disability discrimination

Disability discrimination is a small but increasing part of the practice of prison law, particularly following December 2006 when new public authority duties came into force.  We have just settled a case which we suspect is representative of a much wider problem within the prison estate.  It raises issues relevant to the new duties and the old.

Our client was a lifer who suffers from an illness that means he is deemed disabled within the meaning of the Disability Discrimination Act 1995 (DDA).  He had progressed well, and ultimately the Parole Board recommended and the Secretary of State accepted that he should be transferred to open conditions to complete coursework and to be tested in the usual way.

On allocation, however, the only open prison that offered his course refused him.  It did so on the basis that it could not accept his particular drugs regimen.  Its healthcare centre was not open seven days a week and when it was closed the only options would be self-medication, or for officers to dispense the drugs.  Both were said to raise security issues.

Our principal challenge was that the DDA imposes a reasonable adjustments duty and requiring officers to dispense drugs (or, more accurately, to supervise self-dispensation) is a fairly de minimis adjustment.  We also, however, put a general assessment point:  the DDA duties are positive, and anticipatory.  Our client’s problems are not uncommon.  It really did seem that the Secretary of State had not thought about any of this in advance.  This put him in breach of his general duty.

This argument gained substantial support from the intervention of the Disability Rights Commission (DRC).  The DRC produced correspondence which showed that in March 2007 they had put the (then) Home Office on notice that they considered the Home Office Disability Equality Scheme was inadequate.  The scheme was said not to focus on the needs of prisoners, but rather only on staff.  Most interestingly, the problem of access to medication for prisoners in open conditions had been cited as a particular issue. 

Disability Equality Schemes are required of certain public authorities, including government departments, by way of the Disability Equality Duty (DED).  Like the public authority functions duties, the DED also came into force in December 2006.  Compliance with the DED is policed by the DRC:  see sections 49A to 49F of the DDA.  In further correspondence, it became clear that the responsible minister at the Home Office had accepted that the existing schemes were inadequate.  New ones are promised by the end of 2007.

In the light of this material, we refocused our case to argue (1) that the Secretary of State accepted that the response to these problems had been inadequate; (2) this left individual prison governors on the back foot with insufficient resources dealing with these problems largely alone; and (3) this in turn had produced the poor quality decision making in individual cases which we had already highlighted.  Most obviously this was characterised by a dogged determination to maintain the status quo; precisely the kind of approach which the DDA is designed to change.

Shortly before trial the Secretary of State and the prison came up with a compromise solution that allows our client to progress.  They also agreed a declaration of past breach of their DDA duties.  This reflects the fact that it took them more than a year to come up with a sensible solution.

That was sufficient to bring our litigation to an end.  We cannot help but think, however, that there must be a very large number of other prisoners out there with precisely the same type of problem.  Informally we know that there are.  Access to medication and related facilities in open conditions is a particular problem.  In dealing with it those prisoners, together with their representatives, should bear in mind the following:

• The public authority functions duties are imposed by sections 21B to 21E of the DDA and have been in force since 4 December 2006. 

• The functions duties largely, but not entirely, obviate the need to bring the discriminatory treatment within the services duties imposed by sections 19 to 21.  They do not entirely obviate this need because the functions duties are residual (they only arise if other duties do not).  More significantly, there are differences in the way discriminatory treatment may be justified in the services and functions contexts.  Put simply, it is harder to justify discriminatory treatment in the services context.

• The DED is clearly of enormous relevance at the moment because the minister accepts that his department’s response to disability in prisons has at least in part been inadequate.

• Important forum issues arise.  We pursued this claim by way of judicial review because we had pleaded public law claims as well and, at the outset, the points of law were critical.  As matters developed, however, when we wanted to deal with the increasing list of reasons offered by the prison for saying “no” to our reasonable adjustments suggestions, oral evidence might have been helpful.  This is not an easy matter to judge.

Jules Purdon is a solicitor at Michael Purdon, Ward Buildings, 31-39 High Bridge, Newcastle on Tyne, NE1 1EW. Nick Armstrong is a barrister at Matrix Chambers in London.