Provision of same-sex intimate care

A recent judicial review decision found that there is no duty to provide same-sex intimate care. Ros Foster examines the case.

In R (on the application of VRP) v Royal Borough of Kingston upon Thames [2025] EWHC 504 (Admin), Mrs Justice Heather Williams DBE was required to consider the interaction between the Care Act 2014, the Human Rights Act 1998 and the Equality Act 2010 and whether that interaction gave rise to a ‘combined duty’ on a local authority to provide same-sex intimate care. The judgment provides helpful clarity on the nature and application of the various provisions relied upon by the Claimant in relation to the provision of personal and intimate care to her.

The Claimant is a severely disabled woman who requires 24-hour support including with intimate/personal care. That care is currently commissioned by her parents, who became concerned that the Claimant would not be guaranteed to be provided with same-sex intimate care once she came under the direct care of the defendant local authority. The Claimant’s parents were concerned that, absent the establishment of a legal duty, contained within a written policy, the Claimant would be at risk of abuse were it to be possible that male carers could deliver her needs for personal/intimate care. The local authority’s position was that the arrangements it had in place for the discharge of its existing duties meant that in practice such care would always be provided by female carers.

It was argued on behalf of the Claimant that specified duties on the Defendant pursuant to the Care Act 2014, the Human Rights Act 1998 and the Equality Act 2010 in combination gave rise to a duty to operate a system that ensured or had the objective of ensuring the provision of same-sex personal/intimate care for female service users by default unless there was a request or preference or it was assessed to be in the service user’s best interests to have care delivered on some other basis. This was referred to in the judgment as ‘the alleged Combined Duty’. The Claimant’s case was that the Combined Duty arose from the combined effect of the duties imposed by section 1 of the Care Act 2014, the Public Sector Equality Duty and the entitlement not to suffer indirect discrimination under the Equality Act 2010 and the positive obligations arising in respect of Articles 3 and 8 of the ECHR. It was argued that the Defendant was subject to the alleged Combined Duty and was in breach of that duty in that it operated a system that (a) failed to take appropriate steps to avoid the risk of physical and psychological abuse, contrary to Article 3, (b) failed to secure service users’ rights to privacy and autonomy, contrary to Article 8, (c) failed to have regard to the need to protect people from abuse, contrary to section 1 of the Care Act 2014, (d) failed to have due regard to the need to promote equality of opportunity or eliminate discrimination and harassment contrary to the PSED and (e) is indirectly discriminatory contrary to section 19 of the Equality Act 2010.

It was the Defendant’s case that no such duty arose and that the outcome in any given case would depend on a consideration of the application of all the principles set out in section 1 of the Care Act 2014 on the particular facts of the case. The Defendant argued that the outcome under the additional provisions relied upon by the Claimant would be no different than that arrived at by application of section 1, where the result is the provision of same-sex care on the facts of most cases. Even if the Defendant were subject to the alleged Combined Duty it was not in breach of that duty as in practice it already provided same-sex personal and intimate care to female service users, both when requested and by default and there was no requirement on it to set this out in a written policy.

Mrs Justice Heather Williams DBE held that the provisions relied upon by the Claimant did not give rise to the alleged Combined Duty and that the Defendant was not subject to any such duty. Taking each of those provisions in turn, the Judge held that:

1. The Care Act 2014 duties did not afford any specific support for the existence of the duty, the relevant statutory guidance contained nothing that was indicative or supportive of the existence of the duty and the imposition of it could conflict with the multi-factoral assessment that the Care Act envisaged taking place in each case.
2. The low-level systems duty to prevent abuse that could arise under Article 3 was not triggered and even if it was, that duty was met by the existing arrangements, practices and safeguards that were in place.
3. The circumstances gave rise to a low-level systems duty pursuant to Article 8 but the Judge was satisfied that adequate and necessary safeguards were in place so as to discharge that duty.
4. The PSED did not assist with establishing the existence of the alleged Combined Duty as it was a duty of means (to have ‘due regard’ to specified matters) not a duty to achieve a particular outcome.
5. The Defendant’s current way of delivering personal and intimate care to female service users did not amount to indirect discrimination. The evidence indicated that the Defendant had, in practice, a system of ensuring same-sex personal/intimate care for female service users save in appropriately exceptional circumstances and as such the Claimant was unable to establish that there was a ‘provision, criterion or practice’ in place that gave rise to the risk of indirect discrimination that was relied upon.

In conclusion, the Judge commented as follows:

“I have fully taken into account the no doubt deeply held concerns of the Claimant’s parents, but in the circumstances no legal basis has been shown for the Court to recognise the alleged Combined Duty – namely a novel duty for which there is no supporting authority, to operate a system that ensures or which has the objective of ensuring, the provision of same-sex personal and intimate care for female service users …in addition to the Defendant’s existing legal responsibilities.

Whilst written practice guidance in this area (which the Defendant is in the process of compiling) is in no doubt desirable, that is a long way from the Court finding that the current absence of written guidance reflecting the alleged Combined Duty, is unlawful.”

Ros Foster is a partner at Hill Dickinson.