High Court rejects claims of “combined duty” on council to operate system that ensures provision of same-sex personal care

The High Court has dismissed a judicial review application brought on behalf of a young woman with severe disabilities in relation to the local council’s provision of same-sex personal and intimate care for women service users.

In VRP, R (On the Application Of) v The Royal Borough of Kingston Upon Thames [2025], the woman’s parents expressed concern that the local authority does not operate a system for the provision of adult social care that ensures same-sex personal and intimate care for women service users.

They contended that the council should record the sex (as well as the gender) of service users, when carrying out its functions under the Care Act 2014.

Concluding the case, Mrs Justice Heather Williams said: “The evidence before the Court indicates that performance of the Defendant's responsibilities under the Care Act 2014, the regulatory framework in place and the Defendant's arrangements with its care providers, do result in practice in same-sex personal and intimate care being provided to female service-users, save in the kinds of (accepted) exceptional circumstances that I have outlined. […] The Care Act 2014 does not require the Defendant to go further than the duties that are there set out, which are centred on the identification of and promotion of service users' well-being on an individualised basis.”

The case concerned a woman with severe physical, learning and Autistic disabilities – who requires full-time one-to-one care.

From November 2022, she was referred to the council’s Adult Social Care services.

The judge noted: “At present, the Defendant makes direct payments to her parents who use these to arrange provision of her care needs. However, they anticipate that there will come a time when they are not able to do this, and the Claimant will fall under the direct care of the Defendant.”

The Claimant's mother explained in her witness statement that she and her husband had always assumed that any intimate care provided to their daughter would be by biologically female carers, in order to protect her dignity and privacy and keep her as safe as possible from potential abuse.

However, when the Claimant's parents checked paperwork relating to her care, they noticed that the Disabled Children's Team in the council’s Achieving for Children ("AFC") collected data on service users' gender, but not on their sex.

Their request that her sex be recorded was unresolved at the time when the Claimant moved to Adult Social Care upon reaching the age of 18.

In March 2023, the Claimant's father made a request to the council under the Freedom of Information Act 2000, which included the following:

"Do you have policies or procedures that have the objective of ensuring that users of your services (commissioned or provided directly) of the female sex who require assistance with intimate care receive this from carers of the female sex? If so, please provide copies."

The council responded to the request the following month, answering this question "no". In response to another question, it indicated that its social care management system did not include a field for the characteristic of "sex" and, "We are required by the Department of Health to record only the characteristic of gender".

A member of the Adult Social Care team, who provided an account of the council’s provision of same-sex intimate care to the court, noted that whilst the council does not have a “formal policy” for the provision of same-sex intimate personal care, even where no specific request has been made, "my expectation would be that wherever possible, female clients receive personal care support from female carers". She regarded this as being "industry standard" within social care.

Outlining the submissions of the claimant, the judge said: “[The] central argument was that the Claimant (and other women like her) have a right to have an assessed need for personal and intimate care met by the provision of same-sex care and that, as a result, the Defendant (and other social services authorities like it) have a corresponding duty to put in place a system that ensures same-sex care.....The Claimant's case is that the Combined Duty arises from the combined effect of the duties imposed by section 1 of the Care Act 2014, the PSED and the entitlement not to suffer indirect discrimination (as defined by section 19 of the Equality Act 2010), and the positive obligations arising in respect of Articles 3 and 8 ECHR.

“The second stage of the argument is that the Defendant is in breach of the Combined Duty as it operates a system that: (a) fails to take appropriate steps to avoid the risk of physical and psychological abuse (Article 3); (b) fails to secure service users' right to privacy and autonomy (Article 8); (c) fails to have regard to the need to protect people from abuse (the wellbeing principle under section 1 of the Care Act 2014); (d) fails to have due regard to the need to promote equality of opportunity or to eliminate discrimination and harassment (the PSED); and (e) is indirectly discriminatory contrary to section 19 of the Equality Act 2010.”

Counsel for the claimant also relied on the public sector equality duty (PSED) as importing a “positive duty” to implement a system that has due regard to the need to eliminate discrimination against women, and against disabled women in particular, and to the need to take steps to meet the needs of women and disabled people that are different from the needs of others.

It was contended that by operating a system of not recording the sex of service users when carrying out assessments for social care and drawing up care plans, the council was unable to give effect to service users' right to same-sex care and would not have the information available to identify, evaluate and address any discriminatory impacts on a protected group, as the PSED requires.

In response, the council disputed that it was under the ‘Combined Duty’ and, in the alternative, that it had breached this duty, if it existed.

Benjamin Tankel for the local authority submitted that the evidence showed in practice the council was already providing same-sex personal and intimate care to female service users, both when requested and by default. He contended that there was “no legal obligation” requiring the defendant to spell this out in a written policy.

He submitted that the council discharged the PSED by undertaking the detailed assessment process described in the evidence in relation to each service user. This enabled all relevant information, including same-sex care preferences and biological sex (where relevant) to be recorded.

He said the evidence showed that although there was not currently a drop down field on the IAS system for recording sex (as opposed to gender), the biological sex of a service user would be “abundantly clear” from their notes on the system.

Analysing the case, the judge said: “As I understand it, Article 3 is relied upon by the Claimant in respect of the heightened risk of physical and psychological abuse, including sexual abuse, that arises from the provision of cross-sex personal and intimate care and/or a system that fails to take steps to guard against the provision of such care on a cross-sex basis.

“For the avoidance of doubt, there is no evidence that an abusive situation of this nature has arisen in the Defendant's provision of Adult Social Care; rather, it is the increased risk of such abuse were cross-sex care provided in comparison to the lower risk in a system of same-sex care, that is said to give rise to the Article 3 low level systems duty.

“Given the relatively high threshold that conduct must reach to amount to ‘inhuman or degrading treatment’ and given that the evidence does not suggest the risks of this occurring are other than at a low level, I do not find that an Article 3 positive obligation is triggered by these circumstances.”

She continued: “Article 8 is relied upon more broadly in terms of preserving the service user's dignity and bodily integrity when receiving personal and intimate care from a carer provided via the Defendant pursuant to its Care Act 2014 obligations.

“I accept that these circumstances give rise to an Article 8 lower level systems duty on the part of the Defendant to have in place an appropriate administrative framework, that is effectively implemented to guard against the risk of breaches of the Article 8 negative obligation. […] The question for me is whether there are ‘adequate and effective safeguards’ against such breaches in all the circumstances.

“I am satisfied that there are such ‘adequate and effective safeguards’ in place and that, accordingly, neither Articles 3 or 8 assist the Claimant's Combined Duty argument.”

Turning to the Care Act 2014 framework, Mrs Justice Heather Williams said: “The Care Act 2014 framework and the evidence as to the way that it is operated in practice by the Defendant, indicates that, where it is relevant to do so, a service user's sex will be captured as part of their detailed needs assessment and care support plan, that this will be made available to those involved in the provision of their personal and intimate care and that any such recorded preference will be respected.

“Furthermore, the Defendant's evidence indicates that in practice – and save for in the kind of exceptional situations that I refer to below – same-sex personal and intimate care is provided to service users. The Claimant has provided no evidence to gainsay this and I accept the Defendant's evidence in this regard.”

She added: “The Claimant is not assisted by the Defendant's indication that it does not guarantee the provision of same-sex care to female users in all circumstances. In her oral submissions, Ms Monaghan (for the claimant) accepted that the examples given in Mr Tankel's skeleton argument were indeed instances where same-sex care would not necessarily be the right answer. The examples identified included: where there was an urgent need for care to be provided and a female carer was unavailable; a female service-user who exhibited violent and challenging behaviour, such that female carers were not physically strong enough to protect her, themselves and/or others in the vicinity; and a transgender service user who has a preference for intimate care from a carer of their adopted sex.”

The judge found that the council’s current way of delivering personal and intimate care to female service users did not amount to indirect discrimination within section 19 of the Equality Act 2010.

Dismissing the application for judicial review, Mrs Justice Heather Williams concluded: “The Care Act 2014 does not require the Defendant to go further than the duties that are there set out, which are centred on the identification of and promotion of service users' well-being on an individualised basis. For the reasons I have identified, the Defendant's systems and practices adequately and effectively safeguards against breaches of Articles 3 and/or 8 ECHR in respect of the provision of same-sex personal and intimate care. […] The evidence indicates that the Defendant is complying with its obligations under the PSED.

“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 (save where there is a preference or it is assessed to be in the service user's best interests to have care delivered on some other basis) – 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 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.”

Lottie Winson