pearce stated that the claimant’s autism was:

“of a nature and degree that warrants detention in hospital for assessment and treatment. The impact of the autism is such that he has presented with behaviours of risk directed towards others” (paragraph 15.48). “This requires specific assessment and treatment to reduce that risk for the future.” (paragraph 15.49) “if his mental disorder had been further recognised as autism, it would have been appropriate to consider Mr Hall receiving a hospital order under section 37 MHA for treatment in hospital, with the addition of a section 41 restriction order for protection of the public. (Paragraph 15.55)”

[86]Counsel for the claimant submitted that Dr Pearce concluded in her report that the claimant should be in hospital because autism specific services were not available in prison. In my view this is not a fair description of Dr Pearce’s conclusion. Whilst Dr Pearce does not support a return to prison, Dr Pearce concluded that:

“in my opinion section 41 restriction order would therefore be required for the protection of the public from serious harm given the nature of the risk behaviours. (Paragraph 15.57).”

[87]Further whilst the claimant submitted that the court was not being asked to resolve why the claimant was not being treated in hospital, it is in my view relevant in order to determine whether the defendant took reasonable steps to take into account the steps taken before transferring the claimant to HMP Manchester.

[88]As to the submissions based on the general anticipatory duty to make provision for prisoners with autism, on the one hand the claimant criticises a general failure to make adjustments for autistic prisoners and on the other hand appears to acknowledge that the defendant has made some adjustments for autistic prisoners by its provision at Feltham YOI in 2012 and in HMP Dovegate in 2014. It is difficult to see how these two submissions can be reconciled. Further the evidence of Ms Vince is that:

“Generally the position is that HMPPS have become increasingly aware of the need for provision for autistic prisoners within the prison population since 2015 and working in close partnership with the National Autistic Society has helped HMPSS address the reasonable adjustments locally to meet the needs of these men. This work has progressed at pace in some individual sites-HMP Wakefield being one such site, chosen as a pilot site for the MOJ & NAS accreditation standards. Work is ongoing in joint partnership with Healthcare colleagues in High Secure Hospitals to provide more continuity of specialist care where needed…”

[89]Counsel for the claimant relied on a statement of the Prisons Minister in March 2015 which he submitted (in his Second Additional Note) stated that all prisons should obtain autism accreditation. In fact (as correctly reflected in the claimant’s original submissions) the statement reads in material part:

“I am keen to further promote the use of the NAS accreditation across the prison estate.”

The press release noted that Feltham was working towards achieving National Autistic Society accreditation later that year “and will be followed by Parc and Wakefield prisons.”

[90]This statement therefore is consistent with the evidence of Ms Vince quoted above and in particular as to what is now happening with HMP Wakefield, which according to her evidence “are approaching the end of a three-year cycle” towards NAS accreditation.

[91]In my view, rather than demonstrating that the defendant is unaware of the need to make adjustments for autistic prisoners or a failure to take any action, the evidence shows that the defendant has taken steps to make adjustments for prisoners with autism and this process is ongoing.

[92]It was further submitted for the claimant that the fact of the provision at Feltham YOI and HMP Dovegate means that the defendant was aware of the “need” to make adjustments for autistic prisoners. However, the defendant does not assert that autistic prisoners are not placed at a substantial disadvantage within the meaning of the Act or that it does not need to take steps to make reasonable adjustments. Counsel for the claimant appeared to wish to create a subcategory of autistic prisoners, namely those in category B training prisons. However, as discussed above, the issue is whether the steps taken in relation to this particular claimant discharged the defendant’s duty.

[93]Counsel for the claimant submitted that Dr Pearce identified the needs of the claimant and this should have been an “additional impetus” for the defendant to make adjustments. It was submitted for the claimant that it was “likely” that the claimant would go back to prison at some stage and therefore adjustments should have been taken in anticipation. As noted above, Dr Pearce’s recommendation was for the claimant to be treated in hospital and not in prison. I do not accept the claimant’s submission that it was “likely” in 2015 that the claimant would go back to prison at some stage thereby triggering a requirement for the defendant to take steps in anticipation of such a move. As set out above the evidence is that it was only at the point when the claimant was unwilling to engage in any therapeutic activities at Ashworth Hospital, that the claimant was transferred to prison.

[94]Even accepting the proposition that Dr Pearce’s recommendations as to the needs of the claimant are not limited to a hospital setting, the report does not in my view support the claimant’s argument that the defendant failed to take action in relation to the claimant at the time of the report in 2015 given its conclusion. As to the needs of the claimant, the defendant has been given a number of differing medical reports throughout the claimant’s sentence and the defendant’s actions cannot be assessed with regard to the circumstances of this claimant solely in the light of the recommendations of Dr Pearce.

[95]It is submitted for the claimant that if the claimant had been in a specialist unit, there was a real prospect it would have benefited the claimant but the evidence of his behaviour in the specialist units at St Andrews and Northdale do not support such a submission. I note that, at the time of Dr Pearce’s report in 2015 the claimant was at the Northdale centre in Roseberry Park Hospital where he was an inpatient with the autism service. However, a number of incidents of verbal and physical aggression to staff and patients at the Northdale centre led to his admission to conditions of high secure services at HMP Holme House at the end of November 2015. In March 2016 he was admitted to Ashworth Hospital from Holme House under section 47/49 of the Mental Health Act.

[96]The claimant focuses on the claimant’s detention at HMP Manchester. Counsel for the claimant submitted orally that if the claimant had been referred to Dovegate that would have discharged the defendant’s duty but by being kept in Manchester rather than being referred to a specialist autism unit the defendant had failed to discharge its duty. (I note that in written submissions following the hearing which were invited by the court to deal with the position in relation to HMP Wakefield, counsel sought to refine this submission and took the view that a transfer to HMP Dovegate would reduce but not eliminate the disadvantage.)

[97]In assessing the steps which have been taken whilst the claimant has been at HMP Manchester, it is relevant to have regard to the background which led to his transfer to HMP Manchester and the evidence that Dr Xavier was of the view that the claimant could be managed within the prison environment and could make progress. Further the claimant was being held at HMP Manchester on the basis as noted by the Governor, that the treating clinician would “expedite” his transfer to a suitable unit.

[98]Counsel for the claimant submitted that the provision of “some advice” by Dr Xavier amounted to a “lesser step” (paragraph 7.35 of the Code of Practice) and that Dr Xavier in fact only saw the claimant on four occasions.

[99]However, it would appear from the notes of Ms McDonnell that (notwithstanding a sentence planning meeting on 13 December 2017 at which the objectives agreed included to engage with Dr Xavier) at a meeting on 14 December 2017 the claimant was asked if he wanted to continue to see Dr Xavier and the claimant declined to do so. Further on the evidence HMP Manchester and the support of Dr Xavier was intended to be an interim measure and a measure with which the claimant (at least from December 2017) refused to engage. Further I note the proposal by the claimant of a transfer to Norwich was on the basis of external advice being provided (in that case through the support of Dr Staufenberg) so the mere fact that the responsible clinician was not within the prison cannot on the claimant’s case it seems to me, amount to a breach of duty.

[100]The defendant took steps to effect a transfer to a suitable establishment. Having been refused by Dovegate, on the advice of Dr Xavier, the defendant referred the claimant to the Beacon Project and this having been refused, notwithstanding the specific involvement and intervention of Dr Xavier, the defendant investigated the claimant’s wish to be transferred to HMP Norwich but this too proved unsuitable.

[101]The specialist wing at HMP Dovegate which had previously existed is no longer available. (Paragraph 19 of Ms McDonnell’s witness statement). Counsel for the claimant appeared to take the view in oral submissions that if the claimant is no longer entitled to go there, it cannot amount to a reasonable adjustment although in written submissions following the hearing, counsel also submitted that HMP Dovegate did not discharge the duty on the defendant because the claimant was not transferred there. Counsel submitted that a future transfer to HMP Dovegate would reduce (but not eliminate) the disadvantage that the claimant suffers on the basis that the evidence suggests that there was a consultancy service and additional staff training with regards to working with prisoners with autistic spectrum disorder. However, counsel equally appeared to accept in his further submissions that prisoners with Asperger’s are now unlikely to be accepted at HMP Dovegate.

[102]In my view there are two aspects to HMP Dovegate: firstly, the steps which the defendant took to transfer the claimant in September 2017 and then again in January 2018; and secondly the position as it now stands. Ms McDonnell approached HMP Dovegate in September 2017. This was an establishment to which according to her notes (2 November 2017), the claimant was “keen to transfer”. The further approach in January 2018 was following a specific request by the claimant’s representative (witness statement of Mr Sperling at paragraph 51). In my view these amounted to part of the steps taken by the defendant to investigate a suitable location for the claimant and given that they were taken with the agreement and, in part at the request of the claimant, they form part of the steps which the defendant took to avoid the disadvantage.

[103]As to the position going forward, although in his most recent submissions, counsel for the claimant sought to maintain the possibility of a future transfer to HMP Dovegate, it seems on the evidence that the claimant is unlikely to be accepted.

[104]Counsel for the claimant appeared to accept in oral submissions that a transfer to HMP Norwich was no longer realistic. Again however, it is relevant for this court to take into account in considering the steps which were taken by the defendant overall in the period whilst the claimant has been at HMP Manchester.

[105]There is a dispute as to whether or not Westgate/HMP Frankland is suitable. However, the evidence of the defendant is that this unit works with people with a dual diagnosis. Whilst it is clear that the issue of prisoners with autism has been an issue known to the defendant for a number of years, the evidence is that this particular claimant requires treatment in a unit which can manage both his autism and his aggressive behaviour (whether or not it is classed as a personality disorder). The evidence does not support the claimant’s submission that the claimant’s needs are “typical” of prisoners with autism but rather that his combination of symptoms means that he needs to be placed in a unit which can address his particular needs. Counsel for the claimant appeared to accept the claimant’s “violent behaviour and risk” which in his oral reply he described as “central to the claimant’s case”.

[106]The defendant has now proposed to transfer the claimant to the segregation unit at HMP Wakefield and in the most recent witness statement of Ms Vince her evidence is (paragraph 4) that plans are already in place to transfer the claimant to Wakefield segregation unit which she states has formally agreed to take him.

[107]In his most recent witness statement, Mr Sperling seeks in effect to criticise the provision in the segregation unit at HMP Wakefield by reference to a report by HM Chief Inspector of prisons following an inspection in June/July 2014. I note that this report is now four years old and refers to plans to refurbish the unit in September 2014. However, in the light of the more recent evidence of the steps that have been taken at HMP Wakefield since 2015 to obtain accreditation and the proposals concerning staff who will be identified to support the claimant in the segregation unit, I attach little weight to this report. I also have regard to the witness statement of the claimant’s mother who expresses “serious concerns” about the way in which the claimant has been “shunted from one prison to another” and her concerns about a transfer to a high security prison. It is not clear from this statement whether the claimant’s mother is aware of the steps that HMP Wakefield have taken towards accreditation and the particular proposal that the claimant should be in the segregation unit with the support outlined in the witness statement of Ms Vince.

[108]I note the additional objections raised by the claimant’s mother in her statement to the location of HMP Wakefield concerning visits. However, given the particular difficulties of this claimant and the particular advantages of HMP Wakefield as a site which is on the verge of accreditation and with the expected provision shortly of the specialist unit, the location of HMP Wakefield cannot have significant weight in the circumstances of this case.

[109]In my view the claimant cannot sustain its objection that a transfer to the segregation unit at HMP Wakefield is unsuitable because it is a high security prison in the light of the evidence of Ms Vince that, although HMP Wakefield is a category A prison, it also accommodates a significant number of category B prisoners and in the specialist unit the claimant should not be associating with other prisoners who might pose a risk.

[110]The claimant asserted that the failure on the part of the defendant to make available a place at a suitable establishment with specialist services for autism and Asperger’s syndrome, consisted of a failure “for example, to ensure there is an establishment which has autism accreditation.” (Paragraph 77 of the witness statement of Mr Sperling) Counsel for the claimant appeared to accept in oral submissions that if a prison was accredited (as for example, is the case for Feltham YOI), that would amount to the provision of autism specific services.

[111]Whilst accreditation has not yet been achieved by HMP Wakefield, the evidence is that this will be achieved in the next few months and Ms Vince estimates that 60% of the staff have already undergone autism awareness training. Whilst the defendant does not give an assurance that the claimant’s offender supervisor and key worker will be “autism informed”, the defendant relies on the practical difficulty of existing caseloads and does give an assurance that additional staff will be identified and trained.

[112]It was submitted for the claimant that the transfers proposed by the defendant, including the transfer to the specialist unit at HMP Wakefield, were “lesser steps”. In relation to proposed transfers to HMP Dovegate, Westgate unit and the Beacon Project they were alternatives which were considered and investigated following medical advice. At the time therefore that they were being considered, they were not in my view “lesser steps” but were considered to be potentially suitable provision on the basis of the guidance received from the clinicians.

[113]As to HMP Wakefield, the claimant’s subsequent written submissions appear to be at odds with his earlier submissions concerning the acceptability of an accredited establishment. The claimant submits that there is no evidence that the specific interventions required will be provided or that the unit will involve a high degree of structure routine and predictability. However, in my view, it is a reasonable inference from the evidence of Ms Vince that the unit which is specifically designed for prisoners with a combination of autism and other needs will meet the needs of the claimant in these particular regards. I note the small size of the unit and the reference to a sensory room and quiet room, both matters previously raised by the claimant as aspects of the suitable environment required by the claimant.

[114]I am not persuaded by the claimant’s argument that as an IPP prisoner the need to make adjustments for the claimant is any stronger. The test is still whether the defendant has shown that it has taken such steps as is reasonable to take to avoid the disadvantage. On the one hand the claimant seeks to rely on the lack of action by the prison service to make adjustments for autistic prisoners since 2010 and on the other hand to focus solely on a failure to make adjustments whilst the claimant was at HMP Manchester. As discussed above, in my view the steps which it was reasonable for the defendant to take whilst the claimant was at HMP Manchester have to be viewed against the background and context of this particular claimant, including the differing medical diagnosis, and the circumstances in which he was held at HMP Manchester, namely upon medical advice and where there is evidence that he refused to engage with the responsible clinician.

[115]As referred to above, HMP Wakefield was identified for accreditation in 2015 and is now approaching the end of that process. The specialist unit is designed not just for autistic prisoners but for those prisoners with complex needs. According to the evidence of Ms Vince, it is part of a new initiative introduced in January 2018 called “Pathways to progression” which aims to develop services for “[the] most complex men whose needs historically have been difficult to meet using mainstream services, and who struggle to cope in custody.”

[116]Since the unit has apparently been developed following the new initiative in January 2018 and (as referred to in paragraph 65 above) is not a unit which is designed solely for prisoners with autism, it is not realistic, in my view, to expect the specialist unit at HMP Wakefield to be available immediately butthere is no evidence to suggest that the evidence of Ms Vince that the unit will be operational by the end of 2018 should be doubted.

[117]In the interim it would appear that the claimant can be transferred to HMP Wakefield which is on the verge of accreditation and which will have appropriately trained staff. The evidence is that the claimant will be allocated an offender supervisor and key worker who is “autism informed”. Ms Vince acknowledges the possibility that such staff may not be available, in which case she states that additional staff will need to be trained. However, a significant proportion of staff which she estimates at 60%, have undergone “local autism awareness training” and what she describes as “a small cohort” will have completed the level 2 Certificate in Understanding Autism.

[118]In relation to the steps which the defendant has taken whilst the claimant has been at HMP Manchester, viewed as a whole and against the background as described above, it seems to me that the defendant took such steps as was reasonable to take to avoid the disadvantage.

[119]In relation to the position presently, it seems to me that the defendant has taken such steps as are reasonable by arranging the proposed transfer to the segregation unit at HMP Wakefield pending the opening of the specialist unit at HMP Wakefield and the likelihood of the claimant’s transfer to this unit once it becomes operational.

Training for staff

[120]The claimant submits that even if the court finds that a specialist unit was not appropriate,the claimant should still have had specialist intervention, and on this basis, there was a breach of the duty to make reasonable adjustments. I have already referred to the evidence that the claimant refused to engage with Dr Xavier, the responsible clinician. It is also necessary to consider in this regard the claimant’s arguments that training should have been provided to the staff team who supported the claimant to give them a good understanding of autism.

[121]It is submitted for the claimant that the instruction or training given to prison staff at HMP Manchester did not give the staff a good understanding of autism and how to manage an autistic prisoner. It was submitted that the response of the defendant to the frequent repetitive complaints of the claimant make plain that staff do not have a high level of awareness of their own communication staff and how this may impact upon the claimant. The prison registered the claimant as a serial complainant and limited the number of complaints he could make. It is submitted that this indicates that prison staff do not understand that a feature of autism includes obsessional or repetitive behaviour such as making complaints: as referred to in the report of Dr Xavier who under the section highlighting the characteristics of the disorder that warrant detention, refers to the claimant engaging in repetitive behaviour such as making complaints (page 5 of his report).

[122]Further by ordering him to move out segregation, counsel for the claimant submitted that this demonstrated a lack of training on the part of the prison staff.

[123]The defendant does not accept that it has failed to make reasonable adjustments in relation to training and instruction. The defendant relies on the evidence in the witness statements of Ms McDonnell, Brendan Burke and Suzanne Wheeler.

[124]According to the evidence of Ms McDonnell, Dr Xavier emphasised the importance of structure and routine to the claimant with regular meetings, follow-up memos and clear explanations given before implementing any changes to his regime (paragraph 11 of her witness statement). Ms McDonnell also noted that Diane Press, the Head of Healthcare indicated that much of this was familiar to her as she had prior experience of dealing with patients with Asperger’s.

[125]The evidence of Ms McDonnell was that the Head of Healthcare was a mental health nurse by training, and she or her staff make daily visits to segregation. Ms McDonnell stated that she and other non-custodial staff dealing with Mr Hall have taken particular care to ensure that “there is clarity of understanding with him about what is agreed and what is expected of him” (paragraph 22 of her witness statement).

[126]Ms McDonnell stated that the claimant presented as well settled in segregation which “provided him with the structure and routine so important to his equilibrium.” Her evidence was that she did “not recognise Mr Hall’s description of himself as “frantic” and “in despair” (paragraph 25 of her witness statement).

[127]The evidence of Suzanne Wheeler was that although there was no specific communication plan in place for the claimant, one of the psychologists had conducted one-to-one training with some members of segregation staff and Ms Wheeler intended to carry out further training. Her evidence was that she did not accept that staff dealing with him in segregation were unaware of the particular difficulties he presents and the implications of his autism in communication with him (paragraphs 2 and 3 of her witness statement dated 27 June 2018). This evidence was supported by the evidence of Brendan Burke who referred to “regular segregation reviews when the multidisciplinary team including the claimant’s offender manager, a representative of the mental health care outreach staff and one or two segregation staff reviewed his condition and circumstances. Mr Burke’s evidence was that:

“all present understood the problems of communicating with Mr Hall and the reasons for those difficulties” (paragraph 8 of his witness statement).”

[128]Further although Mr Burke accepted that no specific autism awareness training was given to staff, he said that (paragraph 3 of his witness statement):

“all officers are trained to recognise and respond appropriately to WCB, work challenging behaviour, and are specifically trained to recognise links between such behaviour and mental illness.”

[129]The claimant disputes the evidence of the defendant in this regard. For the claimant it is further submitted that the defendant’s evidence does not prove that all staff who support the claimant are trained to have a good understanding of autism and how it affects him. It was submitted for the claimant that at best the evidence shows that some of the staff who have contact with the claimant receive some instruction. In particular the “work challenging behaviour” training mentioned by Mr Burke does not amount to evidence that prison officers thereby have an understanding of autism and how it affects the claimant. The claimant submitted that the reasonable adjustment which it seeks is that all staff who support the claimant should have a good understanding of autism and how it affects him. At best therefore the defendant has taken some “lesser step”.

[130]Mr Sperling states in his witness statement that:

“[34] I have read the claimant’s prison medical records and I have seen no evidence to suggest that custodial staff understand the manifestations of Mr Hall’s autism or made adjustments as to how he is treated to account for his autism. There is no suggestion that the prison has made any adjustment, on the ground of his disability, to how the claimant is treated. [35] the “NOMIS transfer report” contains regular notes by prison staff. There is no suggestion in the notes that any specific support has been provided, or any specific adjustments made, the claimants autism. There is no suggestion that the measures recommended by Dr Pearce have been provided. [36] there is no suggestion that custodial staff understand that the claimant’s behaviour may result from his autism.… There is no entry indicating custodial staff recognise that his behaviour and presentation may be linked to his autism. [37] the medical notes also do not indicate that any of the adjustments recommended by Dr Pearce have been provided to the claimant…”

[131]In my view it is not appropriate for this court on an application for judicial review to try and resolve these disputes of fact. The defendant accepts that the training given to all staff in HMP Manchester is not autism specific. Nevertheless, the defendant submits that reasonable steps have been taken with regard to the claimant given that specific instruction has been provided to staff with whom the claimant comes into contact, particularly in the context that the claimant’s position at HMP Manchester was intended to be temporary.

[132]Counsel for the claimant conceded in oral submissions that it was not the claimant’s case that all staff in prison should be trained to deal with autistic prisoners but submitted that staff who support autistic prisoners should be trained.

[133]In my view the evidence was that some but not all the staff in the segregation unit dealing with the claimant had received training and they were advised by Dr Xavier and led and supervised by staff with appropriate expertise namely Ms Press and Ms Wheeler.

[134]Accordingly, in relation to the submission that training should have been provided to the staff team who supported the claimant at HMP Manchester to give them a good understanding of autism, I find that there was no failure to take such steps as was reasonable to take to avoid the disadvantage.

[135]Insofar as the transfer to HMP Wakefield is concerned, although not all staff will be trained on the evidence a significant proportion will have received training.

Move out of the Segregation Unit

[136]Mr Burke’s evidence was that it has now been agreed that Mr Hall may remain in segregation whilst the issue of his transfer is live.

[137]Mr Burke disputes the assertion of the claimant that main wings at HMP Manchester are “noisy and crowded”. He also states that there is no intelligence to back the claimant’s claim to persecution by other inmates; he says that most of the material about suggestions that other prisoners believe the claimant to be Venables is self-reported by Mr Hall and he states that the absence of any intelligence leads him to conclude there is no current threat.

[138]There is a dispute of fact as to whether or not the main wings in Manchester are noisy as asserted by the claimant. This is denied by Brendan Burke, in his witness statement. It was also asserted for the claimant that HMP Manchester was overcrowded and this was also denied by Mr Burke. However, it is not necessary for me to resolve these conflicts in the evidence as it was conceded in oral submissions by counsel for the defendant that if the claimant had in fact gone to the main wing rather than remaining in the segregation unit he would have suffered a disadvantage. However, it was submitted for the defendant that instructing the claimant to leave segregation has not put him at a disadvantage as he did not in fact leave the segregation unit.

[139]For the claimant it was submitted that the claimant was ordered to move on 30 separate occasions and the disadvantage was that the claimant was subject to penalties as a result of failing to move out of the segregation unit.

[140]However, the defendant submitted that this did not amount to a failure to make reasonable adjustments. The claimant asserted that he wished to remain in segregation due to the risk posed to him by prisoners on the normal wings (by reason of the claimant’s concern for his safety). The defendant did not accept that such a risk justified remaining in segregation and it was for that reason that the claimant was required to move to a normal location.

[141]The evidence of Ms McDonnell is that the claimant originally was located in the segregation unit due to his behaviour towards staff and other inmates. “Thereafter he remained in the segregation unit due to his refusal to locate elsewhere in the prison on the basis of his fears for his safety on the wing.”

[142]This is borne out by the evidence of Mr Sperling that the claimant had “self isolated” because he perceived he was under threat because prisoners thought he was John Venables.

[143]Although Mr Sperling seeks to link his refusal to return to normal wings as a manifestation of the claimant’s Asperger’s syndrome, it is unclear on the evidence that there was evidence before the defendant linking the perceived threats to his disability. The defendant investigated the intelligence on any threats and took the view that there were no such reports from January 2018 onwards. When the matter was raised in a pre-action letter sent on behalf of the claimant on 2 May 2018, I note that the response of the defendant on 11 May 2018 was that the claimant would remain in segregation and would not be moved pending the outcome of the litigation. Outstanding charges were adjourned and a recent adjudication quashed.

[144]I also note that whilst submitting that requiring the claimant to return to a normal wing was a breach of duty, the claimant also submits that being segregated is a “potentially serious detriment” and I note the evidence of Mr Burke that earlier requests to Mr Hall to locate to the wing were taken “in the sincere belief by segregation officers that such a move might benefit him and allow him to interact with the general population” (paragraph 4 of his witness statement).

[145]Accordingly, in my view, the requirement that the claimant should move back to a normal location given that there was “no identifiable risks or intelligence” and in the absence of any demonstrable link to his disability, did not amount to a failure by the defendant to take such steps as it is reasonable in all the circumstances of the case to have to take in order to make adjustments.

Conclusion

[146]For all these reasons I find on the evidence that the defendant has discharged the burden on it, to show that the defendant took such steps as it is reasonable in all the circumstances of the case to have to take in order to make adjustments and/or avoid the disadvantage and/or provide an auxiliary aid.

[147]Accordingly, I find that in this case, there has been no failure by the defendant to comply with the duty to make reasonable adjustments under the Equality Act.