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Victory in prisoner disability discrimination case forces Prison Service rethink on disability issues

Sean Humber, a partner in the human rights department at law firm Leigh Day, has secured an important victory which has implications for disabled prisoners.

Posted on 28 January 2008

In a case with wider significance for the treatment of disabled prisoners in prisons in England and Wales, the Secretary of State for Justice, acting on behalf of the Prison Service, agreed to allocate a disabled prisoner to a disabled cell, to allow him to use a motorised wheelchair and to review and amend its policies relating to disabled prisoners in order to ensure compliance with the requirements of the Disability Discrimination Act. The Secretary of State for Justice also agreed to pay all of the legal costs incurred by the prisoner in bringing the challenge.

We represent Mr X in a judicial review challenge of the Secretary of State for Justice, in relation to the Prison Service’s continuing failure to allocate Mr X to a disabled cell or to allow him to use a motorised wheelchair in the prison.

Mr X suffers from long-standing and serious health problems. He has suffered two strokes which have caused a weakness and loss of sensation down the right hand side of his body, has primary progressive multiple sclerosis, severe sight impairment, angina, chronic pain problems, asthma, epilepsy, gastro-intestinal problems, memory and concentration problems and depression.

Before his imprisonment in July 2006, Mr X’s wife provided him with full-time care. The Social Services Department of his local authority arranged for a large number of adaptations to be made to the family home, including fitting a lift, walk-in shower/bathroom, grab rails, widening the doors and building ramps to the front and back doors.

Previously Mr X was also assessed as requiring, and provided with, a motorised wheelchair as the weakness and loss of sensation that he suffered down the right hand side of his body made it extremely difficult and tiring for him to propel himself using a manual wheelchair.

However, following his imprisonment in July 2006, Mr X was not allocated a disabled cell. Instead, he was initially allocated to a standard cell and then more recently to a bed in the prison’s hospital wing, where he is required to share a bay with three extremely ill fellow prisoners. This was despite him being assessed as requiring a disabled cell within 24 hours of arriving at prison. The Prison Service’s own guidance recognises that it is undesirable for inmates to simply be located in a prison’s hospital wing simply because of his or her disability.

The prison also refused to allow him a motorised wheelchair for “security reasons” although no further explanation has been given. He is only allowed a manual wheelchair which he finds difficult and tiring to use. As a result he finds it difficult to travel anything other than short distances around the prison and is therefore unable to access many of the facilities of the prison.

After first being instructed by Mr X in early 2007, we entered into protracted, but ultimately fruitless, correspondence with the prison in order to try and resolve the matters.

We issued judicial review proceedings in July 2007 against the Secretary of State for Justice, claiming that the prison’s treatment and care of Mr X breached his human rights and amounted to unlawful disability discrimination. Specifically, it is argued that his treatment and care are contrary to Article 3 (prohibition of inhuman and degrading treatment), Article 8 (right to respect for private and family life) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights.

It was also argued that his treatment and care are contrary to the requirements of the Disability Discrimination Act 1995 in that the prison is discriminating against Mr X in its provision of goods, facilities and services. Mr X is being treated less favourably for reasons related to his disability with the prison failing to make reasonable adjustments.

In addition, it was also being argued that the Secretary of State for Justice / Prison Service is in breach of the general disability duty, introduced by the Disability Discrimination Act 2005, which requires public bodies to establish practices that actively embrace the diverse needs of disabled people by having due regard to the need to eliminate discrimination and harassment, to promote equality of opportunity, to promote positive attitudes towards disabled people, to encourage participation by disabled people in public life and to take steps to meet disabled peoples’ needs, even if this requires more favourable treatment.

Finally, it was argued that the Secretary of State for Justice/Prison Service’s failure to produce an adequate Disability Equality Scheme, a further requirement introduced by the Disability Discrimination Act 2005, setting out how it intends to fulfil its duties as evidence of this failure.

The Secretary of State for Justice applied to the Court for the legal challenge to be stayed until they arranged for a further assessment of Mr X. This was rejected by the Court.

Instead, in August 2007, a judge in the Administrative Court granted Mr X permission to apply for judicial review stating that he considered that Mr X’s case was “arguable”. The Judge also stated that they considered that the matter should be listed for hearing as a matter of urgency. The matter was then listed for a fully one-day hearing on 25th January 2008.

The Equality and Human Rights Commission (EHRC), previously the Disability Rights Commission, then intervened in this case in support of Mr X.

On 24th January 2008, less then a day before the hearing, the Prison Service finally moved Mr X to a disabled cell. They also accepted that Mr X required a motorised wheelchair and agreed to provide him with one.

Shortly before the hearing, the Secretary of State for Justice also accepted that the Prison Service’s existing policies for dealing with disabled prisoners “do not appear to have worked” in Mr X’s case.

The Secretary of State then also confirmed that the Prison Service’s existing policies, including Prison Service Order 2855 (prisoners with disabilities) and PSO 0900 (categorisation and allocation of prisoners) were now being amended and new versions would be published shortly in order that “explicit consideration is made of disability issues and to the DED [disability equality duties] under the DDA”.

Finally, the Secretary of State confirmed that the Ministry of Justice was drafting a Disability Equality Scheme (DES), with a section that covered prisoners, and that this would be published shortly.

The Secretary of State for Justice’s agreement to take all of these steps was then set out in a formal Court Order. In light of this we have agreed to adjourn the case until the Summer in order to confirm that the agreed actions have actually been taken.

During the course of the case, Mr X was in receipt of public funding ("legal aid"). Mr X is grateful for the vital support of the Legal Services Commission in this matter.

For more information please contact Sean Humber or Benjamin Burrows on 020 7650 1200.

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