R (EM and Others) v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Carnwath,Lord Justice Patten,Lord Justice Waller |
| Judgment Date | 27 January 2010 |
| Neutral Citation | [2010] EWCA Civ 18 |
| Docket Number | Case Nos: (1) C1/2008/2819 & (2) C1/2009/0723 CO/9154/2006, CO/9595/2006 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 January 2010 |
[2010] EWCA Civ 18
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION,
ADMINISTRATIVE COURT
Mr Justice Burnett
Before: Lord Justice Waller
Vice-President of the Court of Appeal, Civil Division
Lord Justice Carnwath
and
Lord Justice Patten
Case Nos: (1) C1/2008/2819 & (2) C1/2009/0723
(1) CO/2815/2008 & (2) CO/5636/2006, CO/5640/2006, CO/6052/2006
CO/9154/2006, CO/9595/2006
Richard Gordon QC & Paul Bowen (instructed by Scott-Moncrieff, Harbour & Sinclair) for the Appellants in EM & others
Marie Demetriou ( instructed by Litigation Division, Department for Work and Pensions) for the Respondent in EM and others
Paul Bowen (instructed by Bindmans LLP) for the Appellants in RD & PM
Martin Chamberlain (instructed by Litigation Division, Department for Work and Pensions) for the Respondent in RD & PM
Hearing dates: Monday 23rd November & Tuesday 24th November, 2009
Lord Justice Carnwath:
Background
These two linked appeals from judgments of Burnett J relate to the treatment of convicted prisoners, who are serving part of their sentences in psychiatric hospitals by virtue of action taken under the Mental Health Act 1983. One ( EM and others) alleges unlawful discrimination as compared with other psychiatric patients not serving such sentences, in breach of article 14, taken with article 1 of the First Protocol (“A1P1”), of the European Convention; the other ( RD and PM) raises a point of construction of the relevant regulations affecting one category of such prisoners. I shall refer to these respectively as “the discrimination issue” and “the construction issue”. Both points arise from changes to the statutory scheme made by the Social Security (Hospital In-Patients) Regulations 2005 (“the HIP regulations”), which took effect from 10th April 2006.
The discrimination issue is concerned principally with two categories of convicted, sentenced prisoners: those transferred to psychiatric hospitals under section 47 of the 1983 Act, and those subject to hospital and limitation directions under section 45A of the 1983 Act. The difference is that the first are transferred after sentence, and generally after serving time in prison; the second are subject to a direction at the same time as they are sentenced. For convenience I shall refer to these groups collectively as “section 45A/47 patients”. They are to be contrasted with, on the one hand, convicted prisoners who are serving their sentence in prison; and, on the other, patients who have been detained in hospital under purely civil law powers (“civil patients”), or so detained under section 37 of the 1983 Act, that is following conviction, but without any sentence having been passed (“section 37 patients”) whether with or without a restriction order under s 41.
The construction issue is concerned with a more limited sub-set of transferred prisoners: so-called “post-tariff lifers”, of whom RD is typical:
“RD was convicted of murder and sentenced to a mandatory term of life imprisonment on 30 March 1983. His tariff was one of 12 years which expired on 6 December 1994…. RD was transferred from HMP Parkhurst to Ashworth Hospital on 28 June 2004. He has been diagnosed as suffering with schizophrenia. Between 1994 and 2004 RD made a number of unsuccessful applications to the Parole Board for release….
For so long as a prisoner transferred under Sections 47 and 49 of the 1983 Act remains in a mental health unit, he may not apply to the Parole Board for release. In the event of being returned to prison, the jurisdiction of the Parole Board would be resurrected.” ( RD judgment para 3–4)
The benefits regime and the 2006 changes
The judgment below contains a full description of the relevant parts of the benefits regime, and the background and effect of the changes made in 2006. I can summarise briefly the key points.
There are two relevant types of welfare benefit: non-contributory “means-tested” (or “income-related”) benefits, and “non means-tested” benefits, which may be contributory or non-contributory. We are concerned principally with a form of means-tested benefit, Income Support (generally available to unemployed adults between 18 and 60) (although similar issues apply also to state Pension Credit, which is available to adults over 60).
As a general rule convicted prisoners who have been sentenced to a term of imprisonment are not entitled to receive any welfare benefits whilst they are in prison. In that respect there was no change in 2006. The changes affected the relative treatment of the various categories of patients noted above, as follows:
Before April 2006
i) Civil patients, section 37 patients and section 45A patients received both means-tested and non means-tested benefits whilst in hospital; but the means-tested benefits were “down-rated” to a flat rate for personal expenses (known as “the pocket money rate”) after a patient had been in hospital for 52 weeks.
ii) Section 47 patients were disqualified from receiving non means-tested benefits. Further, their entitlement to income support was limited to the “pocket money rate” from the date they were transferred to hospital.
From April 2006:
iii) For civil patients (including section 37 patients) the changes brought to an end the system of “down-rating”. Such patients are now eligible to receive the full amount of means-tested benefits even after they have been in hospital for 52 weeks.
iv) Section 45A/47 patients lost any entitlement to income-related benefits. However, the Department of Health make discretionary payments at the same level as the former pocket money rate.
Thus the changes were beneficial to civil patients, including section 37 patients, but detrimental to section 45A/47 prisoners.
The contrasting policy reasons for these respective changes were explained in the evidence on behalf of the Secretary of State, and were not in dispute. In summary:
i) For civil patients, the abolition of the down-rating rule was a response to submissions put to the Government by the National Association for Mental Health (Mind) that rehabilitation was being hindered by the lack of benefits paid at the full rate. The Government accepted that —
“… treatment in its widest sense can… include teaching an individual how to manage a household budget.”
ii) For transferred patients, the objective was to “align the rules for prisoners”, regardless of whether they serving their sentences in prison or hospital, and regardless of the type of benefit.
The thinking behind the latter was further explained in a Memorandum to the Social Security Advisory Committee (“the SSAC Memorandum”), as part of the statutory consultation preceding the making of the HIP regulations:
“The current benefit rules for people transferred from prison to a mental hospital are inconsistent. For the contributory benefits, the General Benefit Regulations disqualify such a person from receipt of benefit for the minimum duration of the sentence. However, no similar provision currently exists for the income-related benefits… The removal of the 52 week hospital down-rating puts this disparity in sharp relief. In order to remove the anomaly the Secretary of State proposes to align the rules across all benefits so as to provide that no benefit is payable for the minimum duration of the prison sentence regardless of the fact that the person has been transferred to a mental hospital…” (para 6, emphasis added)
(As will be seen, the construction issue is principally directed to the differing definitions of the “minimum duration” of the sentence.)
In his evidence for the Department in this case, Mr Mackrell explains (para 21) the reasons for aligning section 45A patients with section 47 patients, rather than with section 37 patients as before. The previous position resulted from the wording of the relevant 1982 benefits regulations, which provided that for the disqualification to apply the patient had first to have been detained in a prison, whereas under a 45A direction he would be go direct to the psychiatric hospital. This was regarded as anomalous, since it was considered that section 45A patients were “in a conceptually similar position” to the section 47 patients in that both were subject to an extant term of imprisonment.
This point was also explained in the SSAC Memorandum:
“There are only about 4 or 5 cases under section 45A each year, but in principle we believe that, for benefit purposes, they should have the status of prisoners whilst undergoing hospital treatment and should not receive benefit. We would stress that this is entirely different from what are termed hospital orders. These are made under Section 37 of the Mental Health Act. This is where the court finds a person guilty of a criminal offence but issues an order directing them to receive treatment in hospital. Such an order is an effective outcome as far as court proceedings are concerned. It is not possible to disqualify such an individual for a notional period for which they could have been imprisoned, because what the court would have done had they not determined that a hospital order was appropriate, will forever be unknowable. A court has many non-custodial options available to it which it could have chosen in these circumstances. The policy is only to apply the disqualification...
To continue reading
Request your trial
-
Cantrell v Allied Irish Banks Plc
...encumbrance on the house was such a detriment. 108 A similar decision was reached in Pegasus Management Holdings SCA v. Ernst & Young [2010] EWCA Civ 18. A claimant sued for negligent advice in the purchase of shares where he had not gained an anticipated tax relief. The Court of Appeal fo......
-
Taylor (Ryan's) Application for Judicial Review
...was not treated as in an analogous situation with a remand prisoner awaiting his trial. In R (DM) v Department of Work and Pensions ([2010] EWCA Civ 18) [2010] 1 WLR 1782 (considered in SS v UK and FA v UK) it was held that those who were admitted or transferred to hospitals after criminal ......
-
Pembele (Paragraph 399(B)(1) - "Valid Leave" - Meaning) [Upper Tribunal]
...Council v National Asylum Support Service [2002] UKHL 38 and D & M, R (on the application of) v Secretary of State for Work & Pensions [2010] EWCA Civ 18 in regard to the status of the Explanatory Memorandum as an expression of the Secretary of State's intention. However, we note that, whil......
-
The King (City of York Council) v AUH
...draws attention to the Explanatory Note on section 107(2) of the FSA 2012: see the principle set forth in R (D and another) v Secretary of State for Work and Pensions [2010] 1 WLR 1782, at paragraphs 44 to 51. We are satisfied that there is no ambiguity surrounding the true construction of......
-
Conditional Rights, Benefit Reform, and Drug Users: Reducing Dependency?
...decision) 13; see, also, R(Dand M) v. Secretary of State forWork and Pensions;R(Eand others) v. Secretary of State for Work and Pensions[2010] EWCA Civ 18, paras. 19±31.217 R(RJM), id.218 R (Carson) v. Secretary of State for Work and Pensions [2005] UKHL 37.ß2010 The Author. Journal Compila......