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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> D & M, R (on the application of) v Secretary of State for Work & Pensions  EWCA Civ 18 (27 January 2010)
Cite as: 112 BMLR 140,  EWCA Civ 18, (2010) 112 BMLR 140,  1 WLR 1782
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION,
MR JUSTICE BURNETT
(1) CO/2815/2008 &
(2) CO/5636/2006, CO/5640/2006, CO/6052/2006
Strand, London, WC2A 2LL
B e f o r e :
Vice-President of the Court of Appeal, Civil Division
LORD JUSTICE CARNWATH
LORD JUSTICE PATTEN
| THE QUEEN ON THE APPLICATION OF
D & M
|- and -
|THE SECRETARY OF STATE FOR WORK & PENSIONS
|(2) THE QUEEN ON THE APPLICATION OF EM & OTHERS
|- and –
|THE SECRETARY OF STATE FOR WORK & PENSIONS
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
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
Crown Copyright ©
Lord Justice Carnwath :
"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
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.
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 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.)
"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 rule where there is a definite prison sentence against which to measure it." (para 18, emphasis added)
[The reference to the small number of cases under section 45A related to the position before amendments made in 2007 which extended the scope of the power from those suffering "psychopathic" disorders, to mental disorders generally (following R v Staines (Paula)  EWCA Crim 15). It is expected that there is or will be increased use of section 45A, as an alternative to section 37, where (as Mr Gordon put it in argument) "the court wishes to leave open the option of returning the patient to prison in the event the patient is not benefiting from treatment".]
The statutory provisions
Mental Health Act 1983
"Powers of courts to order hospital admission or guardianship
(1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law [. . .. . .], or is convicted by a magistrates' court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified.
(2) The conditions referred to in subsection (1) above are that—
(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from [mental disorder] and that either—
(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and [appropriate medical treatment is available for him; or]
(ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act; and
(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section."
An order under s 37 is described as a "hospital order": s 37(4). A hospital order may be accompanied by a "restriction order" under section 41. Such an order, imposing special restrictions relating to the manner and period of detention in hospital, may be imposed by the Crown Court, where –
"… it appears to the court having regard to the nature of the offence, the antecedents of the offender, and the risk of his committing further sentences if set at large, that it is necessary for the protection of the public from serious harm so to do…" (s 41(1))
"Power of higher courts to direct hospital admission.
(1) This section applies where, in the case of a person convicted before the Crown Court of an offence the sentence for which is not fixed by law—
(a) the conditions mentioned in subsection (2) below are fulfilled; and
(b) ..., the court considers making a hospital order in respect of him before deciding to impose a sentence of imprisonment ("the relevant sentence") in respect of the offence.
(2) The conditions referred to in subsection (1) above are that the court is satisfied, on the written or oral evidence of two registered medical practitioners—
(a) that the offender is suffering from mental disorder;
(b) that the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and
(c) that appropriate treatment is available for him.
(3) The court may give both of the following directions, namely -
(a) a direction that, instead of being removed to and detained in prison, the offender be removed to and detained in such hospital as may be specified in the direction (in this Act referred to as a 'hospital direction'; and
(b) a direction that the offender be subject to the special restrictions set out in section 41 above (in this Act referred to as a 'limitation direction'."
"Removal to hospital of persons serving sentences of imprisonment, etc.
(1) If in the case of a person serving a sentence of imprisonment the Secretary of State is satisfied, by reports from at least two registered medical practitioners—
(a) that the said person is suffering from [mental disorder]; and
(b) that the mental disorder from which that person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and
(c) that appropriate medical treatment is available for him];
the Secretary of State may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient so to do, by warrant direct that that person be removed to and detained in such hospital . . . as may be specified in the direction; and a direction under this section shall be known as "a transfer direction".
(3) A transfer direction with respect to any person shall have the same effect as a hospital order made in his case."
Where a transfer direction is made, the Secretary of State may make a "restriction direction" imposing the same "special restrictions" as under section 41: s 49. By section 50, where following a transfer direction and restriction direction under 47 (or the equivalent under s 45A) the Secretary of State is notified by the responsible clinician before his "release date" that he no longer requires treatment, he may direct his remittal to prison for the sentence to continue as before. For this purpose "release date" is defined as -
"…the day (if any) on which he would be entitled to be released (whether unconditionally or on licence) from any prison or other institution in which he might have been detained if the transfer direction had not been given; and in determining that day there shall be disregarded—
(a) any powers that would be exercisable by the Parole Board if he were detained in such a prison or other institution, and
(b) any practice of the Secretary of State in relation to the early release under discretionary powers of persons detained in such a prison or other institution." (s 50(3), emphasis added)
The Social Security legislation
i) Non means-tested benefits Under the Social Security (General Benefit) Regulations 1982 reg 2(3) the disqualification in respect of non-means tested benefits does not apply to a person detained in a hospital as suffering from mental disorder, unless detained under section 45A or 47. That exception in turn is subject to regulation 2(4), which provides:
"(4) where as respects a person … a certificate given by or on behalf of the Secretary of State…. shows 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 said conditions shall be deemed not to be satisfied in relation to that person as from the day next following that date." (emphasis added)
ii) Income support By the Income Support General Regulations 1987, as amended by the HIP Regulations, the "applicable amount" is reduced to nil in respect of a person detained under section 45A or 47, but -
"not if his detention continues after the date which the Secretary of State certifies… would have been the earliest date at which he could have been released in respect of, or from, the prison sentence, if he had not been detained in hospital." (Sch 7 para 2A, as substituted by HIP regulations reg 4(5))
The construction issue turns principally on the difference between the two highlighted phrases.
The discrimination issue
"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
It is well-established that for article 14 to apply, the claim must be "within the ambit" of one or more of the other Convention rights. The "right" relied on in this case is the right to "peaceful enjoyment of possessions" under article 1 of the First Protocol.
"54. In cases, such as the present, concerning a complaint under art 14 in conjunction with [A1P1] that the applicant has been denied all or part of particular benefit on a discriminatory ground covered by art 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question … Although [A1P1] does not include the right to receive a social security payment of any kind, if a state does decide to create a benefits scheme, it must do so in a manner which is compatible with art 14."
"The scope of this margin will vary according to the circumstances, the subject-matter and the background… As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention… On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy… Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature's policy choice unless it is 'manifestly without reasonable foundation'" (para 52)
The judge's reasoning
"I am not able to accept that simple analogy because the claimants in this case are prisoners and patients suffering from serious mental illness. Whilst justification in this area does not call for the very weighty reasons referred to by Lady Hale, in my judgment the weight of the justification needed in this context is more than the Strasbourg Court would look for in a case concerned with the payment of ordinary social welfare benefits." (para 21)
"… the simple point being made is that transferred patients have all been sentenced to a term of imprisonment by a Court, by contrast with those made subject to a hospital order or those who are civil detainees. That means that in such cases a Court has determined a minimum period of loss of liberty in respect of each of the categories of transferred patient represented by the claimants, amongst whom there are prisoners serving life sentences, determinate sentences and who are subject to section 45A directions. To that extent the prisoners have been found to be culpable for their crimes. In cases of non-determinate sentences, the Court has additionally decided that the loss of liberty should endure until it is safe to release the person concerned back into society. The Secretary of State has decided as a matter of policy that whilst a prisoner is deprived of his liberty in consequence of a sentence of imprisonment, he shall be treated for benefits purposes in exactly the same way wherever he happens to be detained.
Thus, for the purposes of benefits it matters not whether the detainee is in a penal establishment, a psychiatric hospital or an ordinary hospital. A prisoner may be transferred to an ordinary hospital if he needs treatment for a physical illness, condition or injury. The question is not whether he is being punished at any given moment but whether he remains 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." (paras 26-7)
He thought that other points being made by the Secretary of State added nothing to the central argument.
"The threat of punishment would have no deterrent effect, one of its main objects. The object of retribution would be repugnant to the conscience of the ordinary citizen. Accordingly, punishing such a defendant with ordinary criminal sanctions would be both inappropriate and pointless." (para 24)
I agree with the judge that such considerations are of little relevance in cases such as the present. 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. Furthermore, their time spent in hospital is treated as time spent towards their sentence.
"It is submitted that the justification advanced by the Respondent for depriving transferred prisoners of benefits do not hold good for post-tariff lifers. All life sentence prisoners have a 'tariff' or minimum term that they must serve before they become eligible for release by the Parole Board, representing the period of imprisonment necessary for the purposes of retribution and deterrence. Once they have served their tariff the only justification for continuing detention is that they remain 'dangerous'; punishment is no longer the rationale and cannot be the basis of withdrawing their benefits. If they are no longer dangerous they are entitled to be released. For a transferred lifer who has passed his tariff the risk they pose due to their mental disorder cannot be distinguished from the risk that they pose as a result of their character and antecedents. Moreover the likelihood is that they will be rehabilitated through the mental health system rather than through the prison system and will never return to prison. Their position is materially indistinguishable – for the purposes of their entitlement to benefits - from that of a patient convicted of a similar serious offence but who is given a s 37/41 order."
The construction issue
i) Non-means tested benefits The "earliest date" on which he "would have been expected to be discharged from detention pursuant to the said sentence…" (General Benefit Regulations reg 2(4))
ii) Income-benefit The "earliest date" at which he "could have been released in respect of, or from, the prison sentence…" (Income Support General Regulations Sch 7 para 2A, as substituted by HIP regulations reg 4(5))
For simplicity I shall refer to these respectively as the "2(4) formula" and the "2A formula"
i) Their reading would create difficulties in respect of prisoners on determinate sentences. It is common ground that for them the relevant "earliest date", under both formulae, is the date when they are entitled to be released (typically the mid-point of the sentence). Yet, if account can be taken of the possibility of discretionary release, there would be no certainty, since the Secretary of State has many powers to release prisoners in advance of their normal entitlement (para 40-1).
ii) It would lead to the odd results. For example, the Parole Board might have considered the case and refused release, perhaps on more than one occasion. It would be surprising if the Secretary of State were then required to certify a date on which –
"he could not have been released because the Parole Board had not authorised his release, or had denied it." (para 42)
iii) It would mean that regulations would fail to achieve the uniformity which was apparently intended (para 43), for which purpose he was entitled to have regard to the explanatory memoranda (para 47).
The appellants' submissions
i) The proper approach is to apply the plain meaning of the statutory words of the statute within their context; if that is in doubt, one should approach interpretation on the basis that the more natural interpretation is to be preferred, and that fundamental rights should not be removed otherwise than expressly or by necessary implication.
ii) On their plain meaning, the relevant words refer to those who are, or become, eligible for release during the period of their detention under the Mental Health Act, including life sentence prisoners.
iii) The Secretary of State's interpretation involves a meaning which results in deprivation of a "personal possession" for the purposes of A1P1; such an interpretation should be avoided if there is an alternative that does not have that effect.
iv) The claimant's proposed interpretation does not give rise to absurd practical consequences and is not at odds with the underlying statutory purpose of the provision seen in its proper context.
i) The 2(4) formula, as the judge noted (para 20-1), goes back to a 1960 report of the National Insurance Advisory Committee (the NIAC). Previously, patients detained in mental hospitals pursuant to orders made in criminal proceedings were ineligible for welfare benefits, but the Committee recommended that the disqualification would extend only until their sentence would otherwise come to an end: that is, on certification by the Secretary of State that a prisoner had passed –
"the earliest date on which [he] would have been expected to be discharged from detention … if he had not been transferred to hospital…"
ii) The 2A formula is new to the HIP regulations in 2005. As compared to (i), "would have been expected to be" is changed to "could have been…" and "discharged from detention pursuant to the sentence" is changed to "released in respect of, or from the prison sentence…"
iii) The s 50 formula is distinguishable in three obvious ways: (a) it refers to "entitlement", rather than expectation or possibility; (b) it refers to release from "prison" rather than release pursuant to, or in respect of, or from, a "prison sentence"; (c) it specifically excludes the relevance of release by direction of the Parole Board.
"What it does is to provide a yardstick for the period of time for the disqualification to last. It is more generous than the actual length of the sentence and requires an officer acting for the Home Secretary… to provide a certificate indicating the earliest date the individual concerned would have been expected to have been discharged had he not been transferred to hospital." (para 19)
The same document referred to the corresponding amendment to the HIP Regulations in respect of Income Support:
"Paragraph (5)(b) provides for a nil applicable amount of income support for the same people referred to in connection with the exceptions in regulation 2(3) General Benefit Regulations who are subject to a prison sentence and are then detained in hospital under the Mental Health Act 1983…" (para 23)
The December 2005 Memorandum was to similar effect. The purpose was said to be "to remove anomalies by aligning the rules across all benefits".
Relevance of the explanatory memoranda
"15 The use that courts may make of explanatory notes as an aid to construction was explained by Lord Steyn in R (Westminster City Council) v National Asylum Support Service  I WLR 2956, paras 2-6; see also R (S) v Chief Constable of the South Yorkshire Police  I WLR 2196, para 4. As Lord Steyn says in the National Asylum Support Service case, explanatory notes accompany a Bill on introduction and are updated in the light of changes to the Bill made in the parliamentary process. They are prepared by the government department responsible for the legislation. They do not form part of the Bill, are not endorsed by parliament and cannot be amended by Parliament. They are intended to be neutral in political tone; they aim to explain the effect of the text and not to justify it.
16 The text of an Act does not have to be ambiguous before a court may be permitted to take into account explanatory notes in order to understand the contextual scene in which the Act is set: see the National Asylum Support Service case, para 5. In so far as this material casts light on the objective setting or contextual scene of the statute, and the mischief to which it is aimed, it is always an admissible aid to construction. Lord Steyn, however, ended his exposition of the value of explanatory notes as an aid to construction by saying  I WLR 2956, para 6:
'What is impermissible is to treat the wishes and desires of the Government about the scope of the statutory language as reflecting the will of Parliament. The aims of the Government in respect of the meaning of clauses as revealed in explanatory notes cannot be attributed to Parliament. The object is to see what is the intention expressed by the words enacted.'"
"… In all cases the object is to see what is the intention expressed by the words used. But, from the imperfection of language, it is impossible to know what that intention is without inquiring farther, and seeing what the circumstances were with reference to which the words were used, and what was the object, appearing from those circumstances, which the person using them had in view; for the meaning of words varies according to the circumstances with respect to which they were used."
"If there is nothing to modify, alter or qualify the language which a statute contains, the words and sentences must be construed in their ordinary and natural meaning." (Halsbury's Laws Statutes Vol 44(1) Reissue para 1487; cited by Bennion Statutory Interpretation 5th Ed p 549, as a statement of the "plain meaning" rule)
That remains the governing principle, at least in the context of domestic law, unless the natural meaning as so ascertained produces absurdity.
"… an explanatory note may be referred to as an aid to construction where the statutory instrument to which it is attached is ambiguous" (Coventry and Solihull Waste Disposal Co Ltd v Russell  1 AllER 97, 107g)
"Since 1999, explanatory memoranda ("EMs") have been produced and laid before Parliament by the relevant department in relation to some statutory instruments ("SIs") made by Ministers of that department.
Originally, the practice was to produce EMs in relation to affirmative resolution SIs only. However, shortly after its establishment in 2005, the House of Lords Select Committee on the Merits of Statutory Instruments requested that all SIs laid before Parliament should be accompanied by an EM. The Government acceded to the request and, for the past 4 years, the practice has been to produce an EM for every SI laid before Parliament.
An EM sets out a brief statement of the purpose of the instrument and provides information about its policy objectives and implications. Although it is for Members of Parliament in general, it is aimed in particular at the committees that scrutinise statutory instruments, such as the Joint Committee on Statutory Instruments and the House of Lords Select Committee on the Merits of Statutory Instruments. The EM is published, along with the SI to which it relates, on the website of the Office of Public Sector Information."
(I note in passing that there has to this extent been a change in the practice since the 1991 order, to which Lord Hope was referring in the Coventry Waste case)
Construing the statutory language
Lord Justice Patten :
Lord Justice Waller :