R (D and M) v SSWP  EWCA Civ 18
(1) That prisoners detained under s47, s47/49 or s45A, in contrast with civil patients or hospital order patients, receive no welfare benefits until their release date is not unlawful discrimination under Article 14 taken with A1P1. (2) On a proper construction of the statutory language, lifers detained under the MHA are entitled to Income Support or State Pension Credit when they reach their tariff expiry date. [Caution.]
Because the construction argument (see point (2) above) went against the government, they changed the law. See:
- Social Security (Persons Serving a Sentence of Imprisonment Detained in Hospital) Regulations 2010 — These Regulations amend the relevant social security legislation so that post-tariff indeterminate-sentence prisoners who have been transferred under the MHA do not receive benefits on their tariff expiry date, but must wait until their actual release, thus reversing the Court of Appeal decision in R (D and M) v SSWP  EWCA Civ 18. In force 25/3/10.§
The LSC refused funding for an appeal to the Supreme Court and an application has been made to the ECtHR.
The discrimination against transferred prisoners, as opposed to civil patients or hospital order patients, is justified and therefore not unlawful. The one exception is technical lifers, who are entitled to benefits in the same way as hospital order patients. The reasons given on appeal were essentially the same as those given by the judge below: see R (EM) v SSWP  EWHC 454 (Admin).
The Income Support (General) Regulations 1987 concern eligibility for Income Support. Regulation 21 and Schedule 7 deal with special cases, including prisoners transferred to hospital under the MHA. The 1987 regulations were amended by the Social Security (Hospital In-Patients) Regulations 2005 so that such a patient could not receive Income Support unless "detention continues after the date which the Secretary of State certifies or Scottish Ministers certify would have been the earliest date on which he could have been released in respect of, or from, the prison sentence if he had not been detained in hospital". The State Pension Credit Regulations 2002 concern eligibility for State Pension Credit, and were amended in the same way.
The judicial review revolved around the interpretation of the phrase "the earliest date on which he could have been released". The SoS interpreted this as the date on which a prisoner was entitled to be released, and therefore detained lifers were never entitled to Income Support or State Pension Credit . The claimants argued that the date was the tariff expiry date, because they could have been released then. At first instance the SoS won. The claimants were successful on appeal, essentially because theirs was the natural interpretation and it did not lead to an absurd result.
Means-tested (income-related) benefits include Income Support and Pension Credit. Non-means-tested benefits include Incapacity Benefit, DLA, and the state retirement pension.
Income-related benefits are available at all times to non-detained patients, civil patients, hospital order patients, and technical lifers. Determinate-sentence transferred prisoners (including s47 and s45A) are entitled only from their release date. Lifers are entitled only from their tariff expiry date.
The difference with non-means-tested benefits is that lifers remain ineligible after their tariff expiry date.
All the claimants were lifers or determinate-sentence prisoners, but the same logic should apply to IPP prisoners after their minimum term, or old CJA 1991 long-term prisoners at their half-way point.
The Admin Court decisions:
- R (EM) v SSWP  EWHC 454 (Admin) — The Regulations which deprive of welfare benefits transferred prisoners (s47/49 and s45A patients until they would be entitled to release if in prison) are lawful; this is because there is enough of a relevant difference between them and civil/s37 patients to justify different treatment (i.e. they have been sentenced to a term of imprisonment to which they remain subject); in general, this applies all determinate and indeterminate sentence prisoners, including post-tariff lifers, technical lifers being the only exception because they had not been considered when the Regulations were drawn up and there is not enough of a relevant difference present.§
- R (RD) v SSWP  EWHC 2635 (Admin) — Post-tariff lifers who have been transferred to hospital are not entitled to receive Income Support.§
A related House of Lords decision:
- R (RJM) v SSWP  UKHL 63 — Social welfare payments come within the scope of Article 1 Protocol 1; homelessness is an "other status" under Article 14; depriving the homeless of disability premiums was justified; the Court of Appeal is free (but not obliged) to follow an ECtHR decision rather than a previous inconsistent CA decision, but (absent wholly exceptional circumstances) must follow any previous House of Lords decision.§
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
PRISONS — Prisoners’ rights — Welfare benefits — Entitlement — Convicted prisoners transferred to and serving part of sentence in psychiatric hospital — Changes to social security entitlements for hospital in-patients beneficial to civil patients whereas prisoners losing entitlement to income-related benefits — Whether different treatment justified — Whether discrimination against prisoners in breach of Convention right — Mental Health Actt 1983, s 45A ( as inserted by s 46 of the Crime (Sentences) Act 1997), s 47 — Human Rights Act 1998, Sch1, Pt I, art 14; Pt II,, art 1 — Social Security (hospital In-Patients) Regulations 2005
PRISONS — Prisoners’ rights — Welfare Benefits — Exclusions — Post-tariff life prisoners transferred to psychiatric hospital after expiry of tariff — Date from which entitled to income support benefits — Income Support ( General) Regulations 1987), Sch 7, para 2A ( as substituted by of the Social Security (Hospital In-Patients) Regulations 2005,reg 4(5))
The distinction made, for the purpose eligibility for welfare benefits, between convicted prisoners serving part of their sentences in psychiatric hospital by virtue of action taken under s 45A or s 47 of the Mental Health Act 1983 and non-prisoners detained in such a hospital was not discriminatory. For a prisoner serving a life sentence after the expiry of his tariff (“a post-tariff lifer”), who like other prisoners detained in psychiatric hospital was entitled to income support from the earliest date on which he could have been released in respect of, or from, his prison sentence, that date was the one on which the Parole Board was first able to direct his release, namely the end of the tariff period.
The Court of Appeal so stated when (i) allowing the appeal of RD and PM, post-tariff lifers who had been transferred to psychiatric hospital after expiry of their tariffs, against a decision of Burnett JM on 31 October 2008 that for a there was no appropriate date when disqualification from benefits did not apply and (ii) dismissing the appeal of EM and others (convicted prisoners transferred under the Mental Health Act 1983 to psychiatric hospitals) against a decision of Burnett J M on 13 March 2009 that legislation removing entitlement to social security benefits from such prisoners complied with the European Convention for the Protection of Human Rights and Fundamental Freedoms.
CARNWATH LJ said that the appeals related to treatment of convicted prisoners serving part of their sentences in psychiatric hospital by virtue of action taken under the Mental Health Act 1983. The second case raised a discrimination issue concerning two categories of convicted sentenced prisoners: (i) those transferred to psychiatric hospitals under s 47 of the 1983 Act after sentence and (generally) serving time in prison, and (ii) those subject to hospital and limitation directions under s 45A of the 1983 Act imposed at the same time as they were sentenced. Both categories were to be contrasted, on the one hand, with convicted prisoners who were serving their sentences in prison and, on the other, with patients detained in hospital under purely civil law powers or so detained under s 37 of the 1983 Act following conviction but without any sentence having been passed. The Social Security (Hospital In-Patients) Regulations 2005 had brought changes to the benefit system after April 2006 affecting those categories of patients. The changes were beneficial to civil patients, including s 37 patients, but detrimental to s 47 and s 45A prisoners who lost their entitlement to income-related benefits. For the purposes of establishing discrimination in breach of art 14 of the Convention and art 1 of the First Protocol to the Convention, the test was whether there was a difference of treatment and whether it could be justified. The relevant difference was between patients who were prisoners and those who were not. The issue of whether that treatment could be justified should be looked at broadly. Transferred patients had all been sentenced to a term of imprisonment by a court, by contrast with those made subject to a hospital order or those who were civil detainees. The Secretary of State had decided as a matter of policy that whilst a prisoner was deprived of his liberty in consequence of a sentence of imprisonment, he should be treated for benefits purposes in exactly the same way wherever he happened to be detained. Thus, for the purposes of benefits it mattered not whether the detainee was in a penal establishment, a psychiatric hospital or an ordinary hospital. The question was not whether he was being punished at any given moment but whether he remained subject to the sentence of the court. Were it not for the mental disorder, the person concerned would be in prison serving the sentence imposed by the court. The first case raised a construction issue concerning a more limited sub-set of transferred prisoner, so-called “post-tariff lifers”. Income support was reduced to nil in respect of a person detained under ss 45A or 47 of the 1983 Act but not if his detention continued after the date which the Secretary of State certified would have been the earliest date at which he could have been released in respect of, or from, the prison sentence, had he not been detained in hospital. The issue was what was the meaning of “could have been released in respect of, or from, the prison sentence” in para 2A of Sch 7 to the Income Support (General) Regulations 1987 (as inserted by the 2005 Regulations). The judge had held that for a determinate sentence prisoner that was the date when he would have been released disregarding the possibility of an earlier discretionary release or the addition of time for bad behaviour, but that for a lifer there was no such date, because release was not a matter of right but was always dependent on an positive decision of the Parole Board. In his Lordship’s judgment, the natural reading of the provision was as a reference to the date at which the Parole Board was first able to direct release, i e the end of the tariff period. The appeal would be dismissed on the discrimination issue and allowed on the construction issue.
WALLER LJ and PATTEN LJ agreed.
Regina (D and another) v Secretary of State for Work and Pensions
Regina (M and others) v Same
B;  WLR (D) 20
CA : Waller, Carnwath, Patten LJJ:
27 January 2010
Appearances: Paul Bowen (instructed by Bindmans) for RD and PM; Martin Chamberlain (instructed by Solicitor, Department for Work and Pensions) for the Secretary of State in the first case; Richard Gordon QC (instructed by Scott-Moncrieff Harbour & Sinclair, Kentish Town) for EM and others; Marie Demetriou (instructed by Solicitor, Department for Work and Pensions) for the Secretary of State in the second case.
Reported by: Alison Sylvester, Barrister.