England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/03/2016

Sir Stephen Silber:

Introduction

1. Michelle Hopkins ("the claimant") challenges a decision made on 16 February 2015 to cease to allow her to share a cell with her erstwhile civil partner ("the Interested Party") when both women were prisoners at HMP Bronzefield ("the Prison") which is a "private" prison run by the First Defendant. The decision was made by the Prison, pursuant to its "Decency/Managing Relationships Policy" ("the Policy") and in the particular its provision ("the intimate relationship restriction") which provided that:

"It is not accepted that women within in an intimate relationship are to share a cell."

2. The Claimant's counsel, Mr. Hugh Southey QC, contends that the intimate relationship restriction is unlawful because it is inflexible and also because it should have been made, but was not made, in a statutory instrument.
3. Another aspect of the Claimant's case is that the decision not to allow her to share a cell with the Interested Party has also infringed her rights under Articles 3 and 8 of the ECHR as well as constituting a breach of the Equality Act 2010 ("the 2010 Act") as the Claimant was a "disabled person" within the meaning of that Act.
4. All the claims are denied by the First Defendant and this stance is supported by the Second Defendant, who has responsibilities for prisons. Their case is that:

a) The First Defendant had statutory authority to issue the Policy (including the intimate relationship restriction) and it was entitled to operate the Policy as it sought to achieve an underlying statutory aim of maintaining good order and discipline in prisons;

b) The decision to move the Interested Party out of the Claimant's cell meant that the Interested Party was placed in a neighbouring cell to the Claimant so that the Claimant and the Interested Party were able to provide care for each other during the day when they (like other prisoners) were not locked in their cells;

c) There has been no violation of the Claimant's rights under Article 3 and/or 8 of the ECHR even if those rights were engaged; and that

d) The Claimant is not a "disabled person" within the meaning of the 2010 Act and even if she was, sections 20 and 149 of that Act have not been contravened.

5. Mr. Charles George QC, sitting as a Deputy High Court Judge, granted permission. There has been some doubt as to whether he granted permission for the 2010 Act claim and I therefore grant permission to pursue this claim.

The Factual Background

6. The Claimant entered into a relationship with the Interested Party in June 2010 and they started to live together in October 2010 before entering into a civil partnership in June 2013.
7. In January 2012, the Claimant was initially paralysed from the waist down, in circumstances which were unknown, but she did regain feeling in her lower body. She has experienced severe pain in her middle and lower back for which she was prescribed strong painkillers. The Claimant and the Interested Party both suffer from mental health problems.
8. Both the Claimant and the Interested Party were sentenced on the same indictment to prison sentences for child cruelty. The Claimant was sentenced to concurrent sentences of 18 months and 13 months, while the Interested Party received concurrent sentences of 18 months and 20 months. They both commenced their sentences in the Prison on 6 November 2014. Both the Claimant and the Interested Party have now been released from prison.
9. Before entering prison, the Claimant's care needs had, according to her, been met by the Interested Party who would help the Claimant to bathe and dress. On occasions, the Interested Party would be required to help the Claimant to get in and out of bed, while the Claimant would provide emotional support for the Interested Party.
10. When the Claimant and the Interested Party started to serve their sentences at the Prison, they were permitted to share a cell together, but on the condition that they did not engage in sexual acts. It was not suggested at the hearing that they had broken this condition. A time came when members of the staff at the Prison became concerned that both the Claimant and the Interested Party were partners acting as carers for each other. Ms Joanne Desforges, who is Head of Residence at the Prison, has explained that she did not want to separate the Claimant and the Interested Party immediately as she wanted to ensure that the care needs of both residents were considered before they were separated, as this was to her knowledge the first time when two women advised that they were carers for each other. She therefore arranged a multi-disciplinary meeting between members of the staff at the Prison to discuss how the medical and care needs of the Claimant and the Interested Party could be met. At that meeting, attended by five people, it was decided that Dr. Albrecht, the Primary Care Nursing Manager at the Prison, would consult the GP for the Claimant. At another multi-disciplinary meeting about a week later, it was reported that the Claimant did not need a carer, i.e. someone to be specifically allotted to assist her. At this meeting, it was then decided to separate the Claimant and the Interested Party into different cells on the same wing and that the Claimant should be admitted into Healthcare to be assessed further.
11. The couple were separated on 16 February 2015 after a prison officer had informed the couple that the Interested Party was required to move to another cell. The decision was made to separate the Claimant and her partner in light of the intimate relationship restriction. It is that decision which is the subject of the present application. The Interested Party was then moved to a nearby cell where she remained.
12. In common with other prisoners, the Claimant and the Interested Party were locked in their respective cells in the usual hours when prisoners were locked up, which were between 6.45pm and 8am four days every week and between 5.15pm and 8am on the other three days. She was also locked up between 12:30pm and 2pm. This, according to the Claimant, caused severe problems.
13. On 24 February 2015, the Claimant was offered an admission to the Healthcare Centre for assessment and this offer was the result of the decision of the multi-disciplinary meeting to which I have referred. She refused this offer as she was concerned that it might result in her being returned to a different wing from the Interested Party and that her contact with the Interested Party would be substantially reduced.
14. The Claimant instructed the Prisoners' Advice Service to make representations on her behalf concerning the decision to prevent the Interested Party sharing with her. On 10 March 2015, Ms. Joanne Desforges wrote in response to the letter from the Prisoners' Advice Service explaining that women in a relationship who wish to be allocated to the same wing can make an application to do so, and explained that she had granted an application by the Claimant and the Interested Party to do so. The letter stated that this application had been granted.
15. It is not part of the case of the Defendants that the Claimant and the Interested Party had failed to comply with the obligation to behave in an acceptable manner after they were placed in separate adjoining cells. The Claimant then had the benefit of care from the Interested Party when she was not locked in her cell.
16. The Claimant and the Interested Party have now been released from prison and they have now separated. The Interested Party has played no part in the proceedings and was neither present nor represented at the hearing.
17. I should point out that it is not in dispute that the First Defendant is a separate entity and that the director of a private prison is responsible for the day to day administration of the prison: Criminal Justice Act 1991 s85. It is also accepted that the First Defendant is a public authority for the purposes of s6 Human Rights Act 1998.
18. In addition, it is common ground between the parties (as reflected in a written list of issues prepared by me and agreed by Counsel with minor amendments) that because the crucial decision requiring the Interested Party not to remain in the Claimant's cell was taken on 16 February 2015, there is no need to consider Prison Service Instructions ("PSIs") issued by the Second Defendant after that date such as PSI 15/2015 and PSI 17/2015 because they came into force on 1 April 2015 and no oral submissions were then made on them.
19. No separate relief is claimed against the Secretary of State and through his counsel he has supported the stance of the administration of the First Defendant, although he is unhappy with the initial decision of the First Defendant to allow the Claimant and the Interested Party to share until 16 February 2015. Indeed, it must be assumed in this judgment that all submissions made on behalf of the First Defendant by its counsel, Mr. Jamas Hodivala, are supported by Mr. Tom Weisselberg QC, counsel on behalf of the Secretary of State, who also made further submissions.

The Issues

20. As I have explained, the Defendants rely on the Policy, and in particular on the intimate relationship restriction, to justify refusing to allow the Claimant and the Interested Party to share a cell. Mr. Southey contends that the First Defendant should not be permitted to rely on these matters for two reasons.
21. First, he contends that the Policy and the intimate relationship restriction must be applied flexibly to take account of the particular circumstances of individual cases (British Oxygen Company Limited v Ministry of Technology [1971] AC 610, 625), but he complains that in this case there was no consideration of the particular circumstances of the Claimant as in the words of the Policy, "it is not accepted that women within an intimate relationship are to share a cell". Mr. Southey says that this, and in particular the intimate relationship restriction, was a blanket policy which could not be relied on by the First Defendant without consideration of the particular circumstances of the Claimant, but that this did not occur. The Defendants disagree and they contend that it can be relied on because if the First Defendant permitted exceptions, this would undermine an important statutory policy, which undermines a relevant power.
22. The second reason why the Claimant contends that the Policy, and in particular the intimate relationship restriction, cannot be relied on as to be enforceable, is because the effect of the combined provisions of sections 47(1) and 52(1) of the Prison Act 1952 ("the 1952 Act") requires these matters to be contained in a statutory instrument but this was not done. So it is said that the Policy and, in particular, the intimate relationship restriction cannot be relied on.
23. Another claim of the Claimant is that her rights under Article 3 have been infringed. The response of the Defendants is that the First Defendant was entitled to stop the Claimant and the Interested Party sharing a cell, but that in any event the case of the Claimant does not reach the threshold for engaging Article 3 or establishing a breach of it.
24. The Claimant also contends that the First Defendant infringed the Claimant's Article 8 rights by the decision of 16 February 2015 preventing her from sharing a cell with the Interested Party. The case for the First Defendant is that this decision did not engage Article 8, and that in any event if that is wrong, the Claimant's Article 8 rights were not infringed. Reliance is also placed on Article 8 (2).
25. The final claim of the Claimant is that she suffered from a "disability" within the meaning of the 2010 Act and the failure of the First Defendant to permit the Interested Party to share with the Claimant amounts to a failure to (a) make adjustments required by section 10 and/or (b) comply with section 149(1). The Defendants deny that the Claimant was a "disabled person" and/or that those duties were not complied with.
26. Thus the issues to be considered are:

i) Was the intimate relationship restriction enforceable notwithstanding that it did not comply with the provisions of section s47(1) and 52(1) of the 1952 Act requiring it to be contained in a statutory instrument? (Issue 1– The 1952 Act Issue);

ii) Was the intimate relationship restriction unenforceable because of its rigid and inflexible nature and because of the alleged failure of the Prison to consider the Claimant's individual circumstances? (Issue 2 – The Inflexible Nature Issue);

iii) Had the Claimant's Article 3 rights been engaged and infringed by the decision of 16 February 2015 preventing the Claimant from sharing a cell with the Interested Party with whom she was in an intimate relationship? (Issue 3 – The Article 3 Issue)

iv) Had the Claimant's Article 8 rights been engaged and infringed by the decision of 16 February 2015 preventing the Claimant from sharing a cell with the Interested Party with whom she was in an intimate relationship? (Issue 4 – The Article 8 Issue);

v) If the Claimant's Article 8 rights had been infringed by the decision of 16 February 2015, can reliance be placed on Article 8(2) to establish that there is no interference with the Claimant's Article 8 rights as the decision of 16 February 2015 was made "in accordance with the law and is necessary in a democratic society in the interests of … public safety...for the prevention of disorder, for the protection of health and morals or for the protection of the rights and freedoms of others"? (Issue 5 – The Article 8(2) Issue);

vi) Did the Claimant suffer from a disability within the meaning of s6 of the 2010 Act on 16 February 2015 in the light of the Occupational Therapy report and the medical evidence? (Issue 6 – The Claimant Disabled Issue);

vii) If the Claimant suffered from a disability within the meaning of section 6 of the 2010 Act on 16 February 2015, did the failure of the First Defendant to permit the Interested Party to share with the Claimant amount to a failure to (a) make adjustments required by section 20 and/or (b) comply with section 149(1) and if so why? (Issue 7 – The Breach of the 2010 Act Issue);

Issue 1 – The 1952 Act Issue

27. The case for the Claimant is that the Policy and, in particular, the intimate relationship restriction is not enforceable because it does not comply with the provisions of sections 47(1) and 52(1) of the 1952 Act. Section 47 (1) of the 1952 Act provides insofar as is relevant that:

"The Secretary of State may make rules for the regulation and management of prisons…and for the classification, treatment, employment, discipline and control of persons required to be detained therein."

28. Section 52(1) of the 1952 Act provides insofar as is relevant that:

"(1) Any power of the Secretary of State to make rules …under this Act shall be exercisable by statutory instrument."

29. Mr. Southey contends that the Policy and in particular the intimate relationship restriction should have been made by statutory instrument as it relates to the "treatment… discipline and control of persons required to be detained". His case is that as there has been no statutory instrument made containing those provisions, the Defendants cannot then rely on it in the light of the decision of the Supreme Court in R (Alvi) v Secretary of State [2012] 1 WLR 2208.
30. In that case, it was decided that the Immigration Act 1971 required Immigration Rules to be laid before Parliament and so the Secretary of State could not rely on material which ought to have been contained in the Immigration Rules and laid before Parliament, but which had not been laid before Parliament. Mr. Southey says that the reasoning in Alvi means that the First Defendant was not entitled to rely on the intimate relationship restriction in order to prevent the Claimant and the Interested Party from sharing a cell.
31. I doubt if the intimate relationship restriction required Parliamentary approval any more than a rule in the Prison that nobody was allowed into some areas. In any event, the case for the Defendants is that the intimate relationship restriction is lawful as Rule 6 (1) of the Prison Rules 1999, which was expressed to be made under section 47 of the 1952 Act, provided that:

"Order and Discipline shall be maintained with fairness, but with no more restriction than is required for safe custody and well ordered community life."

32. So the case for the Defendants is that the intimate relationship restriction was required for "order and discipline" in the Prison. This point is fortified by the evidence of Mr. Chris Barnett-Page, the Head of Safer Custody Casework at the National Offender Management Service ("NOMS") who explains why the intimate relationship restriction is, and has been, necessary for good order and discipline in a prison.
33. His evidence is that NOMS continues to take the view that two prisoners who are known to be in an intimate relationship should not share a cell because he explains that allowing intimate partners to share a cell (even if they agree to respect the rule that sexual activity is not permitted) would give the impression that the prison was condoning sexual activity. I can understand this concern and that if sharing was allowed, his further concern that the prisoners concerned would be seen to be receiving more favourable treatment than prisoners who are unable to maintain their sexual relationships while in prison and that in consequence, they might react unfavourably.
34. Mr. Barnett-Page says that it would not be appropriate for prisons to condone sexual activity between prisoners partly because it is and would be extremely difficult for prisons to assess whether such activity is truly voluntary or whether there is a degree of coercion involved.
35. He explains that attempting to do so would be resource-intensive and that it would require very intrusive inquiries, and so it would not be considered appropriate to embark on such inquiries.
36. There is also similar evidence from Ms. Joanne Desforges, the Head of Residence at the Prison, who explains for similar reasons why it has the intimate relationship restriction. I regard these concerns as sensible and realistic and in any event they are entitled to deference as they have specialist knowledge of these kinds of Prison issues.
37. To my mind, these concerns justify the intimate relationship restriction being required for "order and discipline" in the Prison. So I reject the submission of Mr. Southey.

Issue 2 – The Inflexible Nature Issue

38. Mr. Southey contends that policies such as the intimate relationship restriction must be applied flexibly to take account of the particular circumstances of individual cases ...British Oxygen Company Limited v Ministry of Technology [1971] AC 610, 625). His complaint is that in this case, there was no consideration of the particular circumstances of the Claimant's case as it was a blanket policy of the First Defendant without any need or obligation on its part to consider the individual circumstances of the person concerned. So Mr. Southey submits that it could not be relied on by the First Defendant without consideration of the particular circumstances of the Claimant.
39. He contends that there was good reason for the policy to be applied flexibly as the Care Act 2014 ("the 2014 Act") shows that Parliament intended to ensure that people should be permitted to make their own arrangements for care which according to Mr. Southey shows the importance to be attached to personal autonomy. So he says that prisoners should be able to care for each other if the prisoners concerned are happy with that arrangement. In this case, as I have explained in paragraph 10 above, there was consideration of the specific care needs of Claimant before the decision was made to move the Interested Party out of the Claimant's cell; in particular the Claimant's GP was consulted to decide if the Claimant needed a carer, namely somebody specifically allotted to assist her and, after a negative answer was obtained, the decision was made to move the Interested Party out of the Claimant's cell. So the intimate relationship restriction was applied flexibly
40. Mr. Hodivala explains that, in any event, it is settled law that there is nothing unlawful about a body implementing an inflexible policy where to permit exceptions would undermine an important statutory policy which undermines a relevant power: R (Nicholds and others) v Security Industry Authority [2007] 1 WLR 2067 at paragraph 40 per Mr. Kenneth Parker QC (as he then was) sitting as a Deputy High Court Judge. Mr. Hodivala stresses that the intimate relationship restriction was introduced as part of the First Defendant's obligation to maintain good order and discipline which entitled it to lawfully operate an inflexible policy.
41. The issue is therefore whether the First Defendant was entitled to operate an inflexible policy. In the Nicholds's case there were licensing criteria published by the Security Industry Authority for those who wished to engage in the occupation of door supervisors pursuant to a requirement in the Private Security Act 2001. The criteria made the commission of certain serious criminal offences an absolute bar to obtaining a licence to work as a door supervisor and it was for that reason in that case that the claimants did not qualify. The claimants in that case challenged the criteria on a number of grounds including that they violated the non-fettering principle because they prevented the Authority considering the individual circumstances of particular applicants, such as the claimants.
42. Mr. Kenneth Parker QC rejected this submission and the additional submission that the "no fettering" principle applies invariably wherever a discretionary power is conferred, whatever the statutory context. He referred (at [61]) to the fact that Lord Reid in British Oxygen Co. Ltd v Minister of Technology [1971] AC 610, at 625, described the principle as "the general rule". He then stated that:

"In most instances where a discretionary power is conferred it would be wrong for the decision maker to frame a rule in absolute terms because to do so would defeat the statutory purpose. However, it seems to me that there are certain exceptional statutory contexts "where a policy may lawfully exclude exceptions to the rule because to allow exceptions would substantially undermine an important legislative aim which underpins the grant of discretionary power to the authority." (Emphasis in original)

43. He concluded (at [62]) that in that case the statutory context empowered the Authority to make the commission of certain serious criminal offences an absolute bar to obtaining a licence to work as a door supervisor. Not to have such a rule in respect of offences of such great gravity would tend to undermine a fundamental aim of the Act, and such a failure would be truly vulnerable to challenge on grounds both of ultra vires and Wednesbury irrationality.
44. This reasoning was approved and followed more recently in R (Sayaniya) v Upper Tribunal (Immigration and Asylum Chamber) and another [2016] EWCA Civ 85 when the Court of Appeal rejected the argument that paragraph 322(1A) of the Immigration Rules could not be enforced because it was expressed in mandatory terms and because it unlawfully fettered the broad discretion conferred on the Secretary of State. Reliance was placed on the reasoning in Nicholds's case which was expressly approved by Beatson LJ who gave the only reasoned judgment.
45. In my view, similar reasoning to that adopted in the cases of Nicholds and of Sayaniya applies to the present case because to grant an exception to the intimate relationship restriction would undermine not only the statutory policy of maintaining "order and discipline in prisons" as explained in paragraph 31 to 36 above but also the clear policy that those in intimate relationships should not share cells for the reasons set out in those paragraphs.
46. In those circumstances, I am unable to accept Mr. Southey's submissions on this issue.

Issue 3 – Article 3

47. Article 3 provides that "no one shall be subjected to torture or to inhuman or degrading treatment or punishment".
48. The Claimant's case is not that she is being subjected to torture or to inhuman treatment, but that the conditions of her treatment after 16 February 2015 amount to "degrading treatment", which is alleged to be the effect of inadequate provisions for the Claimant's health need, which required her to use the toilet at night unaided which caused her "great pain" and that sitting in her wheelchair for long periods increased the pain that she felt.
49. Mr. Southey contends that the threshold that must be reached for there to be a violation of a vulnerable prisoner's Article 3 rights is relatively low. He relies on the statements of the Strasbourg Court in Kalashnikov v Russia [2003] 36 EHRR 34 relating to Article 3 that:

"95… Nevertheless, under this provision the State must ensure that a person detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding that unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured."

50. The Claimant's case is that she suffered highly distressing treatment which would be far more distressing than that which a prisoner would normally experience and that it could have been avoided if the Interested Party had been allowed to share the Claimant's cell as the Claimant would then have been provided with the care which she had previously received in the community. Instead, no alternative adequate system of caring had been provided after the Interested Party was required by the First Defendant to move out of the Claimant's cell.
51. Mr. Southey seeks to rely on similarities between the Claimant's case and the case of Price v United Kingdom (2002) 34 EHRR 53 in which it was held that there had been a violation of Article 3 when a prisoner in a wheelchair, who had lost all four of her limbs, was assisted by a male officer when using the toilet facilities and was also required to sleep overnight in her wheelchair as her bed was so hard that to have slept there would have caused pain in her hips.
52. The relevant similarity between that case and the present case is said to be that the Claimant was also only able to access the toilet with difficulty. Mr. Southey relies on the statement in the judgment in Price's case that :

"30. However, the Court considers that to detain a severely disabled person in conditions where she is dangerously cold, risks developing sores because her bed is too hard or unreachable, and is unable to go to the toilet or keep clean without the greatest of difficulty, constitutes degrading treatment contrary to Article 3 of the Convention."

53. Mr. Southey contends that Price's case shows the importance attached to access to the toilets and when that situation is combined with the lack of adequate assessment of the impact to the Claimant of separation from the Interested Party, the Claimant has a good claim for the infringement of her Article 3 rights.
54. In response, the Defendants submit that the Claimant's case does not show a violation of her Article 3 rights and emphasis is placed on the obvious differences between this case and that of Price. Mr. Hodivala points out that the Claimant does not contend that she is being subjected to torture or inhuman treatment but instead submits that she has been subjected to degrading treatment as there was inadequate provision for the Claimant's health needs. The basis of that allegation according to the Claimant's Grounds as amended shortly before the hearing are principally that, first that "the Claimant and her partner are unable to care for each other in the manner that was possible in the community", second that "no adequate alternative form of care has been provided", and third that "the Claimant is only able to access the toilet with difficulty".
55. The Defendants submit that the applicable principles for determining if there has been a breach of Article 3 are that:

i) The Claimant has the burden of showing that she has suffered the ill-treatment she alleges and that it amounts to a violation of Article 3 (per Hickinbottom J in Grant and Gleaves v The Ministry of Justice [2011] EWHC 3379 QB [73];

ii) The burden of proof will be on the balance of probabilities per Hickinbottom J in Grant and Gleaves v The Ministry of Justice (supra) [77];

iii) For treatment to amount to a breach of Article 3, it "requires a "minimum level of seriousness" (Gorodnichev v Russia (2007) Application No 52058/99 [100]) or a "minimum level of severity" (see, e.g., Pretty v United Kingdom (2002) 35 EHRR 1 [52]);

iv) "A high level of suffering is usually needed which has been described as "intense suffering…" (Iochev v Bulgaria (2006) Application No. 41211/98[133],"serous suffering..." per Lord Bingham in R (Limbuela) v Secretary of State for Home Department [2005] AC [8]. The court has asked in other cases whether the treatment "adversely affected his or her personality in a manner compatible with Article 3" Kalashnikov v Russia (supra [95]);

v) In Selmouni v France (1999) 29 EHRR 403 [100] it was observed the assessment of the minimum level of severity "… depends on all the circumstances of the case such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age a state of health of the victim etc.";

vi) In considering whether the treatment is 'degrading' within the meaning of Article 3, one of the factors which the Court will take into account is the question whether its object was to humiliate and debase the person concerned, although the absence of such a purpose cannot conclusively rule out a finding of a violation of Article 3 (see Peers v Greece, no 28524/95 [67]-[68] and [74]); Price v United Kingdom (2002) 34 EHRR53 [24]; and that

vii) The Strasbourg cases consistently adopt the following approach in prison cases. Where treatment or conditions in prison generate more humiliation, distress or other suffering than is inherent in a prison sentence, in order to prove a violation of Article 3, it is necessary for a complainant to show that, in all of the circumstances, the treatment or conditions satisfy the minimum severity test. That test has a high threshold; although the fact that the complainant is vulnerable because in state detention will often be a significant factor so that, even if treatment would not be humiliating if endured outside prison, it may well be found to be humiliating and degrading if suffered in a prison context", per Hickinbottom J in Grant and Gleaves v The Ministry of Justice (supra) [46].

56. There were a number of significant steps which the Prison took to ascertain whether the Claimant needed a carer and the services which she required on account of her physical limitation, such as that:

i) The First Defendant commissioned an Occupational Therapy Report on the Claimant which was prepared on 7 January 2015 and it stated that she had some difficulty with using the toilet, but that she was able to transfer independently from her chair on to the toilet. It did not state that the Interested Party was the only person who could help the Claimant.

ii) The Report recommended (a) the installation of a plastic fluted grab rail and so was not installed as standard; (b) the provision of a chair with arms and (c) a GP referral for a physiotherapy review of mobility and balance. As to (a), this was not installed as it was not considered it appropriate to do so as it created ligature points and the Claimant had threatened to commit suicide if she was not allowed to share a cell with the Interested Party, who suffered from mental illness. The chair specified in (b) was provided. As to (c), the Claimant was referred to an Orthopaedic Surgeon who works alongside a Physiotherapist to assess patients and make appropriate referrals to each other in the light of those assessments. As a result of this referral, the Claimant had two appointments with a consultant spinal surgeon and an MRI scan as well as being referred to a pain clinic.

iii) The Claimant was offered a reassessment of her needs in the Healthcare Wing at the First Defendant as she considered that the Occupational Therapy Report had not assessed her overnight needs but she refused to attend.

iv) As I have explained, there was a multi-disciplinary meeting between members of the staff at the First Defendant prior to 16 February 2015 to discuss the situation in which the Claimant was claiming that she need to have a carer who had to be the Interested Party and it was decided to consult the GP for the Claimant.

v) The Claimant's GP reported to the First Defendant that the Claimant did not need a carer and the decision was then taken at a multi-disciplinary meeting to move the Interested Party from the Claimant's cell.

vi) For the entire period of the Claimant's incarceration with the exception of a period of five days in December 2014 housed in a disabled cell, which was adapted to meet the needs of disabled prisoners as it had a widened door to facilitate wheelchair access and was larger than an ordinary cell so as to allow movement around the cell in a wheelchair.

vii) Ms. M.T. Mangwiro, the Primary Care Nurse Manager at the First Defendant, stated that she met with the Claimant on 24 February 2015 who said that she was not coping at that time at night. Ms. Mangwiro said that she told the Claimant that she could arrange for her to be admitted to Healthcare so that her night time needs could be assessed, but the Claimant refused this offer.

viii) The First Defendant could not require or compel the Claimant to undertake such an assessment.

ix) At no stage has the Claimant suggested what further steps the First Defendant should take or have taken to assess what overnight care, if any, she needed.

57. This evidence shows that the First Defendant was trying to adequately consider and to improve the health and well being of the Claimant as well as showing that there was no intention to humiliate the Claimant or to do anything which would engage Article 3 or infringe the Claimant's Article 3 rights. Indeed this evidence shows that the Claimant was not suffering in any way which would engage or infringe those rights. This conclusion is supported by the medical notes from the prison adduced by the Claimant and which Mr. Hodivala sums up in this way:

a) 20 January 2015: The Claimant disclosed to medical staff that she had obtained the wheelchair herself. Minor disc degeneration was identified in 2012. The doctor records "It appears unusual to decide to use a wheelchair for this diagnosis";

b) 9 February 2015: there was no sign of the Claimant being in pain upon examination;

c) 16 February 2015: the Claimant stated to medical staff that "she is paranoid that her wife is seeing another prisoner behind her back";

d) 19 February 2015: the Claimant complained to medical staff that she has a condition that required 24hr care as it prevents her turning during the night. She did not say what this condition was;

e) 24 February 2015: the Claimant stated to medical staff that she is having problems at night, namely "weakness of her left side and migraine headaches therefore will require assistance at night." This is contrary to the Social Care Report [2/56/502] (prepared on 3 July 2015), which records that there had been no such migraine episodes: "She is also quite fearful of getting 'hemiplegic migraines' from which she can be affected – there has not been an episode of this during her time in First Defendant";

f) 25 February 2015: contact made with the Claimant's GP who confirmed the Claimant had bought herself a wheelchair. Concerns were recorded by the doctor at HMP Bronzefield that the Claimant may be malingering;

g) 30 March 2015: the Claimant was observed to stand unaided from her wheelchair, step onto the scales, stand until a reading was obtained and then step back down again before sitting back in her wheelchair and wheeling herself out of the room.

58. Indeed this consideration of the Claimant's needs undermines the case that her Article 3 rights were engaged and infringed. A witness statement was prepared by Mr. Gillman Smith, who is a social worker with apparently no medical qualification, and who interviewed the Claimant on the phone on 23 November 2015. I cannot attach any weight to his opinions in the light of his apparent lack of medical qualification and the fact that he had not actually observed the Claimant. He did report what the Claimant stated about how she was managing including that:

a) although it would have been easier for her if there had been a grab rail as suggested in the Occupational Therapy Report after the Interested Party ceased to share her cell, the Claimant was nevertheless still able to transfer herself to the toilet without any falls or injuries even though there is no grab rail;

b) she generally did not need assistance with her toileting needs unless she was having "a particularly bad day";

c) she was ordinarily able to lower and stand from the toilet seat and attend to her personal care needs having been to the toilet; and that;

d) she was able to wash herself and that she would sit on the toilet to wash her lower half.

59. It is of critical importance to bear in mind that the Claimant and the interested Party were serving prisoners. Lord Bingham of Cornhill explained in a speech with which other members of the Appellate Committee agreed in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 at 537 G-H (with emphasis added) that:

"5. Any custodial order inevitably curtails the enjoyment, by the person confined, of rights enjoyed by other citizens. He cannot move freely and choose his associates as they are entitled to do. It is indeed an important objective of such an order to curtail such rights, whether to punish him or to protect other members of the public or both. But the order does not wholly deprive the person confined of all rights enjoyed by other citizens…"

60. That shows that a prisoner like the Claimant does not have the rights of ordinary citizens to choose in whose company they can sleep because any custodial order inevitably curtails the right to enjoy many features of life outside prison. In the light of it I have reached the conclusion that the Claimant has not suffered the ill treatment that she alleges, and in any event it does not reach the "minimum level of seriousness" as to constitute an engagement with or a breach of Article 3. What is important in an Article 3 claim is whether the threshold for a successful claim has been reached. For the reasons which I have sought to explain, the present claim fails to reach that threshold by a substantial margin.

Issue 4 – Article 8

(i) The Issues

61. The case for the Claimant is not that she has an unqualified right under Article 8 or otherwise to share a cell with her civil partner, the Interested Party, as such contentions would be contrary to the decision of the Court of Appeal in R (Bright and another) v Secretary of State [2015] 1 WLR 723. Her case is based on the alleged need for care and support from her civil partner as she contends that she had received such care and support both before they were imprisoned, and during their imprisonment until 16 February 2016 when the First Defendant separated them.
62. Therefore the issue is whether the Claimant was entitled to insist that her needs were met entirely and solely by her partner, or to share with a cell with a person of her choice, namely her partner. If she did not have that right or entitlement, the lawfulness of the intimate relationship restriction and the Policy does not arise.
63. Mr. Southey contends that by being prevented from sharing her cell with the Interested Party, her rights under Article 8 were engaged and infringed as she was entitled to have her needs met by her partner. Mr. Southey submits that any limitation upon contact between prisoners and their family engages Article 8 and he relies on the statement of the Strasbourg Court in Klamecki v Poland (2004) 39 EHRR 7 (which was a case in which a prisoner challenged his prison conditions on article 8 grounds) that:

"….it is an essential part of a detainee's right to respect for family life that the authorities enable him or. if need be, assist him in maintaining contact with his close family. Such restrictions as limitations put on the number of family visits, supervision over those visits and, if so justified by the nature of the offence, subjection of a detainee to a special prison regime or special visit arrangements constitutes an interference with his rights under Article. 8 but are not, by themselves, in breach of that provision…"

64. Mr. Southey's submission is that the intimate relationship restriction constitutes a very significant limitation which has been imposed on the contact permitted between the Claimant and her partner, the Interested Party. The significance of the interference is that the Claimant and her partner are unable to care for each other in the manner that they would otherwise have done.
65. Mr. Hodivala and Mr. Weisselberg submit that the Claimant's article 8 rights have not been infringed by prohibiting the Claimant and the Interested Party to provide intimate care for each other, and also by requiring the Interested Party to move to a nearby cell while retaining unfettered access to the Claimant's cell and to the Claimant generally during the periods when all prisoners were not locked up.

(ii) Were the Claimant's Article 8 rights engaged?

66. My starting point is that the Claimant and the Interested Party were, at the time of the separation, serving prisoners and so they were subject to the necessary restrictions of prison life which must determine if their Article 8 rights were engaged.
67. There is clear authority that any Article 8 claim by a prisoner must take that factor into account, and this was explained by the Strasbourg Court in Nowicka v Poland [2003] 2 FCR 25 when it observed that:

"71. Moreover, normal restrictions and limitations consequent on prison life and discipline during lawful detention are not matters which would constitute in principle a violation of article 8 either because they are considered not to constitute an interference with the detainee's private and family life, or because any such interference would be justified (see DG v Ireland (2002) 35 EHRR 1153)".

68. As I explained in paragraph 59 above, Lord Bingham explained that being a prisoner "inevitably curtails" the right of the Claimant to choose when and how she could associate with other people, and that this was an inevitable consequence of being in prison. So the Article 8 rights of a serving prisoner are different and much more limited than those of a person who is not serving a sentence. It does not in itself constitute an infringement of the prisoner's article 8 rights as it was inherent in the prison sentence, and it was not of such a degree that the Claimant's right to a private or family life has not been respected by the First Defendant as required by Article 8(1).
69. In the present case, after the implementation of the decision of 16 February 2015, the Claimant and the Interested Party could mix as long as they liked during the periods when they, like all other prisoners, were not locked up. So they continued to have regular, lengthy and unfettered daily contact during the remainder of the time. So in accordance with the approach advocated in Klemacki (supra) the Claimant and the Interested Party were able to maintain close contact after the Interested Party was moved out of the Claimant's cell. The fact that they could not share a cell did not mean that the Claimant's article 8 rights were engaged and infringed when they were locked in their cells, bearing in mind that both of them were serving prisoners and were therefore subject to the restrictions on their movements and the people with whom they associate, as Lord Bingham explained.
70. In considering if the Claimant's Article 8 rights were engaged, it is clear that she is in a very different position from the claimants in R (Bright) v Secretary of State for Justice [2015] 1 WLR 723. In that case, the Court of Appeal held that decisions to separate prisoners, who were in long-term same sex relationships with each other by moving them to different cells and thereafter to different prisons, had not infringed their Article 8 rights even if, as was apparently assumed, such rights were engaged. In the present case, unlike in the case of Bright, the Claimant remained on the same wing as her partner in an adjoining cell and she was able to have substantial regular daily contact with her. In those circumstances, I do not consider that the Claimant's Article 8 rights were engaged by the loss of care and support from her civil partner during the period when they, like their fellow prisoners, were locked in their cells. After all, as I have explained in paragraph 10 above, the Claimant's GP had reported to the prison authorities that the Claimant did not need a carer, namely someone specifically allotted to assist her.

(iii) If the Claimant Article 8 rights were engaged, were they infringed?

71. On the assumption that the Claimant's Article 8 rights were engaged, the medical evidence does not establish that the Claimant's Article 8 rights were interfered with by the decision of 16 February 2016 because of the significant steps which the First Defendant took to ensure that the Claimant was able to function in a manner which did not infringe her Article 8 rights, as I have set out in paragraphs 57 and 58 above. The Claimant did not take advantage of the opportunities offered to her for more assessments and that was her decision; this failure to obtain more assessments cannot be held against the Defendants. The Claimant, as a serving prisoner did not have a right to have the Interested Party as her cellmate.
72. I therefore conclude that the Article 8 rights have not been engaged and infringed.

Issue 5 – Article 8 (2)

(i) The Submissions

73. The Defendants contend that if (contrary to my conclusion) the Claimant's Article 8 rights have been interfered with by the decision of 16 February 2015, they can rely on Article 8(2) to establish that there is no interference with the Claimant's Article 8 rights as that decision was made

"in accordance with the law and is necessary in a democratic society in the interests of … public safety...for the prevention of disorder, for the protection of health and morals or for the protection of the rights and freedoms of others".

74. Mr. Southey contends that it is for the public authorities, namely the Defendants, to show that these conditions are satisfied (see R (Quila) v Secretary of State [2012] 1 AC 621[44]). I agree with that and also that this exercise entails the Defendants showing that the interference is in accordance with the law (R (T) v Chief Constable of Greater Manchester [2015] AC 49 [19]), that it is necessary in a democratic society (R (Daly) v Secretary of State (supra) [27]) and that a fair balance had been struck (Huang v Secretary of State [2017] 2 AC 167,191)
75. The case for the Defendants is that these requirements have been satisfied. The Policy and the intimate relationship restriction were lawful instructions made pursuant to a statutory instrument, which in itself was made pursuant to the 1952 Act, as I explained in resolving Issue 1 above. The decision to move the Interested Party out of the Claimant's cell was "necessary in a democratic society" and proportionate as there was consideration as to whether the decision of 16 February 2015 should be taken as I have explained in paragraph 10 above.
76. Mr. Southey contends that the decision to move the Interested Party out of the Claimant's cell was not proportionate, as there was a requirement by the First Defendant to consider the particular circumstances of each case. He relies on the statement of the Grand Chamber in Dickson v United Kingdom (2008) 46 EHRR 41 which it was held that the United Kingdom's policy on artificial insemination lacked sufficient flexibility because:

"82 …the policy as structured effectively excluded any real weighting of the competing individual and public interests, and prevented the required assessment of the proportionality of a restriction in any individual case."

Conclusions on Article 8(2)

77. If I am wrong and Article 8(1) was engaged, I am satisfied that the decision to prevent the Claimant sharing her cell with her partner was justified under Article 8 (2) because:

i) The decision was taken "in accordance with law" because of the terms of the Policy, and in particular the intimate relationship restriction which, as I have explained in resolving Issues 1 and 2, was a binding and enforceable rule;

ii) The decision pursued the legitimate aim of the promotion of good order and discipline in the First Defendant, which was necessary for the prevention of disorder, which as I explained in paragraphs 32 to 36 could have arisen if same sex partners were allowed to share cells. In addition, as I have explained in paragraph 10, there was consideration of whether the Claimant needed a carer and the views of the Claimant's GP were sought. When the GP's answer was in the negative, the decision was made to move the Interested Party out of the Claimant's cell; and

iii) The policies were proportionate to the aim they pursue, as I have explained, the Policy provides that if two women have a relationship prior to the start of their sentence and wish to be allocated to the same wing, they must make an application to the residential manager. Such application was made by the Claimant and her partner and was granted. After 16 February 2015, the Claimant and her partner were placed in adjoining cells in the same wing.

78. I have not overlooked Mr. Southey's submissions that the intimate relationship restriction can be regarded as objectionable and invalid as it is inflexible. The statement in Dickson on which he relied comes after the Grand Chamber had carried out a detailed fact-sensitive analysis of the policy in question. It was not setting out a definite rule to be applied in all cases. Indeed, the Strasbourg jurisprudence has long recognised (with emphasis added) that "it must be recognised that in general it is justifiable to apply to prisoners a uniform policy avoiding any appearance of arbitrariness or discrimination" (Boyle and Rice v United Kingdom (1998) 10EHRR). By the same token in X and Y v Switzerland (1978) 13DR 241, it was decided that a complaint about a blanket policy forbidding sexual relations between married couples in prison was held by the Commission to be inadmissible, as such policy was considered justified for the prevention of disorder in First Defendant.
79. Similarly, in the case of ELH and PBH v United Kingdom [1998] EHLR 231, the Commission declared inadmissible a complaint that the blanket policy banning conjugal visits amounted to a violation of Articles 8, 9 and 12 explaining that:

"...[T]he Commission finds that it is within a State's margin of appreciation for the authorities to consider that the particularly exacting demands of discipline and order in prison required that no distinctions should be made between prisoners insofar as 'conjugal visits' are concerned."

80. There are procedural requirements in Article 8 because in Bright (supra), the Master of the Rolls referred [42] to the statement of the Strasbourg Court in Tysiac v Poland (2007) 45 EHRR 947 [111] that:

"….Whilst Article 8 contains no explicit procedural requirements, it is important for the effective enjoyment of the rights guaranteed by this provision, that the relevant decision-making process is fair and such as to afford due respect to the interests safeguarded by it. What has to be determined is whether, having regard to the particular circumstances of the case and notably the nature of the decisions to be taken, an individual has been involved in the decision-making process, seen as a whole, to a degree sufficient to provide her or him with the requisite protection of their interests."

81. In this case, the Claimant had been involved in the decision-making process taking into account the representations made by the Prisoners' Advice Service, to which I referred in paragraph 14 above.
82. So it follows that the application of Article 8(2) in this case is an additional reason why the Claimant cannot show an infringement of Article 8.

Issue 6 – The Claimant Disabled Issue

83. The Claimant contends that she had a "disability" within the meaning of the 2010 Act while the Defendants contend that she did not have a disability.
84. Section 6 of the 2010 Act provides that:

"(1) A person (P) has a disability if –

(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities".

85. Paragraph 2(1) of Schedule 1 of the 2010 Act defines' "long-term" as including a condition that "has lasted for at least 12 months".
86. Mr. Southey submits that there is evidence that the Claimant was disabled on 16 February 2015 as the Occupational Therapy Report noted that the Claimant had said that she had suffered from chronic back pain for a number of years and that this had caused reduced mobility on the Claimant's part, and that this had required pain relief. It is contended that account can be taken of what the state and effect of the Claimant's condition would have been if no treatment had been provided.
87. Reliance is also placed on a report from Mr. Oscar Garcia-Casas, consultant spinal surgeon which states that he had examined the Claimant on 31 March 2015 and she had complained of a long history of mechanical chronic lumber pain with a self limit episode of bilateral limb paralysis which spontaneously recovered. On examination, he found that the Claimant suffered from severe lower back pain and there is evidence that the Claimant required pain relief and this shows what her medical condition would be if no treatment was provided.
88. The case for the Defendants is that the Claimant did not have a disability. It is true that the information in the Occupational Therapy Report and in the report of Oscar Garcia-Casas is largely based on what the Claimant has told them. Mr. Gillman-Smith has concluded that the Claimant has a disability. It is however for the Court and not for an expert to decide if a person has a "disability" (see Vicary v British Telecom [1999] IRLR, 680, 682 [16]).
89. The medical notes show that the Claimant had had impairment problems for some years and I have concluded that the Claimant has a "disability".

Issue 7 – The Breach of the 2010 Act Issue

(i) S 20 of the 2010 Act

90. Mr. Southey complains that the First Defendant failed to comply with its duty under section 20 of the 2010 Act, to make reasonable adjustments to meet the needs of the Claimant who suffered from disabilities, because of its decision to refuse to allow the Interested Party to share the Claimant's cell.
91. Section 20 specifies the duties to make reasonable adjustments to address the needs of those who suffer from disabilities, while section 21 states that a failure to comply with these duties amounts to discrimination. Mr. Southey contends that the relevant duties in section 20 are:

"(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(4)The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage."

92. His contention is that the Claimant was placed at a substantial disadvantage because of the difficulties she experienced getting out of bed, with the result that it would have been a reasonable step to allow the Interested Party to share the Claimant's cell so as to assist her to get out of bed. Mr. Southey submits that the fact that a grab rail could not be provided supports his contentions assuming that there were good security reasons for not fitting the grab rail.
93. Mr. Southey contends that the intimate relationship restriction placed the Claimant at a substantial disadvantage because she was prevented from enjoying the support that she would have required to be in a similar position that she would have been in without a disability, which was to be able to care for herself with minimal pain and indignity.
94. The case for the Defendant is that it is not accepted that in the words of section 20(3) of the 2010 Act "any provision, criterion or practice" of the First Defendants puts the Claimant at a substantial disadvantage in comparison with persons who are not disabled. Furthermore, it is also not accepted by the Defendants that in the words of section 20(4) of the 2010 Act any "physical feature" of the Claimant's cell put her at a substantial disadvantage in relation to persons who are not disabled. I agree in the light of the evidence to which I have referred in particular in paragraphs 57 and 58 above.
95. The stronger reason why I believe that the claim under section 20 fails is because I am quite satisfied that the First Defendants did in the words of section 20 "take such steps as it is reasonable to have to take to avoid the disadvantage". I reach that conclusion because:

i) The First Defendant commissioned an Occupational Therapy Report on the Claimant which was prepared on 7 January 2015 and it stated that she had some difficulty with using the toilet, but that she was able to transfer independently from her chair on to the toilet. It did not state that the Interested Party was the only person who could help the Claimant.

ii) The Report recommended (a) the installation of a plastic fluted grab rail and so was not installed as standard; (b) the provision of a chair with arms; and (c) a GP referral for a physiotherapy review of mobility and balance. As to (a), this was not installed as it was not considered it appropriate to do so as it created ligature points and the Claimant had threatened to commit suicide if she was not allowed to share a cell with the Interested Party, who suffered from mental illness. The chair specified in (b) was provided. As to (c), the Claimant was referred to an Orthopaedic Surgeon who works alongside a Physiotherapist to assess patients and make appropriate referrals to each other in the light of those assessments. As a result of this referral, the Claimant had two appointments with a consultant spinal surgeon and an MRI scan, as well as being referred to a pain clinic.

iii) The Claimant was offered a reassessment of her needs in the Healthcare Wing at the First Defendant as she considered that the Occupational Therapy Report had not assessed her overnight needs but she refused to attend.

iv) As I have explained in paragraph 10 above, there was a multi-disciplinary meeting between members of the staff at the Prison prior to 16 February 2015 to discuss the situation in which the Claimant was claiming that she need to have a carer who had to be the Interested Party, and it was decided to consult the GP for the Claimant.

v) The Claimant's GP reported that the Claimant did not need a carer and the decision was then taken to move the Interested Party.

vi) For the entire period of the Claimant's incarceration, with the exception of a period of five days in December 2014, she was housed in a disabled cell, which was adapted to meet the need of disabled prisoners as it had a widened door to facilitate wheelchair access and was larger than an ordinary cell so as to allow movement around the cell in a wheelchair.

vii) Ms. M.T. Mangwiro, the Primary Care Nurse Manager at the First Defendant, stated that she met with the Claimant on 24 February 2015 who said that she was not coping at that time at night. Ms. Mangwiro said that she told the Claimant that she could arrange for her to be admitted to Healthcare so that her night time needs could be assessed, but the Claimant refused this offer.

viii) At no stage has the Claimant suggested what further steps the First Defendant should take or have taken to assess what overnight care, if any, she needed.

ix) The First Defendant could not require or compel the Claimant to undertake such an assessment.

96. This shows that the First Defendant was taking such steps as were reasonable to ensure that the Claimant avoided the disadvantage caused by her disability, including seeking to investigate what could be done to help the Claimant to avoid that disadvantage. I am quite satisfied that those steps ensured that the requirements in section 20, to which I have referred, have been satisfied.
97. The Claimant wanted the Interested Party to help her and provide assistance, but as I have explained, the intimate relationship restriction prevented that for valid reasons. In any event, the steps taken by the First Defendant and set out in paragraph 95 above cannot be regarded as unreasonable and this claim must be rejected.

(ii) S 149(1) of the 2010 Act

98. S149(1) of the 2010 Act provides that:

"A public authority must, in the exercise of its functions, have due regard to the need to

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it."

99. The case for the Claimant is that no account was taken of her disabilities when the decision was taken that the Interested Party was to move out of her cell. It is contended that the intimate relationship restriction policy prevented the Interested Party from providing intimate care to the Claimant. So it is said that this shows a failure to give consideration to the individual circumstances of the Claimant and her partner and a failure to comply with s149 (1).
100. I am unable to agree as the First Defendant did consider and have due regard to the Claimant's disability before the decision was taken to move the Interested Party out of the Claimant's cell as is evident from many of the matters which preceded the decision to move the Interested Party out of the Claimant's cell and which are included in paragraph 95 above.

Conclusion

101. For the reasons which I have sought to explain, this application is dismissed.