Gill, R (on the application of) v Secretary of State = for Justice [2010] EWHC 364 (Admin) (26 February 2010)

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Cite=20 as: [2010] EWHC 364 (Admin)

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		Neutral Citation Number: [2010] EWHC = 364=20 (Admin)
		Case No:=20 CO/10088/2009

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH=20 DIVISION
ADMINISTRATIVE COURT

Royal Courts of = Justice
Strand,=20 London, WC2A 2LL

26/02/2010

B e f o r e :

MR JUSTICE=20 CRANSTON
____________________

Between:

	The Queen (on the application = of Dennis Gill = )	Claimant
	- and -
	Secretary of State for=20 Justice	Defendant

____________________

(Transcript of the Handed Down Judgment = of
WordWave=20 International Limited
A Merrill Communications Company
165 Fleet = Street,=20 London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 = 1424
Official=20 Shorthand Writers to the Court) =

____________________

Adam Straw (instructed by Bindmans) for the = Claimant
Steven=20 Kovats (instructed by The Treasury Solicitors) for the = Defendant
Hearing=20 dates: 11 February 2010
____________________

HTML VERSION OF JUDGMENT =
____________________

Crown Copyright =A9

Mr Justice Cranston:

INTRODUCTION

The claimant is a life sentence prisoner = who suffers=20 from a learning disability. He has served well over twice his tariff. = By=20 reason of his intellectual disability he has not been able to = undertake=20 offending behaviour programmes. In essence his case is that this has = greatly=20 impeded his ability to reduce his risk and progress towards release, = and that=20 this constitutes not only a breach of the Disability Discrimination = Act 1995=20 ("the 1995 Act") but also a breach by the Secretary of State for = Justice ("the=20 Secretary of State") of the public law duties imposed on him.

BACKGROUND

The claimant's imprisonment
The claimant's offending began in 1988. = Violent=20 behaviour soon emerged as a feature of that. There was an assault = occasioning=20 actual bodily harm in 1990. In 1995 he was imprisoned for three years = for=20 wounding with intent following his stabbing a person in the abdomen = with a=20 kitchen knife. In 1997 he committed the offence of grievous bodily = harm.=20 During an argument he struck his father with a three foot length of = wood,=20 causing a broken left arm. The following year the claimant was = convicted for=20 assault occasioning actual bodily harm. That occurred while he was in = prison.=20 Apparently he had been informed by staff that he was moving to a = different=20 part of the prison and as a result became violent, smashed furniture = in his=20 cell, and then used a table leg to assault prison staff and smash = windows. The=20 index offence, wounding with intent to do grievous bodily harm, = occurred in=20 2001. The claimant assaulted a prison officer by throwing boiling = water into=20 his face. He was given an automatic life sentence for section 18 = wounding and=20 the tariff was set at four years. That tariff period expired in May = 2005. In=20 2002 he was given concurrent twelve month sentences for actual bodily = harm and=20 affray.
Following his sentencing for the index = offence, the=20 claimant was transferred, in September 2001, to high security = conditions at=20 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=20 remained there for the following six years. He was subject to some = sixteen=20 adjudications in the initial phase of his imprisonment but the last of = his=20 adjudications was in December of 2004. In October 2009 the claimant = was=20 transferred to HMP Lindholme, a category C prison.
The claimant's first Parole Board review = was at HMP=20 Whitemoor in May 2003. The reports prepared for that noted that the = claimant=20 had participated in little offence related work since his arrival at = the=20 prison and had completed no accredited programmes. His main areas of = risk were=20 identified as use of violence, criminal lifestyle, a lack of victim = empathy,=20 drug misuse and a lack of responsibility for offending behaviour. The = board=20 said this:

"Offence related programmes recommended to address his=20 identified areas of risk were for him to be assessed for the = Enhanced=20 Thinking Skills (ETS) Programme in order to explore his thinking = style,=20 assessed for the FOCUS course in order to assess whether there was a = link=20 between drug misuse and offending and the Cognitive Self-Change = Programme=20 (CSCP) or Controlling Anger and Learning to Manage it (CALM) = regarding his=20 violent offending."
The Parole Board considered the = claimant's case=20 again in February 2006. It decided not to direct his release or = recommend that=20 he be transferred to open conditions. It said that there was no = support among=20 the report writers either for his release, or for his categorisation = to open=20 conditions.

"5 =85 The consensus is that your literacy problems make = your=20 participation in accredited offending behaviour programmes = impossible, yet=20 without such participation your risk reduction cannot be measured. = In the=20 absence of such evidence the Panel can make no positive=20 recommendation."

6. The panel is extremely concerned that unless means are = found=20 to address your offending behaviour without exclusive reliance upon=20 improving your literacy and involvement in offending behaviour = programmes=20 your constructive progress through the prison system will be = impeded.=20

A further Parole Board hearing in December 2008 again decided not = to direct=20 the claimant's release or to recommend his transfer to open = conditions.
The most recent Parole Board decision = was in October=20 2009. The claimant accepted that it would not be appropriate for it to = order=20 his release or to recommend a move to open conditions. The board did = not do=20 so. However, it considered the evidence of the claimant's change = during the=20 course of his sentence. It said this:

"In the absence of evidence of a reduction in risks = through the=20 completion of programmes aimed at addressing your offending = behaviour the=20 Panel must look elsewhere for evidence of change. Other signs are=20 favourable. You have not been involved in violence of any sort since = 2004=20 and [the Probation Officer] reports a dramatic improvement in your = behaviour=20 since then. You have consistently provided negative drugs tests and = have=20 received neither adverse adjudications nor warnings for five years. = You are=20 now an enhanced prisoner with a job in the kitchen where you have = access to=20 hot water or knives that you could easily misuse. This means that = you are=20 now regarded as safe and trustworthy. You are to be congratulated on = this=20 progress and as a result you are being moved to a lower category = prison=20 where you will meet new people and new challenges. If you cope with = these=20 challenges without losing your temper or using violence you will = provide=20 more evidence that the risk you posed in the past has been = sufficiently=20 reduced to test you in open conditions with a view to eventual=20 release."

The board went on to note that if the claimant demonstrated that he = could=20 behave properly in the less controlled environment of HMP Lindholme = =96 where it=20 had been proposed that he be sent =96 consideration could then be = given to the=20 next stage of his rehabilitation. In HMP Lindholme he would have more = contact=20 with his family, which was important in the longer term. The future = remained=20 uncertain but the claimant now had the opportunity to demonstrate that = he had=20 changed and could be trusted in the community. A further period of = testing his=20 behaviour at HMP Lindholme was required before consideration could be = given to=20 any further moves.

The claimant's disability
The Secretary of State accepts that the = claimant can=20 be considered to have a disability for the purposes of the 1995 Act. = Section 1=20 of that legislation identifies a disabled person as someone who has a = physical=20 or mental impairment which has a substantial and long term adverse = effect on=20 his or her ability to carry out normal day to day activities. The = effect of an=20 impairment is a long term effect if, amongst other things, it has = lasted at=20 least twelve months: Schedule 1, paragraph 2(1)(a).
An accepted definition of learning = disability is set=20 out in the White Paper, Valuing People: a new strategy for learning = disability for the 21^st century, Cm. 5086, 2001 =96 an = impaired=20 intelligence with an impaired social functioning, which started before = adulthood, with a lasting effect on development. The British Institute = of=20 Learning Disabilities notes that a common tool used to measure general = intellectual functioning for the adult population is the Weschler = Adult=20 Intelligence Scale. An IQ of 70 or less on that scale suggests the = presence of=20 learning disability. The International Classification of = Diseases, Vol=20 10, produced by the World Health Organisation defines mild mental = retardation=20 as an IQ being in the range of 50 to 69, with likely learning = difficulties in=20 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.
The claimant was assessed in 2004 using = the Weschler=20 abbreviated scale of intelligence. The assessment concluded: "[H]is = full scale=20 IQ was below the level required for the majority of offending = behaviour=20 programmes and fell within the "borderline" range". A more detailed = assessment=20 using the Weschler adult intelligence scale, in 2007, reported a full = scale IQ=20 of 65. In July 2008 an assessment for Newton Lodge, a regional = forensic=20 psychiatry secure unit operated by the NHS, concluded that what the = claimant=20 would most benefit from is "more one to one support by a skilled tutor = who was=20 trained in managing and teaching individuals with [his] limitation and = abilities". In early March 2009 there was an assessment conducted by a = Dr=20 Singh for Rampton Hospital, a high-secure NHS hospital. Dr Singh = stated that=20 the claimant's IQ score was more likely to be a reflection of a lack = of=20 educational attainment or a specific reading retardation, such as = dyslexia,=20 rather than a learning disability. Methods for his progress, opined Dr = Singh,=20 were access to specialist education sessions which were appropriate = for his=20 level of abilities, and to address learning difficulty (dyslexia) in = order to=20 improve his literacy skills "so that he can access prison offender = behaviour=20 programmes or adapted behaviour programmes".
In September last year the claimant's = solicitors=20 commissioned a report by Dr A Kearns, a consultant forensic = psychiatrist. Dr=20 Kearns reported that the claimant told him that his fear was that he = would=20 move to a more open prison but still receive no help. He was emphatic = that he=20 did not want to move directly out of prison. The consultant forensic=20 psychiatrist for HMP Long Lartin, Dr Kenny Herbert, informed Dr Kearns = that he=20 had referred the claimant to hospital psychiatric services but, in the = light=20 of their deeming him to be unsuitable for admission, "a deficit = appeared to=20 exist in the provision for people with needs such as his which should = be=20 rectified". In interview the claimant was courteous, pleasant and calm = but he=20 frequently struggled to express himself.
Under the heading "Opinions and = Recommendations",=20 Dr Kearns explained that the educational history, occasional history, = formal=20 assessments and performance at interview indicated that the claimant = was a man=20 who was functioning intellectually in the range of learning = disability.=20 Further specialist evaluation would be necessary to determine his low = level of=20 literacy, even taking into account his intellectual capacity. He had = been=20 unsuccessfully assessed by two specialist psychiatric services for = possible=20 admission to hospital. That left an impasse. "The various courses in = prison=20 for anger management, thinking skills and similar work are excluded = from him=20 by virtue of his intellectual ability".
The move to less secure prison was the = most=20 promising way forward, although Dr Kearns believed that the claimant = would=20 benefit greatly from further assessment and treatment, particularly in = relation to anger management, understanding emotions and substance = misuse. The=20 completion of such work would provide a more robust assurance of the = lowering=20 of risk and could be included in a programme of gradual reintegration = into the=20 community from open prison settings. The educational component = necessary would=20 be most likely appropriately addressed by a teacher with experience in = the=20 education of adults with learning disability and, ideally, with = specific=20 experience of dyslexia. The most effective start might be one to one = sessions.=20 He was clearly dissatisfied with efforts to help him but Dr Kearns' = perusal of=20 the documentation did not suggest that, in fact, efforts had not been = made. Dr=20 Kearns noted perceptive and committed comments by various staff in = relation to=20 the claimant's case.

The claimant in prison
A Sentence Planning and Review Board = in January=20 2003 identified offending behaviour work for the claimant as an = assessment for=20 the Enhanced Thinking Skills (ETS) course and, to follow, Controlling = Anger=20 and Learning to Manage (CALM) were he to be found suitable. There was = a=20 further Sentence Planning Board for the claimant in February 2004. At = that=20 stage education was identified as the key factor. The claimant had = stated=20 during his induction process to prison that he did not wish to engage = with the=20 CARATS (Substance Misuse Service) or any other services and that he = wanted=20 first to address his difficulties in reading and writing. There is a = report by=20 his basic skills literacy teacher, later that year, who suggested that = the=20 claimant be provided with a scribe for the ETS and FOCUS (drug misuse) = courses.
In 2004 the prison recorded the = claimant as having=20 participated in one to one tuition in literacy, although he later = declined to=20 attend further sessions. There is no information on the prison files = to=20 indicate the reasons. In his statement for this hearing the claimant = explains=20 that he was in a classroom with many people and the teacher's = attention was=20 taken by others. The claimant adds that he could not cope with this = low level=20 of support, and that he had no choice but to relinquish the course = since he=20 was not learning anything and was becoming more frustrated.
A report on 22 December 2004, by a = chartered=20 forensic psychologist at HMP Long Lartin, said that the claimant's = overall=20 assessed intellectual ability, which was not affected by the problems = he=20 experienced with literacy, "has resulted in him not being offered a = place on=20 accredited offending behaviour programmes". The report referred to = memoranda=20 sent to the claimant by the Enhanced Thinking Skills treatment manager = and the=20 FOCUS treatment manager, that he would have to demonstrate significant = improvements in literacy before being offered a place on offending = behaviour=20 programmes. To his credit, the clinical forensic psychologist noted, = there was=20 evidence on the file which suggested that the claimant had previously=20 expressed an interest in completing offending behaviour work.
During 2005 the claimant attended some = Skills for=20 Life courses run within the prison although he did not continue = attending. In=20 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=20 complete programmes that will ameliorate his behaviour and his = attitude=20 toward others before release can be considered. Clearly at this = juncture=20 without any participation in any group programme the risk of = offending must=20 remain relatively the same".
Then at the Sentence Planning Board in = March 2006=20 targets were again set around education, but also included = psychological=20 assessments and assessments for accredited offending behaviour = programmes, the=20 latter to be completed subject to the necessary educational outcomes = being=20 achieved. On 20 March 2006, at an internal prison meeting, his basic = skills=20 literacy teacher again suggested that he be provided with a scribe. An = additional case conference later in the year recommended that the = claimant=20 should undertake an assessment to determine the level of his = intellectual=20 functioning. Previously he had been reluctant to engage when he became = aware=20 that the assessment would be conducted by a psychologist from a unit = which he=20 believed had written an unfair report in the past. This time he = agreed. Around=20 this point he is recorded as attending a skills for life course and = was=20 praised by his tutor for his enthusiasm. However, "he stopped = attending due to=20 his reaching his limit and more specialist help maybe required in = helping=20 [him] with his dyslexia".
The next Sentence Planning Board, on 1 = February=20 2007, recorded that the claimant had declined to engage with staff = both for an=20 OASys assessment and an IQ assessment. However, he was praised for his = general=20 good behaviour and improved adjudicational record. At another internal = prison=20 meeting on 30 July 2007 the following answers were recorded in reply = to=20 questions: had any progress been made? "None to date. Unable to access = programmes because of poor literacy skills due to dyslexia"; any = reduction in=20 risk? "None to date. Unable to access programmes because of poor = literacy=20 skills due to dyslexia"; reasons for decision to transfer/remain at = Long=20 Lartin? "Not recommended. [The claimant] needs specific learning help. = Until=20 he complies with IQ assessment the service is unable to determine the = best=20 facility for this".
The summary of that meeting noted the = claimant's=20 refusal to comply with staff for the OASys and IQ assessments; that he = had a=20 history of disagreement with psychology staff and felt that the prison = was=20 deliberately holding back his progress; that he needed specific help = with his=20 learning difficulty; but that he needed an up to date IQ assessment to = determine if educational work had improved his intelligence. "[The = claimant]=20 is refusing to undergo the IQ assessment and the prison is unable to = make a=20 judgment of what is best for [him] until this is done". "At the moment = [the=20 claimant] cannot undertake programmes and is unable to evidence a = reduction in=20 risk. The way a life sentence is structured [the claimant] cannot = progress=20 because he is unable to attend programmes at his current educational = level".=20
As indicated earlier the full IQ test = was=20 completed later in the year. The report on this noted that the = assessment "was=20 used to further assess [the claimant's] capacity to benefit from the = offending=20 behaviour programmes offered by the Prison Service". It reported that = the=20 majority of offending behaviour programmes required offenders to have = a full=20 scale IQ of 80 but that the claimant's was below the threshold = required. His=20 verbal IQ, verbal comprehension index and working memory index all = fell within=20 the "extremely low" range, which suggested that he would not have the = capacity=20 to benefit from offending behaviour programmes delivered by the prison = service.
At a Sentence Planning Board on 24 = June 2008 a=20 referral for assessment to Newton Lodge, the NHS unit, was discussed. = It was=20 noted that the claimant requested a return to education while awaiting = the=20 assessment from Newton Lodge. The claimant completed some work under = the "toe=20 by toe" scheme, which is a peer delivered literacy programme for = prisoners=20 with poor literacy skills. The claimant's withdrawal from the scheme = coincided=20 with the transfer of his mentor to another establishment and the = receipt of a=20 negative response from Newton Lodge, informing him that he would not = be=20 accepted there. The report from Newton Lodge said that it had been = difficult=20 for the claimant to progress in the criminal justice system because he = had not=20 been able to demonstrate a reduction in risk. That was due, it was = said, to=20 his inability to participate in offender behaviour programmes because = of his=20 IQ being below the threshold required for the majority of these = programmes. He=20 had, however, engaged and participated well in education sessions and = had been=20 able to improve his literacy skills.
At the June 2008 Sentence Planning = Board, the=20 claimant was given credit for his hard work and patience in the = referral=20 process. It was also noted that the CARATS team had reported that he = had a=20 positive effect on drug users within his wing and that wing reports = generally=20 underlined his good institutional behaviour and work ethic. The = claimant began=20 working in the prison kitchens in July 2008. In the view of the Prison = Service=20 this demonstrated an ability not only to maintain a job within the = institution=20 but to hold a trusted position in a sometimes difficult and stressful = role.=20 Previously the risks of placing the claimant in an environment with = ease of=20 access to weapons such as knives and hot liquids would have been = considered=20 too high.
There was a memorandum by Dr Ball, of = the offender=20 management unit at HMP Long Lartin, on 12 November 2008. Dr Ball = explained=20 that with an IQ of 65 the claimant could not access any accredited = offending=20 behaviour programmes. Although increasingly scarce, neither would he = benefit=20 from completing adapted programmes, programmes adapted for people with = a low=20 IQ, since the claimant's IQ was below the minimum level required. This = meant,=20 explained Dr Ball, that the claimant could not demonstrate a reduction = of risk=20 and as a life-sentence prisoner was unlikely to be released or even = progress=20 towards release. He needed to undertake work with specialist = providers.
On 24 December 2008 Mr Gower, deputy = head of=20 offender management at the prison, and the claimant's designated = manager,=20 contacted the National Offender Management Service about adapted = offending=20 behaviour programmes. The response was that these were unsuitable and = that one=20 to one work should be explored. In January 2009 the possibility of a = member of=20 staff working with the claimant to deliver the core concepts of = offending=20 management programmes was discussed between the prison and the = National=20 Offender Management Service. However, individual work was not = proceeded with.=20 It seems the prison was unable to locate anyone with suitable skills = locally.=20 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=20 had later disengaged and had previously refused to comply with = assessments,=20 i.e. OASys and IQ, and had been reluctant to engage with the = psychologist at=20 the prison to undertake an assessment of his intellectual functioning. =
At the Sentence Planning Board on 6 = January 2009=20 the board discussed the possibility of a move to another category B = prison.=20 The claimant was again praised for his patience and control during a=20 frustrating and uncertain time. It was acknowledged that he held a = trusted=20 position within the kitchen environment, and a move to Rampton = Hospital=20 remained a possibility. Meanwhile, there had been a reconciliation = between the=20 claimant and his family. That was seen as a positive factor in the = reduction=20 of risk of re-offending and as a factor promoting a pro-social = behaviour. It=20 was the combination of that and his positive prison employment = behaviour which=20 contributed to the decision, in May 2009, to locate the claimant = within=20 category C conditions. The less secure conditions, it was said, would = allow=20 his improved behaviour to be further tested to see if it was equally=20 demonstrated in a different environment. A probation assessment in = late=20 September 2009 said this:

"There is no doubt that [the claimant] has been let down = by the=20 system in that the treatment he required has not been forthcoming = due to his=20 learning difficulties. Naturally he has not had any control over = this=20 situation and he has languished in prison without any real = offence-focused=20 work being completed. Thankfully as indicated in the information I = have=20 received he does seem to have changed his attitude over the last = five years=20 or so and perceivably his outlook has matured so that, at least in a = high=20 risk establishment, his risk of harm potential seems to have been = reduced to=20 some degree."
The Sentence Planning Board meeting at = HMP=20 Lindholme on 23 December 2009 recorded that the claimant had settled = in well,=20 had shown adaptability, was keen to work and had been appropriately = employed.=20 He presented a high risk to the public and to staff and a low risk in = all=20 other respects. He had shown a marked improvement in his behaviour = since his=20 last adjudication in 2004. He was on the enhanced level of the = Incentive for=20 Prisoner Scheme. Since arriving there had been nothing but positive = reports=20 from his wing staff and he was described by his employer as being an = excellent=20 worker. The recommendation was that he engage fully with the = assessment=20 proposed with a psychologist and that he maintain his good level of = behaviour.=20 It was also important that he strengthened family ties. The = possibility of a=20 partnership in relation to education was raised, but the claimant said = that he=20 was not happy working with other prisoners. He was open and = forthcoming during=20 the board's discussions and demonstrated a keenness to progress in = line with=20 the assessment that he would be undertaking.
In a letter to the claimant's = solicitors on 10=20 February 2010, the date of this hearing, the Secretary of State wrote = that=20 Professor Taylor, of the Forensic Services directorate at Northgate = Hospital,=20 had been asked to assess the intellectual and cognitive functioning of = the=20 claimant and to provide a clinical assessment of his treatment and = risk=20 management needs.

PRISON POLICIES AND THE CLAIMANT

Prison policies
Under the Prison Act 1952, the = Secretary of State=20 is responsible for prisons: ss. 1, 4. Pursuant to that general = responsibility=20 he has issued a number of Prison Service Orders ("PSO") and Prison = Service=20 Instructions ("PSI").
PSO 4700 is the indeterminate sentence = manual. The=20 section dealing with short term lifers, normally those with a tariff = of five=20 years or less, explains that they are managed differently from lifers = with=20 longer tariffs, because of the overall objective to release lifers on = tariff=20 expiry if risk factors permit. The statutory entitlement to a review = before=20 the Parole Board might be triggered relatively shortly after = conviction for a=20 short term lifer: para 4.13.2. The explanation continues as follows: =

"The essential elements of the policy for short term = lifers and=20 arrangements for their management through their period in custody = are as=20 follows:

=85

complete any specialist assessments required=20

=85

CARATS, CALM, CSCP etc =85 commence offending behaviour=20 work."

In that paragraph there appears the following in bold:

"They [short term lifers] must be prioritised for = offending=20 behaviour programmes according to the length of time left till = tariff=20 expires. The same principle must apply for all lifers, so that = length of=20 time tariff expiry is taken into account when allocating offending = behaviour=20 programme resources. In other words lifers must be given every = opportunity=20 to demonstrate their safety for release and tariff = expiry."
PSO 2855 is entitled "Prisoners with=20 disabilities". It says it sets out prison governors' responsibilities = under=20 the 1995 Act towards prisoners with disabilities. The order provides=20 instructions and guidance on prison service policy and the = requirements=20 introduced by that legislation. Paragraph 1.10 of the order contains = the=20 prison service standard for disabled prisoners: "The Prison Service = ensures=20 that all prisoners are able, with reasonable adjustment, to = participate=20 equally in all aspects of prison life without discrimination".
Chapter 3 of the policy is headed = "Prison Service=20 Policy Statement". It begins that prisons will treat all prisoners = with=20 disabilities with decency and without discrimination and will offer = them a=20 quality of opportunity in all aspects of prison life. Prisoners with=20 disabilities will be offered equal opportunity to address their = offending=20 behaviour and will be treated in a safe and secure environment. The = Prison=20 Service will promote equality of opportunity for prisoners with = disabilities.=20
Chapter 6 of the order is entitled = "The prisoner=20 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=20 important that those interventions needed to address the likelihood of = re-offending are available to all prisoners. Paragraph 6.18, on = education and=20 skills, provides that, where appropriate, adjustments need to be made = to the=20 provision of these and to alternative formats. Particular attention = should be=20 made to ensuring that activities should not exclude prisoners with a = learning=20 disability or difficulty. Paragraph 6.36 is headed "Offending = behaviour=20 programmes".

"It is vital that prisoners with disabilities can access = any=20 offending programmes as identified in their sentence plan, with = adjustments=20 made as necessary, e.g. relocation in a course if = inaccessible".

Later paragraphs, paragraphs 6.40-6.41, outline that a prisoner = with a=20 disability should not be prevented from being re-categorised and = transferred=20 to a new establishment simply because of that disability. Each case = must be=20 assessed on the need of the individual prisoner.
"Reasonable adjustments" is the title = of chapter 8=20 of the order. Paragraph 8.1 reads:

"Some factors when considering the reasonableness of = making=20 adjustments: whether taking particular steps would be effective in=20 overcoming the difficulty that disabled people face in getting = access; the=20 extent to which it is practicable for the service provider to take = the step;=20 financial and other costs of making the adjustments; the amount of=20 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=20 reasonable adjustments in respect of prisoners with disabilities, and = to=20 document where these are not possible. Governors need to be aware = that, if=20 reasonable adjustments are not made in respect of a prisoner with a=20 disability, they are vulnerable to legal challenge: para 8.4.
The previous version of PSO 2855, in = effect until=20 2008, contained additional relevant paragraphs. For example, under the = subheading "the duty to provide aids and services", there was = reference to the=20 obligation to seek advice and support through the expertise of an = appropriate=20 professional and voluntary organisation: para 2.6.3. Paragraph 3.1.1 = provided=20 that arrangements had to be made for an assessment of prisoners' needs = during=20 reception and induction and that a record had to be kept about the=20 communication needs of all disabled prisoners. The previous version of = PSO=20 2855 also highlighted that establishments had to take positive steps = to ensure=20 persons had access to educational facilities and programmes (para = 3.3.1(i))=20 and that where attendance at particular courses was necessary for the=20 successful completion of a prisoner's sentence, reasonable adjustments = had to=20 be made to allow prisoners with disabilities to participate (para = 3.3.5(i)).=20 Under "Sentence Planning" specialist staff and organisations were to = be=20 consulted for advice where that was necessary: para 3.4.1. Moreover, = the order=20 required that it was necessary in setting targets to take account of = the=20 special needs of a disabled prisoner

"There may be activities or programmes that are difficult = for=20 disabled prisoners to access. Establishments must consider the = reasonable=20 adjustments that could be made to these activities or provide a = reasonable=20 alternative method of providing them to enable disabled prisoners to = make=20 use of them" (para 3.4.2).
Prison Service Instruction 31/2008, = "Allocation of=20 prisoners with disabilities", contains detailed guidance on the = circumstances=20 in which a disabled prisoner can be transferred to another prison and = on the=20 procedures for so doing. It is said that where a prisoner would under = other=20 circumstances have transferred as a result of a recategorisation = review, or=20 accessed a programme as part of a sentence plan, but the prison is = having=20 difficulties in arranging a transfer because of a disability,

"it is important that prisoners with disabilities are able = to=20 access courses and/or move to a lower category prison as they would = were=20 they not disabled. This has proved to be a problem in cases which = have=20 resulted in Judicial Reviews, with prisons unable to identify where = suitable=20 accommodation exists, or unable to arrange a transfer. Prisoners = with=20 disabilities must be able to follow their sentence plans and satisfy = the=20 conditions for parole" (emphasis in original)."

Under the heading "mandatory action" it is provided that governors = must=20 ensure that prisoners with disabilities are able to access the regime = and=20 appropriate interventions. Where that is not possible at the = particular=20 establishment because appropriate accommodation is not available, and=20 reasonable adjustments can not be made, the prison should contact the = prison=20 management service to identify another establishment with the = appropriate=20 accommodation and courses: para 12. Moreover, prisoners with short = sentences=20 should be considered as soon as possible for those reasonable = adjustments=20 required to ensure that they are able to access the regime: para 18. =
Finally to be mentioned under this = heading is the=20 HMP Long Lartin disability policy. It includes specific consideration = of=20 dyslexia and learning difficulties. Appendix 1 sets out examples of = reasonable=20 adjustments in that context and includes reference to documents and = posters in=20 pictorial format, access to learning support in offending behaviour=20 programmes, simpler forms and easy to understand language for = explanations and=20 instructions.

Offending behaviour programmes
Offending behaviour programmes are = intended to=20 reduce re-offending. The National Offender Management Service runs = some 14=20 different programmes. New programmes are developed on a continuing = basis.=20 Accreditation is given by the Correctional Services Accreditation = Panel. It=20 represents an independent expert view that a course, if delivered as = designed,=20 is likely to reduce re-offending. In addition there are a broad range = of=20 non-accredited programmes which have been approved locally to meet = particular=20 needs.
Whether or not a prisoner requires a = particular=20 accredited course, and if so which, depends on an assessment of = suitability.=20 There are five stages to that: assessing risk, need, responsivity, = readiness=20 for treatment and practical aspects such as whether the programme is = possible.=20 The third factor, responsivity, is designed to ensure that the = programme will=20 be understandable and that the person is ready to engage with it.
It is not uncommon for offending = behaviour=20 programmes to be regarded as a requirement to demonstrate risk = reduction=20 before the Parole Board. Perhaps most notable in that regard are the = comments=20 of the law lords in R (on the application of Wells) v Parole = Board [2009] UKHL = 22; 2009=20 2 WLR 1149, paras 26, 36. In her statement for this hearing, Dr Jo = Bailey,=20 the lead psychologist for the operations directorate of the National = Offender=20 Management Service, emphasises that participation in offending = behaviour=20 management courses is neither necessary nor sufficient to achieve = release. She=20 explains that the Prison Service uses seven so-called pathways to = reduce=20 re-offending as a basis for sentence planning targets of individuals: = (i)=20 accommodation, (ii) education, training, employment, (iii) mental and = physical=20 health, (iv) drug and alcohol misuse, (v) finance, benefit and debt, = (vi)=20 children and families of offenders and (vii) attitudes, thinking and=20 behaviour. Those involved in the risk assessment and management of = offenders=20 are to apply a holistic approach through the pathways model, as a = means of=20 achieving and demonstrating a reduction in the risk of re-offending. =

Intellectual ability and offending behaviour programmes
When assessing suitability for = accredited=20 offending behaviour programmes one of the factors taken into account = is=20 intellectual ability. The Prison Service publication Accredited = offending=20 behaviour and drug treatment programmes, dated May 2007, contained = the=20 following paragraph as part of the foreword:

"Programmes make a difference. They contribute = significantly to=20 the assessment of risk, the reduction of risk and the management of = risk.=20 They provide a wealth of important information about what motivates = and=20 drives offenders and how they might be able to live a successful and = offence-free life. They contribute to the successful management of = an=20 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=20 published by the National Offender Management Service, entitled = Suitability=20 for accredited interventions, May 2009. Both the 2007 and 2009 = documents=20 contain what is entitled the responsivity principle, that is, if a = programme=20 is to be effective its mode of delivery must match the preferred = learning=20 styles and other diverse needs of participants. Thus even when an = offender is=20 suitable for a programme based on risk and need, it may not be = suitable for=20 him or her if it is not delivered in a way to which that person will = respond.=20 The National Offender Management Service is obliged to provide for = offenders=20 with different needs and treatment. Managers must make all reasonable=20 adjustments to ensure programmes are accessible to those who could = potentially=20 benefit. Then in both the 2007 and 2009 document there appears this = passage in=20 italics:

"Is there any evidence that the offender's IQ is lower = than that=20 necessary to enable meaningful participation in the programme? In = general,=20 an IQ in the region of 80 or below may prevent meaningful engagement = with=20 the material or may cause difficulty coping in the group=20 setting."
Under the heading "Intellectual = ability", both the=20 2007 and 2009 documents ask the question whether an individual has the = necessary intellectual ability to engage with a programme and explains = that=20 many programmes require verbal skills and the ability to grasp = abstract=20 concepts. They note that some offenders are likely to respond better = to=20 information which is delivered in a more repetitive and concrete = manner than=20 is found in the design of more accredited programmes.
Dr Jo Bailey, the lead psychologist = for the=20 operations directorate of the National Offender Management Service = (NOMS),=20 explains in her statement for this hearing that guidance on = suitability for=20 attendance on offending behaviour programmes is that a minimum IQ of = 80 is=20 necessary. Being below that level is not in itself a barrier to access = but may=20 make it harder for an offender to engage meaningfully. Treatment = managers=20 should consider ways to assist offenders to participate such as = providing=20 individual support or mentoring, for example, through a scribe, = additional=20 support outside sessions, or alternative methods of communication. =
Dr Bailey notes that while alternative = teaching=20 aids can be used to present information, if the issue is one of = concept it is=20 unlikely that an individual will benefit from a programme. Attendance = is=20 likely to create frustration, potential shame and harm. Offending = behaviour=20 programmes are nearly all based on the psychological approach known as = cognitive behaviour therapy. Typically this requires a reasonable = intellectual=20 ability because the concepts used are somewhat abstract and require a=20 reasonable intellectual ability on behalf of the participant. = Offenders with=20 low IQs, such as those with a learning disability, may find some = aspects of=20 the programmes difficult to follow.
In her statement Dr Bailey notes that = the National=20 Offender Management Service is currently reviewing the range of = accredited=20 programmes and has developed proposals which are awaiting approval = from the=20 Correctional Services Accreditation Panel. In fact in a letter dated = 10=20 February 2010 the Secretary of State explains to the claimant's = solicitors=20 that proposals for developing an adapted version of the Thinking = Skills=20 Programme, and a new programme for violent offenders, to accommodate = those=20 with lower functioning, have now been considered by the panel and = agreed. It=20 is estimated that these new programmes will take a further eighteen to = twenty=20 four months to develop.

The claimant and offending behaviour programmes
Ordinarily, says Dr Bailey, the high = risk of=20 re-offending, and the medium/high risk of causing serious harm to = others, on=20 the part of the claimant, would suggest an initial suitability for the = Thinking Skills Programme (TSP), the Controlling Anger and Learning to = Manage=20 Programme (CALM) and the Cognitive Self-Change Programme (CSCP). The = treatment=20 manager at HMP Long Lartin has indicated, however, that the claimant = did not=20 meet the criteria for that programme. Assessment would be needed to = determine=20 the claimant's capacity to undertake the other two programmes. = Continuing,=20 however, Dr Bailey says that she has discussed the matter with Dr = Ball, the=20 HMP Long Lartin forensic psychologist. Dr Ball opines that the = claimant's=20 working memory would make it difficult for him to process and retain = new=20 information, and developing a conceptual understanding would present=20 difficulties. Indeed, starting but not completing a programme might = serve to=20 increase his likelihood of re-offending. A group setting could = potentially be=20 very humiliating for the claimant, and in Dr Ball's view it is = debatable=20 whether he will maintain attendance.
In line with her view that the = perceived=20 requirement for the claimant to attend offending behaviour programmes = had been=20 overstated in the past, Dr Bailey suggests that this has occurred due = to a=20 routine identification of a range of interventions in the prison = service,=20 rather than a useful focus of how best to achieve the necessary = outcomes in=20 the claimant's case. In her statement she contends that the claimant = needs to=20 be able to demonstrate to the Parole Board that he is at sufficiently = low risk=20 of re-offending, but that offending behaviour programme should not = have been=20 identified as a potential treatment target for the claimant.

"We see that OBPs [offending behaviour programmes] have = remained=20 a sentence plan target, albeit a prospective one. This seems to be = more due=20 to a routine identification of the range of interventions within = HMPS=20 [prisons] rather than a useful focus on how best to achieve the = outcomes in=20 [the claimant's case] =85 OBPs should not have remained identified = as a=20 potential treatment target for [the claimant] for two reasons. = First, due to=20 the acceptance of those working with him that they are not a = suitable=20 treatment path. Second, because he has achieved positive outcomes = (e.g.=20 improved institutional behaviour and improved emotional control) via = other=20 means hence could be identified as no longer having sufficient = "need" for=20 this work. The failure to remove the OBP target for [the claimant] = is in my=20 view an error."
In Dr Bailey's view the sentence = planning process=20 should concentrate on other activities likely to be of more benefit to = the=20 claimant such as education and literacy. In the claimant's case the = Prison=20 Service seem to have lost sight of a proportional and balanced = approach. It=20 has become overly focused on his access to offending behaviour = programmes when=20 he appears to be benefiting from other avenues. Without attending the = CALM=20 programme, for example, the claimant had clearly demonstrated a = behavioural=20 improvement which that programme would have been designed to achieve. = In terms=20 of the future the major need, in Dr Bailey's opinion, is for the = claimant to=20 improve his education and literacy skills. There might also be one to = one work=20 on his anger and emotional management. The claimant remained = adjudication free=20 and again had been employed in the kitchens. It appeared that his = ability to=20 manage his emotions and refrain from violence had proved itself to be = stable=20 over time and location. That, in Dr Bailey's view, further suggested = that a=20 formal accredited offending behaviour programme was not warranted. =

DISABILITY DISCRIMINATION
The claimant advances his = discrimination claim in=20 two ways. First, and most importantly, he contends that the Secretary = of State=20 has acted unlawfully under the Disability Discrimination Act 1995 = ("the 1995=20 Act") (i) in breaching his duties to make adjustments, and to provide = aids and=20 services, to enable the claimant and inmates with learning = disabilities to=20 undertake offending behaviour work; (ii) in directly discriminating = against=20 the claimant by refusing to provide him with offending behaviour work; = and=20 (iii) in failing to comply with the duty to eliminate discrimination = under=20 section 49 of the 1995 Act by not putting in place practices relating = to the=20 provision of offending behaviour work for those with learning = disabilities=20 similar to the claimant's.

Legal principles

(a) A service, or the performance of a public authority = function?
The first two aspects to the = claimant's case under=20 the 1995 Act =96 that there is indirect and direct discrimination =96 = were=20 advanced under both section 19(1) and section 21B(1). Under section = 19(1) it=20 is unlawful for a provider of services to discriminate against a = disabled=20 person. Section 21B(1) makes it unlawful for a public authority to=20 discriminate against a disabled person in carrying out its functions. =
The claimant contended that the = discrimination=20 alleged here fell within the services provisions because the Secretary = of=20 State was a provider of services within the meaning of section 19(2) = and=20 19(3)(h): he is concerned with the provision of services to a section = of the=20 public. In Alexander v Home Office [1988] ICR 685 it was = held=20 that prisoners are a section of the public for the purposes of the = equivalent=20 provisions of the Race Relations Act 1976. Moreover, in Gichura = v=20 Home Office [2008] EWCA Crim 697; [2008]=20 ICR 1287 the Court of Appeal accepted that a disabled person = detained in=20 an immigration detention centre was entitled to claim that he had been = discriminated against in the provision of services under section 19. =
Gichura v Home Office = was an appeal=20 where the judge had struck out a claim under section 19 of the 1995 = Act=20 alleging discrimination in the reception procedures, and in the = services=20 provided, in both a Home Office immigration detention centre, and an=20 immigration detention centre operated under contract to the Home = Office by a=20 private company. The claimant was a wheel-chair user and failed asylum = seeker=20 awaiting removal from the United Kingdom. The services included access = to=20 toilet and bathroom facilities, the provision of suitable bedding and = the=20 provision of medical services. On appeal the claimant conceded that = the=20 reception procedures and acts of searching him did not fall within = section 19,=20 and conversely the Home Office conceded that the services mentioned = did. The=20 issue before the Court of Appeal was whether it was arguable that = everything=20 the private company did =96 the provision of the facilities, bedding, = medical=20 care and so on =96 were part and parcel of a governmental function, = the=20 detention of a failed asylum seeker, and thus not within section 19. = The Court=20 of Appeal held that it was arguable that what the company was doing = was caught=20 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=20 of a service is important because it is important that the = disability and=20 other discrimination legislation does apply in circumstances which = it is=20 natural to think it should apply. I do not think that it is = conceivably=20 right to say now that Parliament intended this very important = legislation=20 not to apply in circumstances such as the detention centre with = which we are=20 concerned with, detention in police custody or detention in prison. = Some of=20 the functions that were performed there are purely governmental, = like, as is=20 conceded in this case, the administrative handling of the detainee = on his=20 arrival. But once he is there he is as a detainee a member of a = section of=20 the public. He is provided with what are in truth services and there = is no=20 reason either in the Act or in the authorities to which I have = referred to=20 exclude those services from the ambit of the Act".
Although the point was not fully = argued before me,=20 it seems to me that what is at issue in this case concerns a purely=20 governmental function, the continued detention of the claimant. The = claimant's=20 case is that he is being detained in circumstances where, if he had = access to=20 offending behaviour programmes, he would be able to demonstrate a = reduced risk=20 so that his detention would be shortened. Offender behaviour = programmes are=20 not services akin to facilities, bedding, medical care, or even = prisoner=20 education. The way the claimant's case was advanced coupled offender = behaviour=20 programmes with detention, or at least its truncation. Detention is, = of=20 course, the other end of the spectrum to the administrative handling = of the=20 failed asylum seeker on his arrival at the immigration detention = centre, which=20 Buxton LJ treated as a governmental function. Offending behaviour = programmes=20 have an educational purpose, but their function is directed to = reducing risk=20 and thus release.
There is no need to decide the matter = since the=20 claimant's case falls neatly within section 21B, which is directed = expressly=20 at discrimination by public authorities. In any event sections 19 and = 21B are=20 largely mirror provisions. With respect to this claim the potentially = relevant=20 differences are only twofold. First, public authorities may justify=20 discrimination when treating the disabled person equally favourably = would, in=20 the particular case, involve substantial extra costs and, having = regards to=20 resources, the extra costs would be too great: s. 21D(4)(c). Secondly=20 treatment, or a failure to comply with a duty, is justified if the = costs of=20 the public authority which give rise to the treatment or failure are a = proportionate means of achieving a legitimate aim: s. 21D(5). Neither=20 justification was seriously agitated before me by the Secretary of = State.

(b) Discrimination and public authorities
It is unlawful under the 1995 Act for = a public=20 authority to discriminate against a disabled person in carrying out = its=20 functions: s. 21B(1). Under section 49A(1) there is also a general = duty=20 imposed on a public authority in carrying out its functions, having = due regard=20 to the need, to eliminate discrimination; to eliminate harassment of = disabled=20 persons related to their disabilities; to promote equality of = opportunity=20 between disabled persons and other persons; to take steps to take = account of=20 disabled persons' disabilities, even where that involves treating = disabled=20 persons more favourably than other persons; to promote positive = attitudes=20 towards disabled persons; and to encourage participation by disabled = persons=20 in public life.
Discrimination is defined in section = 21D. Direct=20 discrimination is dealt with in section 21D(1), the duty to make = adjustments=20 in section 21D(2).

"(1) For the purposes of section 21B(1), a public = authority=20 discriminates against a disabled person if-

(a) for a reason which relates to the disabled person's=20 disability, it treats him less favourably than it treats or would = treat=20 others to whom that reason does not or would not apply; = and

(b) it cannot show that the treatment in question is = justified=20 under subsection (3), (5) or (7)(c).

(2) For the purposes of section 21B(1), a public authority = also=20 discriminates against a disabled person if-

(a) it fails to comply with a duty imposed on it by = section 21E=20 in circumstances in which the effect of that failure is to make=20 it-

(i) impossible or unreasonably difficult for the = disabled=20 person to receive any benefit that is or may be conferred,=20 or

(ii) unreasonably adverse for the disabled person to=20 experience being subjected to any detriment to which a person is = or may=20 be subjected,

by the carrying-out of a function by the authority;=20 and

(b) it cannot show that its failure to comply with that = duty is=20 justified under subsection (3), (5) or (7)(c)."
Discrimination is not unlawful if it = is justified.=20 Justification is dealt with in sections 21D(3)-(5). Treatment, or a = failure to=20 comply with a duty, is justified if, in the opinion of the public = authority,=20 one or more of certain conditions specified are satisfied, and it is=20 reasonable, in all the circumstances of the case, for it to hold that = opinion:=20 s. 21D(3). The excessive cost condition in section 21D(4)(d) has = already been=20 outlined. Otherwise the conditions for justification are that the = treatment,=20 or non-compliance with the duty, is necessary in order not to endanger = health=20 or safety; that the disabled person is incapable of entering into an=20 enforceable agreement, or of giving an informed consent, and for that = reason=20 the treatment, or non-compliance with the duty, is reasonable in the=20 particular case; and that the treatment, or non-compliance with the = duty, is=20 necessary for the protection of rights and freedoms of other persons: = s.=20 21D(4). As we have seen treatment, or a failure to comply with a duty, = is also=20 justified if the acts of the public authority which give rise to the = treatment=20 or failure are a proportionate means of achieving a legitimate aim: s. = 21D(5).=20
The duty to make adjustments, in = section 21D(2),=20 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=20 receive any benefit that is or may be conferred, or

(b) unreasonably adverse for disabled persons to = experience=20 being subjected to any detriment to which a person is or may be=20 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=20 reasonable, in all the circumstances of the case, for the authority = to have=20 to take in order to change that practice, policy or procedure so = that it no=20 longer has that effect.

=85

(6) Subsection (7) applies where an auxiliary aid or = service=20 would-

(a) enable disabled persons to receive, or facilitate the=20 receiving by disabled persons of, any benefit that is or may be = conferred,=20 or

(b) reduce the extent to which it is adverse for disabled=20 persons to experience being subjected to any detriment to which a = person is=20 or may be subjected, by the carrying-out of a function by a public=20 authority.

(7) It is the duty of the authority to take such steps as = it is=20 reasonable, in all the circumstances of the case, for the authority = to have=20 to take in order to provide that auxiliary aid or = service.

=85.

(9) Nothing in this section requires a public authority to = take=20 any steps which, apart from this section, it has no power to=20 take.

(10) This section imposes duties only for the purposes of=20 determining whether a public authority has, for the purposes of = section=20 21B(1), discriminated against a disabled person; and accordingly a = breach of=20 any such duty is not actionable as such."
In R (on the application of = Lunt) v=20 Liverpool City Council [2009] = EWHC=20 2356 (Admin); [2010]=20 RTR 5, Blake J helpfully set out counsel's suggested six step = approach=20 which a public authority will need to address in relation to its duty = to make=20 adjustments to avoid indirectly discriminating:

"1. Did the [public authority] have a practice policy or=20 procedure?

2. Did that practice policy or procedure make it = impossible or=20 unreasonably difficult for disabled persons to receive any benefit = that is,=20 or may be, conferred by the [public authority]?

3. If so, is it under a duty to take such steps as is = reasonable=20 in all the circumstances of the case for it to change that practice = policy=20 and procedure so it no longer has that effect?

4. Has the [public authority] failed to comply with its = duty to=20 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?=20

6. If so, can the [public authority] show that its failure = to=20 comply is justified =85 ?"
As far as section 49A is concerned, it = requires=20 the relevant public body to have "due regard" to the specified = matters. This=20 does not impose a duty to achieve results. It does require the public = body to=20 take into account any countervailing factors which, in the context of = the=20 function being exercised, it is proper and reasonable for the public = authority=20 to consider: R (Brown) v Secretary of State for Work and = Pensions et=20 al [2008] = EWHC=20 3158 (Admin) [81]-[82]. The decision maker need not refer = expressly to=20 s.49A. Rather the question is whether the relevant public body has in=20 substance incorporated the thought processes required by section 49A:=20 R(AM) v City Council et al [2009] = EWHC 688=20 (Admin).

The Secretary of State's submissions
The Secretary of State accepts that = the claimant=20 has a learning disability that is of a nature and degree as to amount = to a=20 disability within the meaning of the 1995 Act. However, he denies that = he has=20 been in breach of any of his duties under the 1995 Act. Essentially, = the=20 Secretary of State's case is that the claimant has received attention = and=20 assistance appropriate to his individual circumstances. The Secretary = of State=20 has explored and offered to the claimant a variety of means of = enabling him to=20 reduce the risk that he poses. The Secretary of State has had = extensive=20 discussions with the NHS to see whether the claimant should be = accommodated in=20 hospital, but it is now clear that that hospital is not appropriate. = The=20 Secretary of State has also offered the claimant educational provision = which=20 the claimant has accepted, but only to a limited extent. The Secretary = of=20 State has provided the claimant with an environment in which he can, = in his=20 day to day activities, learn to manage the stresses of daily life = without=20 resorting to violence. At the Sentencing Planning Board in December = 2009 the=20 claimant said that he had reached his "level" and had no interest in = attending=20 education. Notwithstanding that, the Secretary of State still intends = to=20 arrange a further specialist educational assessment of the claimant. =
Moreover, the claimant has made = progress. By his=20 good behaviour and increasing maturity since 2004 he has demonstrated = a=20 reduction in the risk he poses. This has been recognised by the Parole = Board.=20 Realistically, this is likely to remain the most effective means = towards the=20 end of satisfying the board that it is no longer necessary for the = claimant to=20 be confined. He has transferred to a category C prison, HMP Lindholme, = where=20 he has the opportunity to show how he can manage in conditions of = lesser=20 security. There is no reason for him not to continue to make further = progress,=20 and to do so without undertaking any formal accredited offending = behaviour=20 programme. The Secretary of State notes that the claimant himself = asserts that=20 he has made considerable progress, without completing any accredited = offending=20 behaviour programmes. In October 2009 the Parole Board agreed and=20 congratulated the claimant on his progress. The various policy = documents and=20 the facts of the claimant's individual case together demonstrate that = the=20 defendant has had due regard to the matters specified in section 49A. =
As far as offending behaviour = programmes are=20 concerned, the Secretary of State points out that the release of a = life=20 prisoner depends on satisfying the Parole Board that it is no longer = necessary=20 for him to be confined: Crime (Sentences) Act 1997, s.28(6)(b). = Participation=20 in offending behaviour courses is neither necessary, in fact or in = law, nor=20 sufficient, to achieve release. What, if any, offending behaviour = programmes=20 may help a prisoner to reduce his risk of re-offending will depend on = the=20 facts of each case. Even if a particular course might benefit a = particular=20 prisoner, it does not follow that the prisoner will not be released = unless he=20 has successfully completed that course. The claimant has been assessed = as=20 unsuitable for various courses by reason of his learning disability. = The=20 claimant's intellectual level is such that he would not be able to = keep up=20 with the course. Indeed, placing the claimant on such a course could = be=20 counterproductive. It would not be reasonable to provide bespoke = courses for=20 all prisoners who, by reason of disability, are unable to follow = mainstream=20 offending behaviour courses. The type and severity of disablements is = so=20 varied that it would be prohibitively expensive to provide = individually=20 tailored courses. Further, in the case of a learning disability, = prisoners may=20 lack the intellectual ability to assimilate the abstract concepts that = feature=20 in such courses so that no amount of adaptation will render the course = suitable for them.

Discussion and analysis
It seems to me that the most = convenient approach=20 to the central issue in this case is to focus on the duty to make = adjustments=20 and to utilise the six-step analysis set out in Lunt [2009] = EWHC 235;=20 [2010]=20 RTR 5. That was in essence how his case was advanced. Each step in = the=20 analysis of whether there is indirect discrimination must be = approached,=20 however, against the backdrop of the broad and beneficial = interpretation of=20 the legislation which is demanded by the Court of Appeal's judgment in = Gichura [2008] EWCA Crim 697; [2008]=20 ICR 1287.
The first step is easily surmounted: = the Secretary=20 of State has policies, practices and procedures regarding access to = offender=20 behaviour programmes. As most commonly expressed in PSO 4700 that is = that=20 short tariff lifers should be given access to sufficient offending = behaviour=20 coursework to give them every opportunity to demonstrate their safety = for=20 release at tariff expiry, and that short tariff lifers must be = prioritised for=20 offending behaviour programmes. PSO 2855 adds that it is vital that = prisoners=20 with disabilities be able to access offending behaviour programmes as=20 identified in a prisoner's sentence plan, with adjustments as = necessary.=20 "Programmes", as the May 2007 document on assessment for offending = behaviour=20 programmes put it, "make a difference".
Then it is necessary to consider = whether the=20 practice, policy or procedure makes it impossible or unreasonably = difficult=20 for the claimant to undertake offending behaviour programmes provided = to other=20 prisoners. It will be recalled that both the May 2007 and May 2008 = documents=20 about suitability for accredited programmes contain the explicit, and=20 italicized, statement that IQ in the region of 80 or below may prevent = meaningful engagement with the material in a programme. That makes it=20 difficult, or even impossible, for inmates with a learning disability = like the=20 claimant's to make use of offending behaviour work within the same = period as=20 other prisoners.
As far as the claimant is concerned, = the reports=20 for his first Parole Board review in May 2003 identified the = claimant's risk=20 factors as including violence, poor emotional control, substance abuse = and=20 distorted thinking and recommended his assessment for a number of = offending=20 behaviour programmes as suitable to address his risk factors. As early = as 2005=20 the claimant's external probation officer said that it was of = particular=20 importance that the claimant complete offending behaviour programmes = so=20 release could be considered. That was underlined in the Parole Board = report in=20 January 2006 =96without participation in offending behaviour = programmes his risk=20 reduction could not be measured and no positive recommendation could = be made.=20 Dr Ball, of the offender manager unit at HMP Long Lartin, expressed = the same=20 sentiments in November 2008.
Yet the claimant has been prevented = from making=20 use of those courses, and the reason for this is his learning = disability. The=20 evidence on this is quite clear. To recapitulate briefly, the HMP Long = Lartin=20 chartered forensic psychologist said in December 2004 that the = claimant's=20 intellectual disability resulted in his not being offered a place on a = programme; the Parole Board in February 2006 noted the consensus that = his=20 literacy problems made participation on accredited offending = programmes=20 impossible ("yet without such participation your risk reduction cannot = be=20 measured"); the IQ assessment report of October 2007 concluded that = his score=20 precluded him from offending behaviour programmes and that he was = unable to=20 access them because of poor literacy skills due to dyslexia; and the = probation=20 officer in his September 2009 report noted that he had been "let down = by the=20 system in that the treatment he required has not been forthcoming due = to his=20 learning difficulties =85 and he has languished in prison".
To my mind all this demonstrates that = the=20 practices, policies or procedures of the Secretary of State have made = it=20 impossible for this claimant to make use of offending behaviour work = when the=20 clear message was that he needed it. It follows, under section 21(1), = that the=20 Secretary of State came under a duty to take such steps as were = reasonable in=20 all the circumstances of the case to change those practices so that = the=20 claimant could access offending behaviour work in the same way as = prisoners=20 who are not so disabled. The claimant has persuaded me that the = Secretary of=20 State has failed to take such steps and to consider what steps could = be taken.=20 Those steps might include alternative means, including education and = adapted=20 courses, to enable the claimant to undertake offending behaviour work; = additional aids or services, to enable the claimant to undertake = mainstream=20 courses; and transfer.
This failure to take steps has been = recognised in=20 the system. In his report on the claimant Dr Kearns recounts the = opinion=20 expressed to him by Dr Kenny Herbert, a consultant forensic = psychiatrist at=20 HMP Long Lartin. Dr Kenny Herbert said that a deficit appeared to = exist in the=20 provision for people with needs such as the claimant, which should be=20 rectified. In a letter to the claimant's solicitors on 27 July 2009, = the=20 Ministry of Justice replied as follows to a question about the = availability of=20 auxiliary aids and services which might be available to assist those = like the=20 claimant to undertake existing offending behaviour programmes, normal = or=20 adapted versions.

"There are no additional resources or services available = at Long=20 Lartin. Where the presence of a learning difficulty/disability = prevents=20 access to offender behaviour programmes, Long Lartin will make a = referral to=20 the offender learning skills provided, i.e. Manchester City College, = or to=20 specialist learning disability units.

There is a broad range of other interventions that may be = able=20 to prepare an individual for offending behaviour work or that may be = used=20 for addressing offender's risks.

=85

Long Lartin does not have the ability to facilitate one to = one=20 offending behaviour programmes and there are no adapted one to one = behaviour=20 programmes available nationally."

In reply to a further question whether there were any prisoners = with=20 learning disabilities, throughout the prison estate, not just HMP Long = Lartin,=20 who received offending behaviour work on a one to one basis, the = answer was as=20 follows:

"Information on prisoners undertaking offending behaviour = work=20 on a one to one basis in establishments is not held centrally. Some = prisons=20 have in the past offered individual support for prisoners attending = offender=20 behaviour programmes between group work sessions for those deemed to = be=20 struggling, but this has not been restricted to those with learning=20 difficulties.

Two programmes have been adapted for a developmentally=20 impaired/learning disabled population. Neither of these courses are=20 delivered at Long Lartin.

In respect of Long Lartin specifically, Long Lartin does = not=20 offer one to one offending behaviour work."
One dimension to the Secretary of = State's failure=20 to comply with his duty to take reasonable steps is that he has not = explored=20 adequately making adjustments to existing behaviour programmes so the = claimant=20 could benefit. Dr Kearns suggests that the claimant would benefit from = an=20 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=20 specialist organisations listed in PSO 2855 and the HMP Long Lartin's=20 "Disabled Prisoner Policy". Not until December 2008 did HMP Long = Lartin seek=20 advice from the central Offending Behaviour Programmes Unit in London. = It=20 suggested attempting an existing programme to be delivered on a one to = one=20 basis by a person qualified and experienced in the field of learning=20 disabilities. At that point HMP Long Lartin was unable to identify a = person=20 possessing all of these qualities and qualifications at the local = level. The=20 prison also blamed the claimant for disengaging.
A further avenue would have been to = consider=20 providing a suitably qualified person to assist and support the = claimant so=20 that he could take part in offending behaviour programmes. The = claimant's=20 basic skills literacy teacher suggested a scribe in 2004 and 2006, but = there=20 is no evidence that steps were taken to consider whether this would be = effective. Finally, the Secretary of State might have considered = transferring=20 the claimant to an establishment which was better able to meet his = needs.=20 Movement to NHS establishments was explored, even though it was = ultimately=20 decided that this was inappropriate, but not whether another prison=20 establishment might be better able to meet the claimant's needs.
The upshot has been that the claimant = has been=20 shut out of any offending behaviour work. In essence the Secretary of = State=20 responds that offending behaviour programmes were never appropriate = for the=20 claimant; that, in any event, he has made progress without them; and = that he=20 has spurned opportunities offered. The problem with the first argument = is that=20 over the years the Secretary of State, through his various arms, has = said that=20 the appellant should, at the least, be assessed for offending = behaviour=20 programmes. It is far too late now for Dr Bailey to contend on behalf = of the=20 Secretary of State that this was wrong. The fact is, as she concedes = in her=20 statement, offending behaviour programmes for this claimant "have = remained a=20 sentence plan target, albeit a prospective one".
The second limb of the Secretary of = State's case,=20 is that the claimant has made progress without offending behaviour = work. That=20 is true. The progress is most succinctly stated in the October 2009 = decision=20 of the Parole Board. The Secretary of State also contends that, = additionally,=20 the claimant has needed time to mature. But the key point is that the=20 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=20 his having served well over twice his tariff. In my view it cannot be = said=20 that, by these other steps, the Secretary of State has provided this = disabled=20 person with access to a service as close as it is reasonably possible = to get=20 to the standard normally offered to other prisoners: see Lunt = at=20 [58]-[59].
It must be accepted that the claimant = has, at=20 various points, disengaged. However, I am persuaded that this has been = only=20 partial and has usually had a good explanation. In my view it is not = fatal to=20 his claim. In particular, the claimant completed four one to one = sessions with=20 a specialist basic skills literacy teacher in 2004, then six more in = early=20 2005. He left education on 5^th May 2005, but there is no = prison=20 record giving his reason for leaving and he now gives the explanation = I set=20 out earlier. He achieved entry level one in key skills in 2006, but = ceased due=20 to reaching his limit and more specialist help being required in = helping him=20 with his dyslexia. One to one work stopped being available at HMP Long = Lartin,=20 and it appears the claimant stopped the toe by toe scheme when his = mentor went=20 to another establishment. However, the claimant expressed willingness = to=20 undertake courses. While he has disengaged at times, this seems to = have been=20 temporary, and appears to have been at least in part because he was = frustrated=20 at his lack of progress and not being offered suitable work. It is = significant=20 that what appears to be the only time he has been offered one to one = work with=20 a specialist tutor, for basic skills, he did engage. Any disengagement = has not=20 prevented the education being successful. The suggestion that any=20 disengagement would increase the claimant's risk is contradicted by = the risk=20 reduction he has achieved. In any event, the Secretary of State's = policy is=20 that low levels of motivation should not normally prevent an offender = being=20 assessed as suitable for offending behaviour work.
Finally, there is justification under = section=20 21D(4)-(5) to consider. At one point the Secretary of State raised the = spectre=20 of ruinous costs if adapted courses had to be offered to all prisoners = with=20 limited intellectual abilities. The answer to that is that this case = is=20 concerned with this claimant and the failure to take reasonable steps = in his=20 case. In oral argument the justification advanced was that even the = claimant=20 cannot say what an adapted course for him would look like. In my = judgment this=20 is no answer given the statutory tests for justification. Moreover, = the=20 Secretary of State's letter of 10 February 2010 reveals that steps in = this=20 regard are being taken.
In both written and oral argument the = claimant=20 focused on the duty to make adjustments. Almost as an afterthought it = was=20 contended that there was direct discrimination, as well, in the = Secretary of=20 State's decisions not to make available places on relevant offending = behaviour=20 courses. The decision meant less favourable treatment, it was said, in = that=20 they caused the claimant the detriment of far slower progress through = the=20 prison system. Comparable prisoners, who do not have the claimant's=20 disability, had places made available to them on all courses relevant = to their=20 risk factors, with a view to their being released at tariff expiry. = Given the=20 lack of detailed elucidation of these arguments I am reluctant to make = any=20 finding of direct discrimination. For similar reasons my view is that = the=20 submission about breach of the general duty under section 49A should = be put to=20 one side.

Public Law Duties
As a second ground the claimant = invokes that body=20 of public law establishing that the Secretary of State is under a duty = to=20 comply with his policies unless he has good and clear reasons for not = doing=20 so: Gransden & Co. Ltd. & anor v Secretary of State = for the=20 Environment & anor [1987] 54 P. & C. R. 86, 94. In = particular, it=20 was submitted, the Secretary of State was in breach of PSO 4700, in = not=20 prioritizing offending behaviour programmes for the claimant; PSO = 2855, in not=20 consulting specialist organizations or considering alternative = offending=20 behaviour work; PSI 2008/31, in not ensuring access to offending = behaviour=20 work or considering reasonable adjustments to existing programmes or = transfer;=20 and the May 2007 and May 2009 policy statements, in the assessment of = his=20 suitability for offending behaviour programmes.
The Secretary of State responds to = this that he=20 has throughout acted in accordance with his policies and the claimant = has been=20 given assistance and opportunities appropriate to his individual=20 circumstances. Moreover, it is said, the policies are not as definite = in their=20 language as the claimant would suggest. Thus PSO 4700, in relation to = short=20 term lifers, is addressed to ensuring that those with short tariffs = can=20 undertake offending behaviour programmes within a relatively short = period=20 rather than guaranteeing their availability to all prisoners.
In my judgment once offending = behaviour work=20 became, as Dr Bailey puts it, part of this claimant's sentence plan = target,=20 albeit prospective, certain of the Secretary of State's policies = applied. PSO=20 4700 provides that an essential element for short tariff lifers is = that they=20 "complete any assessment required". PSO 2855 is another example: as = quoted=20 earlier, it provides that where attendance at particular courses is = necessary=20 for the successful completion of a prisoner's sentence, reasonable = adjustments=20 must be made to allow prisoners with disabilities to participate. = Under PSI=20 31/2008 prisoners with disabilities must be able to follow their = sentence=20 plans and satisfy the conditions for parole. None of these policy = requirements=20 were fulfilled in the case of this claimant through enabling him to = access=20 some type of offending behaviour work. The Secretary of State has not = put=20 forward good and clear reasons for such breaches.

CONCLUSION
Offending behaviour programmes are = neither a=20 necessary nor sufficient condition for release from prison. There are = other=20 recognised pathways to reduce re-offending and to achieve release. Yet = offending behaviour work has been identified as an avenue to these = goals for=20 this claimant. The effect of the Secretary of State's decisions, as I = have=20 described them in this judgment, has been that the claimant has not = been able=20 to access any offending behaviour work. In my judgment steps should = have been=20 taken so that he could be provided with some type of offending = behaviour work=20 to give him the opportunity to demonstrate, eventually, his safety for = release. Other steps have been taken, and assistance provided, but = nothing=20 comparable to offending behaviour work. It is clear to me that this = failure=20 cannot be justified. In the circumstances of this claimant's case the=20 Secretary of State has unlawfully breached the statutory duty imposed = on him=20 to take steps so that his practices, policies and procedures do not=20 discriminate against this intellectually disabled prisoner.
A second string to the claimant's bow = was that in=20 his case the Secretary of State breached his public law duties, and = departed=20 from his policies without good reason, by failing to take steps = towards=20 providing the claimant with offending behaviour work. In my view, = given that=20 offending behaviour work became, in effect, part of his sentence plan, = even if=20 only prospective, this part of the claimant's case also succeeds.
Thus the claimant is entitled to a = declaration=20 that the Secretary of State has breached his duties towards him by = failing to=20 take steps to enable him to undertake some type of offending behaviour = work.=20 The claimant seeks a mandatory order that the Secretary of State = arrange for=20 an assessment of the claimant and a programme of steps to be taken = towards=20 providing him with suitable offending behaviour work. Given that the = Secretary=20 of State will act appropriately in the light of the declaration there = is no=20 need for such an order. In any event the recent letter of the = Secretary of=20 State indicates that these matters are in train, although at first = blush the=20 time scale there must be of some concern.

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England and Wales High Court (Administrative Court)=20 Decisions
You are here: BAILII=20 >> Databases=20 >> England and=20 Wales High Court (Administrative Court) Decisions >> = Gill, R (on=20 the application of) v Secretary of State for Justice [2010] EWHC = 364=20 (Admin) (26 February 2010) URL:=20 http://www.bailii.org/ew/cases/EWHC/Admin/2010/364.html = Cite=20 as: [2010] EWHC 364 (Admin)

		Royal Courts of = Justice Strand,=20 London, WC2A 2LL
		26/02/2010