Distance learning policy at HMP Wakefield declared unlawful
The Administrative Court has 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, Campbell claimed that he had a disability and the prison had not made appropriate adjustments.
R (Campbell and Ferguson) v Governor of HMP Wakefield  EWHC 2596 (Admin) (22/09/2011)
Rule 32 of the Prison Rules states â 1. Every prisoner able to profit from the education facilities provided at a prison shall be encouraged to do so. 2. â¦reasonable facilities shall be afforded to prisoners who wish to do so to improve their education by training by distance learningâ¦ 3. Special attention shall be paid to the education and training of prisoners with special educational needsâ¦â.
PSI 33/2010 encompasses government policy on Rule 32. The primary relevant section states at 2.2: â To be eligible to apply forâ¦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 2â¦
Have evidence of the required potential and motivation to complete a DLâ¦programme.â
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 âpolicy on a policyâ. Counsel for the Defendant 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 âIn 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 undertakeâ¦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 requiresâ¦.This is a material derogation from the terms of the PSI.â
It was emphasized that the PSI represents government policy at paragraph 3: ââ¦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.â
As long as a prisoner has the Level 2 skills in the prerequisites for the course, whatever that may be, he will be accepted âto demonstrate evidence of appropriate learning and attainmentâ. 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.
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 Defendant argued 1. That he wasnât in fact disabled and 2. 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. Campbell relied on sections 6 and 20 of the Equalities Act and PSO 2855 âPrisoners with Disabilitiesâ. PSO 2855 states:
â2.1â¦disability is self-declared and there is no need for any certificationâ¦
6.18 Where appropriate adjustments need to be made and alternative formats providedâ¦.
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.â
Consideration of this ground was not necessary because the decision was quashed on other grounds, but at 20 the judgement states: â...the defendant will need to consider at the point the assertion is raisedâ¦whether the disability â¦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.â