DISCRIMINATION — Disability — Detention centre — Detainee wheelchair user detained in government detention centre and privately-run centre prior to deportation — Detainee contending services provided activated duty to ensure suitability of premises — Detainee alleging failure to adapt premises — Whether “provision of services” — Disability Discrimination Act 1995 ( c 50), s 19(2)

Gichura v Home Office and another; [2008] WLR (D) 164

CA: Waller, Buxton and Smith LJJ: 20 May 2008

Once a disabled detainee had gone through the administrative stage on arrival at a detention centre the services subsequently provided came within the scope of s 19(2) of the Disability Discrimination Act 1995.

The Court of Appeal so stated when allowing the appeal of Peter Gichura, a failed Kenyan asylum seeker and wheelchair user, against a decision of District Judge Hasan in the Central London County Court on 4 June 2007. The judge allowed 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 a detention centre run by Kalyx under contract. On appeal the Home Office conceded that it was arguable that the provision of certain services outlined in the claim came within s 19(2) of the 1995 Act. Kalyx alone sought to uphold the judgment.

BUXTON LJ said that the judge, applying R v Entry Clearance Officer, Bombay, Ex p Amin [1983] 2 AC 818 which held that acts performed pursuant to a government function did not come within the meaning of “service”, held that what was being provided was part and parcel of a government function and did not come within s 19(2) of the 1995 Act. There was no case on point but a number of authorities showed that 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 IRC [1981] QB 458 and Farah v Metroplitan Police [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. It was important that the 1995 Act did apply in circumstances where it should apply. It was not right that Parliament intended the Act not to apply to detention in detention centres or detention 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 a claimant like Mr Gichura was provided with services and there was no reason in the 1995 Act or the authorities to exclude those services from the ambit of the Act.

WALLER LJ and SMITH LJ agreed.

Appearances: Thomas Linden QC and Nick Armstrong (Elder Rahimi) for the claimant; Jason Beer and Lucinda Boon (the Treasury Solicitor) for the Home Office; Alison Hewitt (Davies Lavery) for Kalyx.

Reported by: Alison Sylvester, barrister