R (RD and PM) v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judgment Date | 31 October 2008 |
| Neutral Citation | [2008] EWHC 2635 (Admin) |
| Date | 31 October 2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2815/2008 |
[2008] EWHC 2635 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Burnett
Case No: CO/2815/2008
Paul Bowen (instructed by Bindmans LLP) for the Claimants
Martin Chamberlain (instructed by the Office of the Solicitor) for the Defendant
Hearing date: 17 September 2008
The Honourable Mr Justice Burnett :
Introduction.
This case concerns the question whether post-tariff life prisoners who have been transferred by the Secretary of State from prison to a mental health hospital under powers contained in sections 47 and 49 of the Mental Health Act 1983 [“the 1983 Act”] are entitled to Income Support whilst in such a hospital. It is common ground between the parties that the relevant statutory provisions do not entitle post-tariff lifers to Income Support whilst in prison but the Claimant submits that those provisions are couched in terms which dictate the contrary result whilst in a mental health hospital.
The Claimants
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. He had been convicted of further offences of robbery and possession of an imitation firearm but the sentences he received did not affect the expiry of his tariff. 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.
PM was convicted on three counts of rape, two counts of assault, two counts of buggery and two counts of false imprisonment. He was sentenced to life imprisonment on 28 June 1989. He received a tariff of 10 years which expired on 1 March 1998. He was transferred from prison to Rampton Hospital on 14 January 2000 and has since been transferred to another unit. He, too, made an unsuccessful application to the Parole Board before he was transferred.
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.
The Applications for Income Support
Each of the Claimants made an application for Income Support in late 2006. The officials at Jobcentre Plus refused the applications because they considered that the Claimants' entitlement to income support was excluded by the statutory provisions governing entitlement to that benefit. The general rule is that, except where regulations otherwise provide, a person is disqualified from receiving any benefit whilst he is serving a term of imprisonment or is subject to other legal custody.
Both Claimants wish to appeal the refusal to the Social Security Appeals Tribunal. However, as a result of a decision given by the Social Security Commissioner on 9 August 2007 in McNeill v Secretary of State such an appeal will not be entertained unless the Secretary of State first issues a certificate to each Claimant under paragraph 2A of Schedule 7 to the Income Support (General) Regulations 1987 (SI 1987 No 1967) [“the 1987 General Regulations”]. That provision was inserted into the 1987 General Regulations by the Social Security (Hospital In-Patients) Regulations 2005 SI 2005 No 3360) [“the HIP Regulations”] with effect from 10 April 2006. The HIP Regulations removed any entitlement to means-tested benefits (which includes Income Support) for prisoners transferred to hospital under section 47 of the Mental Health Act 1983, subject to a proviso found in paragraph 2A of Schedule 7 to the 1987 General Regulations. The Claimants contend that they are entitled to benefit from the proviso. Paragraph 2A identifies two classes of patient who are denied means-tested benefits before setting out the proviso. It is in the following terms:
“Patients
A Claimant who is detained, or liable to be detained, under-
(a) Section 45A of the Mental Health Act 1983 (hospital and limitation directions) or Section 59A of the Criminal Procedure (Scotland) Act 1995 (hospital direction); or
(b) Section 47 of the Mental Health Act 1983 (removal to hospital of persons serving sentences of imprisonment, etc.) or Section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (transfer of prisoners for treatment of mental disorder),
but not if his 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.”
Thus, once the Secretary of State has certified that the patient has reached the “earliest date he could have been released if he had not been detained in hospital”, the patient becomes entitled to Income Support. There is no dispute between the parties that the proviso applies to determinate sentence prisoners transferred to hospital who continue to be detained after their earliest release date. The question is how the proviso applies to post-tariff lifers who have been transferred from prison to a hospital. The Claimants submit that the answer to that question is self-evident from the language of the paragraph. The question is:
“what would have been the earliest date on which each prisoner could have been released from prison?”
The answer to that, submit the Claimants, must be the expiry of the tariff because on that day each could have been released if the Parole Board had so resolved. The fact that the Parole Board did not make that decision or that it decided that is was unsafe to release a prisoner is, submit the Claimants, irrelevant in the face of clear statutory language.
The Secretary of State submits that the “earliest date that a prisoner could have been released” should be read as referring to the date on which the prisoner would have been entitled to be released, assuming good behaviour in prison such that no additional days were awarded. In contrast to prisoners serving a determinate sentence, for life sentence prisoners there is no entitlement to release until the Parole Board has directed that the prisoners' continued detention is no longer necessary to protect the public. Therefore, a post-tariff lifer cannot receive Income Support whilst in hospital, any more than he can in prison.
The decision under challenge was contained in a letter dated 19 February 2008 from the Office of the Solicitor for the Department for Work and Pensions to the Claimants' solicitors. The short answer to the argument which had been advanced on behalf of the Claimants through their solicitors was given in the way I have described. Additionally, it was suggested that the Secretary of State's interpretation of paragraph 2A of Schedule 7 was consistent with other legislation (to which I shall return). The reasons in the letter concluded in these terms:
“The clear policy intention of the income support legislation is that persons serving a life sentence will not receive benefit until they are actually released from hospital and not returned to prisons.”
Welfare Benefits for those in prison and hospital
Before turning to sketch in more detail the submissions advanced by the parties in support of their competing interpretations of Paragraph 2A of Schedule 7 of the 1987 General Regulations, I shall outline the way in which both prisoners and hospital patients are treated for the purposes of benefits.
As is well known, there are two types of welfare benefit. The first comprises means-tested benefits which are always non-contributory. The second encompasses non means-tested benefits which may be either contributory or non-contributory.
The relevant principal means-tested benefits are Income Support, which is generally available to unemployed adults between the ages of 18 and 60, and state Pension Credit which is available to adults over the age of 60.
With some limited exceptions, convicted prisoners who have been sentenced to a term of imprisonment are not entitled to receive any benefits whilst they are in prison. The position is different for prisoners on remand. In general terms, non-means tested benefits are suspended during the period of detention on remand pending trial. If a defendant is then acquitted or a non-custodial sentence is imposed, the arrears are paid. Remand prisoners are entitled, however, to receive relevant means-tested benefits, that is Income Support or Pension Credit, for a period of up to 52 weeks. Thereafter they receive nothing. Remand prisoners are also entitled to Housing Benefit if they satisfy the statutory criteria.
The position governing the entitlement of hospital patients to benefits underwent a significant change on 10 April 2006 when the HIP Regulations entered into force.
Prior to the introduction of those Regulations patients detained under the 1983 Act arising out of criminal proceedings were disqualified from receiving most non-means tested benefits as persons detained in legal custody. That was the effect of Section 113(1) of the Social Security Contributions and Benefits Act 1992 subject to the exceptions contained in the Social Security (General Benefit) Regulations 1982 ( SI 1982 No 1408) [“the 1982 General Benefit Regulations”]. Notably, under Regulation 2(3) of those Regulations, a person liable to be detained in a hospital who was...
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