This appeal concerned reasonable adjustments for those with mental illnesses detained under the Immigration Act. The Court of Appeal held that the Secretary of State had failed to make reasonable adjustments, such as arranging advocates to assist mentally ill detainees in making representations about decisions to detain them. The court said that as in employment cases, once the claimant has given some indication as to what adjustment the claimant alleges should have been made, it is for the public authority etc to show the adjustment is not reasonable.
2018, Court of Appeal. Judgment: www.bailii.org/ew/cases/EWCA/Civ/2018/57.html.
Facts
VC was a Nigerian national in the UK suffering from bipolar affective disorder with psychotic features. He was admitted to hospital on various occasions under the Mental Health Act 1983 (MHA). However this case related to periods when he was detained under the Immigration Act 1971 in an immigration removal centre. Also at various times he was removed from association with other detainees (segregation).
He made various claims but this page is limited to those under the Equality Act.
Held: The Secretary of State had failed to make reasonable adjustments under the Equality Act.
Court of Appeal judgment
Provision, criterion or practice (PCP)
The Court of Appeal said the first question was to identify the PCPs. The court spelt these out (from para 148 of the judgment). Broadly the PCPs were the system in place for giving the detainee reasons for detention or segregation and for the detainee to challenge them, coupled with the fact that no assistance was provided to mentally ill detainees in understanding the reasons and making representations.
Substantial disadvantage
Did the PCPs put disabled persons generally at a substantial disadvantage in comparison with non-disabled people?
In line with Paulley v FirstGroup (on wheelchair users) “disabled persons generally” refers to people disabled in the same way as the claimant rather than all disabled people, so here people with mental illness. The question was therefore whether, as a result of the PCPs, mentally ill detainees suffered unreasonably adverse experiences whilst in immigration detention compared to detainees who are not mentally ill (EqA s.20(3) with Sch 2 para 2(5), and Reasonable adjustments by service providers> Public functions: special rules on ‘substantial disadvantage’).
The answer was yes they did. The judge in the lower court had said he could readily envisage circumstances which would make it important that help is available to make representations on behalf of a detainee otherwise unrepresented, if he is mentally unwell enough to do so himself.
Reasonable to make adjustments?
Would it have been reasonable to make adjustments?
What reasonable adjustments?
The reasonable adjustment on which VC focused was the implementation of a system akin to that of independent mental capacity advocates (IMCAs) under the MHA. It was proposed that an advocate would assist mentally ill detainees in making representations in respect of decisions to detain them or to remove them from association. The Equality and Human Rights Commission (EHRC) emphasised the need for a process at a preliminary stage to assess the ability of mentally ill detainees to represent their own interests. An additional proposed adjustment was that the lawfulness of the detention of a mentally ill detainee be automatically reviewed in certain cases. (para 156)
Nature of reasonable adjustment duty
On the nature of the reasonable adjustment duty for public functions, the Court said:
“It is well established that the duty to make reasonable adjustments includes the duty to make anticipatory adjustments for a class of people, as well as the continuing duty to make adjustments in individual cases: see for example Lord Dyson MR in Finnigan v Chief Constable of Northumbria Police … at [32] ff. The Equality Act’s Statutory Code of Practice states (at §7.20) that ‘the duty is anticipatory in the sense that it requires consideration of, and action in relation to, barriers that impede people with one or more kinds of disability prior to an individual disabled person seeking to use the service, avail themselves of a function or participate in the activities of an association’. At §7.21 it states that ‘[s]ervice providers should therefore not wait until a disabled person wants to use a service that they provide before they give consideration to their duty to make reasonable adjustments. They should anticipate the requirements of disabled people and the adjustments that may have to be made for them …’.”
Shift in burden of proof
The burden was on the Secretary of State to show that she had complied with her duty to make reasonable adjustments, because VC had satisfied the requirements of Project Management Institute v Latif to shift the burden of proof to her. In particular, by the time the case was heard by the court, VC had outlined adjustments which could have been made
The Court of Appeal said para 38 of the Finnigan case required nothing more from claimants than “some indication as to the adjustments it is alleged should have been made”. The court therefore rejected the Secretary of State’s argument that VC should have identified a workable system of representation for the regular monthly detention reviews or for cases of segregation. (para 159)
On the shift in burden of proof for reasonable adjustments, including the Latif case, see further Reasonable adjustments by service providers>Burden of proof.
Secretary of State had failed to show adjustments would not be reasonable
The Secretary of State advanced four main reasons why she said it would not be reasonable for her to appoint a mental health advocate or other such figure for cases such as VC’s. The court rejected them all.
- As to cost, the Secretary of State submitted that “representation at the public expense cannot be provided on an anticipatory or continuing basis”. The court held that representation or assistance could be available on an anticipatory and a continuing basis, to be actually provided as and when required. “Although the cost of making an adjustment is clearly a relevant factor, there is no evidence that the Secretary of State has in this case made an assessment of cost and concluded that the proposed adjustment is unaffordable. A general assertion that the cost would be borne by the public, that is the taxpayer, does not discharge the burden of proof …”.
- The Court of Appeal also rejected the Secretary of State’s argument that the lower court was entitled to consider a “substantial trigger” was required before she was required to make reasonable adjustments by securing IMCA-type representation, and that this would only be a reasonable adjustment in the most serious of cases. The Court of Appeal said that while a threshold of some kind was needed, considering in each case whether a substantial trigger existed did not take into account the anticipatory nature of the duty under the Equality Act.
Since the Secretary of State had failed to discharge the burden of proof of showing it would not be reasonable to make adjustments, the outcome was that it would have been reasonable to make adjustments, and she was in breach of the reasonable adjustment duty.
Detriment
Both parties in the Finnigan case seem to have accepted that a person cannot claim unless they suffered a detriment from the failure to make reasonable adjustments. In the present case the claimant did not submit that the test was different. However the Court of Appeal accepted there was a detriment to him which would satisfy the Finnigan test, so he could claim. (para 174-175)
The Court of Appeal also commented that neither party had relied on the Supreme Court decision in Paulley v FirstGroup. The court said the Paulley case differed from the present appeal because the reasonable adjustments duty it considered was that of a service provider rather than a person exercising a public function. However the court said it saw no reason why the requirement as to detriment should apply differently to each of these categories. The Paulley decision had said the claimant need only establish that “had that adjustment been made, there is at least a real prospect that it would have made a difference”. This was a slightly less stringent formulation than that in the Finnigan case. (para 176-177)
Comment
Shift in burden of proof
As regards burden of proof (above), the decision adds welcome clarity to the short statement on this by the Court of Appeal in Finnigan. In particular, the court stresses that the claimant need not flesh out a proposed reasonable adjustment in too much detail before the burden of proof passes to the public authority etc to show the adjustment would not have been reasonable. See Reasonable adjustments by service providers>Burden of proof.
Detriment
I think the parties – like the parties in Finnigan – were probably wrong to go on the basis that the Equality Act requires a claimant for reasonable adjustments in respect of public functions to have suffered a detriment. See Detriment to claimant in anticipatory reasonable adjustment claims>Different test for public functions at Step 2?
Also even for service providers as opposed to public functions, the statutory basis (if there is one) for the Supreme Court’s “real prospect” test in Paulley is far from clear: Detriment to claimant in anticipatory reasonable adjustment claims>”Real prospect” test. Paulley was a case on service providers rather than public functions.
