West Law Report

Disability bias law applies to those in detention

Posted in Disability Discrimination, Times Law Report by mrkooenglish on June 9, 2008

From The TimesJune 4, 2008

Disability bias law applies to those in detention
Court of Appeal

Published June 4, 2008

Gichura v Home Office and Another

Before Lord Justice Waller, Lord Justice Buxton and Lady Justice Smith

Judgment May 20, 2008

Fulfilling a public duty and providing services could occur at the same time.

The Court of Appeal so stated when allowing the appeal of Peter Gichura, a Kenyan failed asylum-seeker and wheelchair user, against a decision of District Judge Hasan in Central London County Court on June 4, 2007, to allow an application by the Home Office and Kalyx Ltd to strike out his claim under the Disability Discrimination Act 1995 relating to conditions under which he was detained at a Home Office detention centre and at a detention centre run by Kalyx under contract.

On appeal, Kalyx alone sought to uphold the judgment. The Home Office conceded that it was arguable that the provision of certain services outlined in the claim came within section 19(2) of the 1995 Act.

Mr Thomas Linden, QC and Mr Nick Armstrong for the claimant; Mr Jason Beer and Ms Lucinda Boon for the Home Office; Ms Alison Hewitt for Kalyx.

LORD JUSTICE BUXTON said that the judge had relied on an immigration case, R v Entry Clearance Officer Bombay, Ex parte Amin ([1983] 2 AC 818) which held that acts performed pursuant to a government function did not come within the meaning of service. Thus what was being provided was part and parcel of a government function and did not come within section 19(2).

There was no case on point but a number of cases showed that that approach was too simplistic. The courts had taken an expansive view of the application of discrimination legislation to matters done in the course of government functions: see Savjani v Inland Revenue Commissioners ([1981] QB 458) and Farah v Commissioner of Police of the Metropolis ([1998] QB 65). The carrying out of a public duty and the provision of a service could occur at the same time.

The broad view of what was provision of services was important because it was important that the 1995 Act did apply in circumstances were it should apply. It was not right that Parliament intended the Act not to apply to detention in detention centres or in police custody or in a prison.

In the detention centre, some functions were purely governmental, like the administrative handling on arrival, but once there, the claimant was provided with services and there was no reason to exclude those services from the ambit of the 1995 Act.

Lord Justice Waller and Lady Justice Smith agreed.

Solicitors: Elder Rahimi, Aldgate; Treasury Solicitor; Davies Lavery.