The expanding reach of equality law has been making in-roads into human rights based challenges to state detention for some time now, not always successfully. A recent case shows just how much scope there is for developments in this area.
It is well-established that detention at immigration removal centres will often have a negative impact on the mental health of detainees. Unexplained deaths, reports of abuse and high rates of suicide attempts have all been roundly condemned across the political spectrum.
One of the main issues in the case of VC (by his litigation friend the Official Solicitor) v Secretary of State for the Home Department, Equality and Human Rights Commission intervening  EWCA Civ 57 was whether the government had put in place adequate procedures for mentally ill detainees to challenge the conditions and duration of their detention.
The claimant was mentally ill and had been detained for almost 1 year under immigration powers and had been transferred into a psychiatric hospital to be detained there under the Mental Health Act 1983. The government’s former policy (which I’ve written about here) required ‘very exceptional circumstances‘ in order to justify detention of those suffering from serious mental illnesses. That policy has since been replaced by a new framework that has had a rather mixed reception.
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While in detention, VC was subject to isolation and segregation from other detainees on six occasions due to aggression and non-compliance.
The legal proceedings
VC’s challenge to his detention in the High Court was rejected on all but one ground. He appealed to the Court of Appeal, arguing that the government has misinterpreted her own policy in deciding to detain, taken a decision via an unfair procedure and had breached the duty to make reasonable adjustments in the exercise of public functions, as contained in sections 20 and 29 of the Equality Act 2010.
VC argued that the Secretary of State was under a duty to ensure adequate policies were in place to avoid difficulties encountered by disabled detainees before such difficulties materialised. In breach of this, no such policies had been developed.
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To recap, in a claim alleging breach of the duty to make reasonable adjustments under the Equality Act 2010 (‘EA 2010’), the disabled claimant must show that:
- The defendant has applied a procedure, criterion or practice (or ‘PCP’);
- The PCP has or would put the claimant at a substantial disadvantage compared to a non-disabled person;
- The Defendant was aware of the substantial disadvantage; and
- Failed to take such steps as were reasonable to avoid that disadvantage.
There is a further consideration in claims based on discrimination in the exercise of public functions that:
- The person suffers unreasonably adverse experience when being subjected to the disadvantage (paragraph 2(5) of Schedule 2 of the EA 2010).
The duty is both forward looking and continuing (see Finnigan v Chief Constable of Northumbria Police  EWCA Civ 1191 at § 32), meaning that those under the duty should not sit back and wait for a disabled person to arrive at their facility before considering what adjustments may be required to remove the disadvantage.
The Court of Appeal decision
Despite the fact that the PCP/s had not been defined either by the Claimant or the High Court below, the Court of Appeal, rather flexibly, defined them by reference to the specific proceses governing both detention, bail and segregation, and in particular the lack of assistance to mentally ill detainees throughout the process in order to help them to understand the basis of the state’s decisions and to make representations in advance of or response to such decisions.
The Court of Appeal received written submissions by the Equalities and Human Rights Commission which set out in some detail the procedural safeguards that apply to persons who are detained under the Mental Health Act 1983 in order to ensure that they are not deprived of liberty in breach of their rights. By contrast, there were no similarly robust and detailed procedures in place to manage the immigration detention of mentally ill persons.
The Court found that the lack of any automatic independent review of immigration detention put mentally ill detainees at a substantial disadvantage with the unreasonable adverse experience (§ 154).
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The adjustments proposed by the claimant were that an advocate ought to assist mentally ill detainees to make representations on detention and/or segregation, that assessments are made at the outset of the detainee’s ability to represent their own interests and that a system of automatic review of the legality of detention ought to be in place.
The Secretary of State, via Ms Julie Anderson, submitted that she did not have any power to put in place a system of mental health advocates to assist detainees who may require them. The Court rejected this submission, noting that she had sufficiently wide powers to govern detention centres in order to set up such a system of assistance.
A further argument advanced by the Defendant in this case was that she was not best placed to become involved in detainee’s choice of representation and issues of capacity, which were better dealt with by the NHS in order to preserve patient confidentiality. The Court did not see there was any evidence to show that this was a significant practical problem. The ‘Rule 35’ system whereby doctors notify the Secretary of State when they have concerns as to a person being particularly vulnerable in detention did not create breaches of confidentiality. No evidence was advanced to show that the adjustment was unaffordable.
Overall, the Secretary of State had not discharged the burden of proving that the proposed adjustments were not reasonable (§ 171).
Further, it was not procedurally fair for the Secretary of State to segregate a person who had been assessed as being out of touch with reality by simply giving them a set of written reasons. More had to be done if fairness were to be achieved in this particular case. In the words of Lord Justice Beatson at § 189:
…great care is needed in ensuring decisions to detain those suffering from mental illness are procedurally fair.
The consequences of this case are potentially wide in that although the Court did not make an order requiring the Secretary of State to implement a specific adjustment, the Court did find that the Home Office had failed to take steps to avoid discrimination against mentally ill detainees subject to detention and segregation. It is now over to the Home Office to ensure that this does not happen again by implementing a system that assists such detainees to challenge decisions made about their liberty and to seek automatic independent review of such decisions.
While the Immigration Act 2016 now provides for automatic referral to the Tribunal for consideration of bail, this process only applies to certain detainees. It excludes persons subject to deportation and persons whom the Secretary of State is considering deporting. Moreover, a referral is only made after 4 months of detention. This new mechanism does not appear to meet the needs of mentally ill persons who are vulnerable to deterioration in detention.
Public authorities, service providers and employers should be pro-active when it comes to mitigating disadvantages that disabled persons may face in accessing their services or in the course of the discharge of public functions. The duty to make reasonable adjustments has aptly been described as requiring more favourable treatment to disabled persons in order to recognise their particular needs and enable them to participate on equal terms with non-disabled persons. As VC shows: where such bodies leave gaps in their procedures that disadvantage disabled persons, the law may intervene and fill them.
 See section 153 of the Immigration and Asylum Act 1999.