R (RD and PM) v Secretary of State for Work and Pensions; R (EM and Others) v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judgment Date | 27 January 2010 |
| Date | 27 January 2010 |
| Court | Court of Appeal (Criminal Division) |
Court of Appeal, C1/2008/2819 &C1/2009/0723
Waller LJ (VP), Carnwath and Patten LJJ
R Gordon QC and P Bowen (instructed by Scott-Moncrieff, Harbour &Sinclair and Others) for EM and Others; M Demetriou (instructed by the Litigation Division, Department for Work and Pensions) for the Secretary of State in EM and Others; P Bowen (instructed by Bindmans LLP) for RD ± M Chamberlain (instructed by the Litigation Division, Department for Work and Pensions) for the Secretary of State in RD &PM.
Whether post-tariff life sentence prisoners transferred to hospital under s47 Mental Health Act 1983 were entitled to income support; whether the differential treatment for the purpose of welfare benefits of prisoners transferred to hospital or held under s45A of the 1983 Act and patients detained under s3/37 of the Act was justified for the purposes of Art 14 ECHR.
(i) Changes in Welfare Benefits: Welfare benefits are of 2 types, means-tested (including income support, generally available to unemployed adults between the ages of 18 and 60) and non-means-tested. Prisoners are not entitled to any welfare benefits whilst in prison. Prior to April 2006, patients in psychiatric hospital had been entitled to means-tested benefits for 12 months, following which they were entitled only to a down-rated personal expenses rate (known as the "hospital pocket money rate"); transferred prisoners were entitled only to the latter rate from the moment of transfer. It was 16.40 as of the time of the changes and was broadly equivalent to the amount that a prisoner could earn in prison. In April 2006, the Social Security (Hospital In-Patients) Regulations 2005 SI 2005 No 3360) ("the HIP Regulations") abolished the hospital pocket money rate, which meant that ordinary patients retained the full rate; patients transferred from prison were entitled to nothing (though payments at the same rate as the hospital pocket money rate continued pursuant to a discretionary power in s122 Mental Health Act 1983). The rationale advanced was that serving prisoners should not receive welfare benefit, irrespective of where they were serving their sentence (in accordance with the general disqualification by reason of s113 Social Security Contributions and Benefits Act 1992); the discretionary payments reflected the fact that there would be some necessary personal expenditure. The additional payments to ordinary patients reflected the view that treatment in its widest sense could include training on how to manage a household budget. A further change was that patients detained under s45A Mental Health Act 1983, who had previously been treated as ordinary patients, were treated as transferred prisoners: the rationale for this was that a s45A involved an underlying prison sentence.
(ii) RD and PM - Construction Issue: RD and PM were life sentence prisoners who had served the tariff part of their sentences but had not been released by the Parole Board; both had been transferred to hospital under ss47/49 of the 1983 Act. They argued that they remained entitled to income support because the effect of para 2A of Sched 7 of the Income Support (General) Regulations 1987 (SI 1987 No 1967) ("the 1987 General Regulations"), which provided that a prisoner transferred to hospital under s47 of the 1983 Act was denied means-tested benefits until it was certified by the Secretary of State that he or she "could have been released in respect of, or from, the prison sentence" had he or she "not been detained in hospital", was that they became entitled on the first date they could theoretically have been released (ie, tariff expiry). They noted that alternative language was available, such as that used in reg 2 of the Social Security (General Benefit) Regulations 1982 (SI 1982 No 1408) ("the 1982 General Benefit Regulations"), which allows transferred prisoners to obtain non-means tested benefits from the day after the date certified by the Secretary of State as the "earliest date on which that person would have been expected to be discharged from detention pursuant to the said sentence or order if he had not been transferred to a hospital or similar institution".
The Secretary of State submitted that the entitlement under the 1987 General Regulations arose only when the Board had directed release. The judge upheld this submission ([2008] MHLR 352), noting that the submissions of RD and PM produced practical difficulties and anomalies that meant it doubtful that it was correct and holding that the intention behind the new language was to enable the identification of a date without an evaluative exercise, which supported the view that the entitlement arose once the Parole Board had directed release. It was also noted that explanatory memoranda as to the changes and the explanatory note to the HIP Regulations supported this view and were legitimate aids to construction. RD and PM appealed.
(iii) EM and Others - Discrimination Issue: The various claimants had received determinate or indeterminate sentences of imprisonment, including 2 who had been made subject to orders under s45A and 1 who was a 'technical lifer', ie someone sentenced to life imprisonment but treated as if a hospital order with a restriction order under the 1983Act should have been imposed. They challenged the changes as discriminatory, relying on Art 1 of Protocol 1 ECHR (the right to property) taken together with Art 14 ECHR. The judge ([2009] MHLR 178) held that there was an adequate difference between transferred prisoners and those sentenced to a hospital order to justify the differential treatment, which was based on the policy of treating those sentenced to
imprisonment the same way in terms of benefits wherever they were detained, except in relation to technical lifers, who were treated for all other purposes as if subject to a hospital order. The losing claimants appealed; there was no cross-appeal on the technical lifer issue.
Carnwath LJ:
Background
1. These 2 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 Art 14, taken with Art 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 1 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 10 April 2006.
2. The discrimination issue is concerned principally with 2 categories of convicted, sentenced prisoners: those transferred to psychiatric hospitals under s47 of the 1983 Act, and those subject to hospital and limitation directions under s45A 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 "s45A/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 s37 of the 1983 Act,
that is following conviction, but without any sentence having been passed ("s37 patients") whether with or without a restriction order under s41.
3. 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 ss47 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
4. 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.
5. There are 2 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).
6. 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, s37 patients and s45A 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...
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