Distance learning policy at HMP Wakefield declared unlawful

16 November 2011

In R (Campbell and Ferguson) v Governor of HMP Wakefield [2011] EWHC 2596 (Admin) (22/09/2011), the Administrative Court quashed the decision of the Education Department at HMP Wakefield to refuse Distance Learning courses to two prisoners. The prisoners argued that they had attained the educational level required by government policy and that the local protocol at HMP Wakefield was unlawful to the extent that it was more restrictive. Further, Mr Campbell claimed that he had a disability and the prison had not made appropriate adjustments.

Rule 32 of the Prison Rules states: 1. Every prisoner able to profit from the education facilities provided at a prison shall be encouraged to do so. 2. Reasonable facilities shall be afforded to prisoners who wish to do so to improve their education by training by distance learning. 3. Special attention shall be paid to the education and training of prisoners with special educational needs.

PSI 33/2010 encompasses government policy on Rule 32. The primary relevant section states at 2.2: To be eligible to apply for a DL (Distance Learning) course, the prisoner must:

Be able to demonstrate evidence of appropriate learning and attainment at or above National Qualification Framework (NQF) Level 2; and

Have evidence of the required potential and motivation to complete a DL programme.

Messrs Campbell and Ferguson both had previously taken courses at NQF Level 2 and argued that under the PSI they would be eligible for a DL course requiring the same level of literacy skills. However, HMP Wakefield had a local protocol that required attainment of Level 2 qualifications in literacy, numeracy and information /computer technology (ICT) before prisoners would be allowed to undertake any DL. This was described as a œ”policy on a policy”. Counsel for the Prison argued that it was appropriate to adapt the PSI to the circumstances at each prison, particularly because Wakefield is a Category A establishment and provision of Distance Learning courses requires significant resources.

HHJ Pelling QC held at paragraph 13: “œIn my judgement paragraphs 1 and 2 in combination of the Wakefield protocol is obviously more demanding in its requirement than bullet 2 of paragraph 2.2 of the PSI because in particular paragraph 2 of the protocol states or is interpreted by the defendant as meaning that no prisoner would be permitted to undertake distance learning until that prisoner has achieved a level 2 qualification in literacy, numeracy and ICT. That emphatically is not what paragraph 2 of the PSI requires.This is a material derogation from the terms of the PSI.”

It was emphasized that the PSI represents government policy at paragraph 3: “I accept, that the purpose of the PSI is to establish a national policy that is required to be carried into effect across the prison estate, not least by operation of rule 32, by eliminating the need for each establishment to formulate its own policies in relation to the matters covered by the PSI.”

As long as a prisoner has the Level 2 skills in the prerequisites for the course, whatever that may be, he will be accepted “to demonstrate evidence of appropriate learning and attainment”. Messrs Campbell and Ferguson sought a course that required basic reading and writing skills. They had both done well previously on courses requiring level 2 literacy. Clearly that criterion of the PSI was met but they were refused because they had not obtained Level 2 qualifications in Numeracy and ICT as well, as required by the Wakefield DL Protocol. The decision was quashed.

Mr Campbell also argued that he had disabilities and that a DL course would be more suitable, since he could progress at his own pace. The Prison argued: (i) That he was not in fact disabled; and (ii) That even if he was, DL would be less appropriate for his learning needs, in the opinion of the Head of Learning Development and Skills at HMP Wakefield. Mr Campbell relied on sections 6 and 20 of the Equality Act 2010 and PSO 2855 “Prisoners with Disabilities”. PSO 2855 states:

2.1 “disability is self-declared and there is no need for any certification”

6.18 Where appropriate adjustments need to be made and alternative formats provided.

Annex D

It is best practive always to consult the prisoner on how he/she feel;s his/her disability affects him/her and to give the opportunity to state what they consider their needs to be rather than to make assumptions.

Consideration of this ground was not necessary because the decision was quashed on other grounds, but at 20 the judgment states: “œ…the defendant will need to consider at the point the assertion is raised whether the disability is made out as alleged and, if it is, whether the assertion that distance learning is required to be provided as a reasonable adjustment is also made out.

Messrs Campbell and Ferguson were represented by Jared Ficklin of Garden Court North Chambers, instructed by and Catherine Ellis from Tuckers Solicitors.