Prisoners in psychiatric hospitals not entitled to equal benefits with other patients

29 April 2010 by

R (D and M) v Secretary of State for Work and Pensions; R (EM) v Secretary of State for Work and Pensions [2010] EWCA Civ 18

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With apologies, this post originally appeared with the wrong title

The Court of Appeal has ruled on two linked challenges to the entitlement to welfare benefits of prisoners detained in psychiatric hospitals. One claim alleged unlawful discrimination as compared with other psychiatric patients not serving sentences, in breach of Article 14 ECHR, taken together with Article 1 Protocol 1 ECHR. The other claim raised a point of construction of the relevant regulations affecting one category of such prisoners

The discrimination aspect of the case considered two categories of convicted, sentenced prisoners: those transferred to psychiatric hospitals under section 47 of the Mental Health Act 1983, and those subject to hospital and limitation directions under section 45A of the Act. Prisoners in the first category are transferred after sentence, and generally after serving time in prison, while those in the second were subject to a direction at the same time as they are sentenced. Such prisoners were to be contrasted with, on the one hand, convicted prisoners who serve their sentence in prison and, on the other, patients who have been detained under purely civil law powers or under section 37 of the Act (that is, following conviction, but without any sentence having been passed).

From April 2006, these detained prisoners lost any entitlement to income-related benefits while civil patients detained under the Act became eligible to receive the full amount of means-tested benefits even after they had been in hospital for 52 weeks. The changes were made by the Social Security (Hospital Inpatients) Regulations 2005. The Regulations made no change to the general position that convicted prisoners who have been sentenced to a term of imprisonment are not entitled to receive any welfare benefits while they are in prison.

The claimants argued that the distinctions made were unlawful given the similarities between the respective regimes under section 37 of the Act and under sections 45A and 47. All involve a judgment by the court or the Secretary of State based on medical advice that detention in a psychiatric hospital, rather than prison, is appropriate. Other than the fact that transferred prisoners are liable to be returned to prison once their treatment ceases, in every other respect they are treated for the purposes of the mental health legislation in the same way as patients subject to hospital orders under section 37.

Held:

The Court noted that it was now clearly established by Strasbourg and domestic law that a non-contributory, means-tested welfare benefit conferred by administrative regulation is regarded as a “possession” (R (RJM) v Department of Work and Pensions) [2009] 1 AC 311 and Stec v UK (2005) 41 EHRR SE295. It was common ground between the parties that prisoners had “other status” qualifying for protection under Article 14 ECHR.

The Court held that whether and in what circumstances additional payments, allowed to civil patients to aid their rehabilitation, should also be made to prisoners was essentially a matter of social policy, on which the decision of the state is to be respected, short of irrationality (or where it is manifestly without reasonable foundation).

The Court rejected the claimant’s argument that the purposes of punishment have no relevance to a person of unsound mind. Carnwath LJ observed that the claimants are by definition people who have been accepted as having sufficient mental capacity to bear criminal responsibility for their acts, and have been sentenced accordingly, adding that their time spent in hospital is treated as time spent towards their sentence. The Court also noted that the case was not one of different treatment of the disabled, or of differences in the treatment between those of varying levels of disability, and accordingly the appropriate test was not affected by the fact that those concerned are mentally vulnerable.

The Court also rejected the claimant’s argument in respect of post-tariff life prisoners, while acknowledging that the practical differences between the detention regimes may seem narrower in their case.

In relation to the construction point, the Court allowed the appeal, holding that the earliest date when it became possible for a post-tariff lifer to be released from of or in respect of his sentence would be the date on which the Parole Board was first able to direct release, namely the end of the tariff period. This would be the date used for the purposes of the Income Support (General) Regulations Sch 7 para 2A.

COMMENT

This judgment demonstrates the difficulty of mounting Article 14 challenges in areas of social policy where the Courts allow significant discretion to the executive. It is interesting to ponder, however, the extent to which the particular discrimination status involved (prisoner as opposed to non-prisoner) influenced the Court to hold that this was an area of social policy where a high threshold of irrationality is required before the courts will interfere.

In this case it was accepted (by concession of the Secretary of State in this case) that a status under Article 14 applied. It was also common ground between the parties that this status was not one of those such as race, colour or ethnic origin which called for “very weighty reasons” in justification. The judge below had rejected the Secretary of State’s submission that because the subject matter concerned welfare payments, the Strasbourg Court would afford the state a particularly wide margin of appreciation. The Court of Appeal did not reverse the judge’s finding on this but arguably gave a particularly wide margin of appreciation to a different category of decision, namely decisions about prisoners. Given the general principle that the civil rights of prisoners are not removed – only their liberty – this might be thought questionable, though the alternative outcome (that prisoners are entitled to the same welfare benefits as other mental health patients) is, for obvious reasons, politically unattractive.

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