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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 [2010] EWCA Civ 18 (27 January 2010)
Cite as: 112 BMLR 140, [2010] EWCA Civ 18, (2010) 112 BMLR 140, [2010] 1 WLR 1782

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Neutral Citation Number: [2010] EWCA Civ 18
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

Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :

Vice-President of the Court of Appeal, Civil Division


D & M
- and -


Between :

- and –



(Transcript of the Handed Down Judgment of
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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



Crown Copyright ©

    Lord Justice Carnwath :


  1. 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.
  2. 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.
  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:
  4. "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

  5. 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.
  6. 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).
  7. 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:
  8. 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.

  9. 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:
  10. 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.

  11. 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:
  12. "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.)

  13. 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.
  14. This point was also explained in the SSAC Memorandum:
  15. "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) [2006] 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".]

  16. A further Explanatory Memorandum was presented by the Department when the regulations were laid before Parliament in December 2005 ("the December 2005 Memorandum"). The effect and purpose of the changes was explained in similar terms.
  17. The statutory provisions

    Mental Health Act 1983

    Section 37
    "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))
    Section 45A
    "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'."
    Section 47
    "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

  18. Section 113(1) of the Social Security Contributions and Benefits Act 1992 imposes a general disqualification from receipt of the relevant benefits for a period during which a person is "undergoing imprisonment or detention in legal custody", subject to exceptions provided by regulations. Exceptions relevant to this case are:
  19. 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 issue

  20. The starting point for the Claimants' submissions lies in the obvious similarities between the respective regimes under section 37 on the one hand and sections 45A and 47, on the other. 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; and in each case "special restrictions" can be applied. The principal difference is that under section 37 the order is made instead of sentence, whereas under section 45A or 47 the directions are made in addition to sentence. As Mr Gordon submits, 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. In short, Mr Gordon submits that there is no sufficient justification for treating them differently for benefits purposes.
  21. This argument is advanced both generally in relation to section 45A/47 patients as a group, but also specifically in respect of "post-tariff lifers".
  22. The law

  23. Article 14 provides:
  24. "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.

  25. At first sight it may be surprising that a non-contributory, means-tested welfare benefit conferred by administrative regulation is regarded as a "possession" for these purposes. However, that is now clearly established by Strasbourg and domestic law, as was recognised by the House of Lords in R (RJM) v Department of Work and Pensions [2009] 1 AC 311, following the judgment of the Strasbourg Court in Stec v United Kingdom (2005) 41 EHRR SE295.
  26. As Lord Neuberger noted, the decision of the Strasbourg court was dictated in part by policy considerations, including "the artificiality of distinguishing between contributory and non-contributory benefits" (para 30). He quoted from the judgment in Stec a passage ending with the following:
  27. "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."
  28. Later, in relation to the issue of "justification", he referred to the "wide measure of appreciation" accorded by the Strasbourg court to the state on matters of social policy (para 54), adding that this was an area where "the court should be very slow to substitute its view for that of the executive" (para 56). He referred to the later Grand Chamber decision on the merits in Stec (2006) 43 EHRR 1017, where the court said:
  29. "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

  30. The judge correctly started from the basis that, once it was accepted that the case falls within the ambit of one of the Convention rights, the issues under article 14 were, first, whether there was a difference of treatment under one of the relevant categories, and, secondly, if so whether that difference of treatment could be justified. As to the first, the relevant difference was between patients who are prisoners and those who are not. Although prisoners do not fall in any of the specified categories, it was accepted by Miss Demetriou for the Secretary of State that they had "other status" qualifying for protection under article 14 (a concession made by reference to the admissibility decision in Shelley v UK (2008) 46 EHRR SE16).
  31. It was common ground between the parties that this "status" was not one of those such as race, colour or ethnic origin, which call for "very weighty reasons" in justification (as explained in AL (Serbia) v Home Office [2008] 1 WLR 1434 per Baroness Hale at [29] to [35]). On the other hand the judge rejected Miss Demetriou's submission for the Secretary of State (based also on Shelley, and by analogy with RJM) that, because the subject matter concerned social welfare payments, the Strasbourg Court would afford the State "a particularly wide margin of appreciation". He said:
  32. "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)
  33. On the second issue, that of justification, the judge accepted some of Mr Gordon's criticisms of the specific points put forward by Mr Mackrell, but concluded that the issue should be looked at more broadly. He said:
  34. "… 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.

  35. He therefore dismissed the claims both generally and in respect of the specific categories, with one exception. The exception was that of so-called "technical lifers", which (as he explained earlier in the judgment) is "an administrative category which is now closed" and has been since April 2005. There is no appeal from his finding against the Secretary of State on that issue, and, because of the special features of that regime, I need say no more about it.
  36. Discussion

  37. Without disrespect to Mr Gordon's carefully developed submissions, which generally followed those made to the judge, I find myself in complete agreement with the judge's reasoning, as expressed in the passage I have quoted. I see no purpose in elaborating what he put so clearly and succinctly. I would add only two points.
  38. First, Mr Gordon made much of the point that the purposes of punishment have no relevance to a person of unsound mind. He referred for example to the judgment of the Privy Council in Phillip and John v R [2007] UKPC31, in which it was held that it would be wrong to punish an individual who was suffering from delusions which caused him to commit criminal offences:
  39. "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.

  40. Secondly, Mr Gordon relied on a very recent decision of the Strasbourg court in Glor v Switzerland, App 12444/04 30.4.09, as illustrating the importance attached by the court to protection of the rights of the physically or mentally disabled, and the correspondingly narrow "margin of appreciation" permitted to member states in that context. It seems to me, however, that the context was quite different, and the case turned on its unusual facts.
  41. The claimant had been ruled ineligible for military service because of his disability, but was at the same time subject to a special "service exemption tax", in effect because he was not disabled enough. For that purpose the disability had to be categorised as "major", which required that his physical or mental integrity should be affected as to at least 40%. The court commented on the importance of "the fight against discrimination towards disabled people", and the "significantly reduced" margin of appreciation for states wishing to establish "different legal treatment for disabled persons" (para 84). It held that this regime did not secure a "fair balance" between the interests of the community, and that the difference drawn between those disabled people who were exempted from the tax and those liable to pay it "does not appear to be reasonable in view of the principles prevailing in democratic societies" (para 96-7).
  42. In my view, the present case is very different. It is not a case of different treatment of the disabled, or of differences in the treatment between those of varying levels of disability. The difference is between prisoners and non-prisoners. With respect to the judge, I am not persuaded that the appropriate test is affected by the fact that those concerned are mentally vulnerable. There is no threat to their basic living or treatment needs. The debate concerns solely the claim to additional payments, allowed to civil patients to aid their rehabilitation. Whether and in what circumstances such payments should be made to prisoners seems to me essentially a matter of social policy, on which the decision of the state is to be respected, short of irrationality (or in the terms of Stec, a decision which is "manifestly without reasonable foundation").
  43. For completeness, I should add that, although Mr Gordon put his case in the alternative on the basis of common law principles of equal treatment and reasonableness, I think he accepted that this added nothing of substance to the human rights formulation. I would agree.
  44. I would therefore dismiss the appeal on the general issue, and uphold the judgment.
  45. I can deal very briefly with the specific discrimination issue relating to post-tariff lifers. I can best state the argument by quoting from Mr Gordon's skeleton:
  46. "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."
  47. I accept that the practical differences between the section 45A/47 and the section 37/41 regimes may seem even narrower when one is dealing with post-tariff lifers. However, as was recognised by Lord Neuberger social policy may be "something of a blunt instrument" (RJM para 54). The line has to be drawn somewhere. Once it is accepted that the distinction between prisoners and non-prisoners is in itself justifiable, I see nothing irrational in the line drawn in this case.
  48. The construction issue


  49. It is helpful to start by reminding oneself of the language of the two relevant regulations (referred to in para 11 above). The relevant phrases are:
  50. 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"

  51. The issue in the present case is the meaning of the 2A formula: "could have been released in respect of, or from, the prison sentence". Burnett J held that for a determinate sentence prisoner this is the date when he would have been released, disregarding the possibility of an earlier discretionary release, or the addition of time for bad behaviour; but that for a lifer there is no such date, because release is not a matter of right, but is always dependent on a positive decision of the Parole Board.
  52. He rejected the claimants' argument that for a lifer the appropriate date was the expiry of his tariff, because that was the day on which they could have been released if the Parole Board had so resolved (regardless of whether or not the Parole Board had in fact reached that conclusion, or would have been likely to do so). He did so on three principal grounds, as I understand him:
  53. 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

  54. For the appellants Mr Bowen helpfully encapsulated his submissions in four "core propositions", which I would summarise as follows:
  55. 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.


  56. The extent of argument both here and below suggests that the "plain meaning" is not as clear as Mr Bowen submits. I agree that, in choosing between the possible interpretations, it is right to have regard to the context, and to any other relevant aids to construction. I do not find much assistance in principles relating to interference with "fundamental rights", or "doubtful penalisation" (on which Mr Bowen also relies). I have already explained why in my view there is no unjustified discrimination under the human rights convention. Once that line of argument is disposed of, the decision whether to extend the right to income benefits to particular categories of claimants is a matter of pure policy, raising no issue of "penalisation".
  57. To my mind the main difficulty arises from the use of different statutory language to describe what apparently were intended to be analogous concepts. The natural starting-point is section 50 of the 1983 Act which describes the circumstances in which a prisoner who has been detained in hospital ceases to be subject to restrictions or eligible for return to prison. This is determined by reference to his "release date", defined as the "day" on which he "… would be entitled to be released from any prison…" disregarding any powers exercisable by the Parole Board, or any practice of the Secretary of State relating to early release. Under that formulation ("the s 50 formula"), there is no "release date" for lifers, even post-tariff, because their prospect or hope of release is wholly dependent on the powers of the Parole Board. It is noteworthy that the draftsman has thought it necessary specifically to exclude that avenue.
  58. The difficulty comes when one attempts to compare that reasonably clear language with the language of the rules relating to benefits, and to interpret the differences between them. One may note the derivations and the distinctive features of each phrase:
  59. 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.

  60. The Department's case, as I understand it, is that all these formulations have the same practical effect. That prompts the question why the same words were not used in each case. It seems surprising that Mr Chamberlain, even with access to the Department's records and expertise, was not able to offer us any persuasive explanation for the differences.
  61. One might expect to find help in an inquiry into the sentencing regimes applicable to the different categories of prisoners. They include both prisoners with determinate sentences, and those with life sentences. For determinate sentences, as the judge noted (para 20), under the 1960 wording the earliest date was in practice calculated by reference to the "maximum period of remission for good conduct available to a prisoner". The words "would have been expected pursuant to the sentence" were taken as referring to what was to be expected under the sentence itself, as opposed to any extensions for reasons such as bad conduct. As the judge also noted, this usage reflected the then understanding of the NIAC, who had seen the Regulations in draft.
  62. The sentencing regime has changed since 1960. Release dates are no longer determined by remission for good conduct. Instead, following the "requisite custodial period" (one-half of the sentence for a term of a year or more) the Secretary of State is under a duty to release the prisoner on licence, but "additional days" may be added for disciplinary sentences in prison (Criminal Justice Act 2003, s 244, 257). It might have been thought that the new wording of the 2A formula was designed in some way to reflect the change in sentencing practice. However, this would not explain why the wording of the 2(4) formula was left unchanged.
  63. In the 2005 SSAC Memorandum, following the statement (already quoted) that the policy is to apply the disqualification rule only where there is "a definite prison sentence against which to measure it", the Secretary of State commented on the effect of paragraph 2(4):
  64. "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".

  65. These documents make it reasonably clear therefore that there was a policy intention in 2005 to arrive at a position where the two provisions applied in the same way to the same people. It is common ground that, in relation to determinate sentences, they do have that effect. However, neither memorandum offers any explanation for the difference or wording between the two provisions.
  66. Relevance of the explanatory memoranda

  67. At this stage it may be helpful to note the discussion, before us and below, of the relevance of explanatory documents such as these. The judge referred by analogy to the principles applicable to Explanatory Notes relating to primary legislation. He cited Brooke LJ's summary of the caselaw in Flora v Wakom (Heathrow) Ltd [2007] 1 WLR 482:
  68. "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 [2002] I WLR 2956, paras 2-6; see also R (S) v Chief Constable of the South Yorkshire Police [2004] 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 [2002] 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.'"
  69. I would treat with caution, respectfully, Brooke LJ's observation that the legislative text need not be "ambiguous" before explanatory notes to be taken into account. This cannot be taken as meaning that, even if the statutory language is unambiguous, the court is free to rewrite it by reference to the explanatory notes. Brooke LJ was summarising comments of Lord Steyn (not adopted by the other members of the House) in the NASS case (para 5), where he drew an analogy with cases relating to contractual interpretation. However, the analogy cannot be taken too far. The context of a particular contract may show that the parties have used language in a particular way which departs from ordinary English usage; but the same inference cannot readily be drawn in relation to the language of legislation directed to the public as a whole.
  70. Lord Steyn's adherence to traditional principles is apparent from his citation of Lord Blackburn in River Wear Commissioners v Adamson (1877) 2 App Cas 743, 763:
  71. "… 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."
  72. The object therefore is to find "the intention expressed by the words used". The various aids to construction are designed to assist that task, not to supplant it. In other words:
  73. "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.

  74. In relation to explanatory notes, the orthodox position is, in my view, as stated by Lord Hope (in a speech agreed by the other members of the House, including Lord Steyn):
  75. "… 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 [2000] 1 AllER 97, 107g)
  76. It is to be noted that Lord Hope's comments were directed to the explanatory notes to an amending Order made under a statute. If anything the case for using such assistance may be even stronger in relation to a statutory instrument than a statute, at least where the explanatory material emanates from the Secretary of State who is directly responsible for making the instrument. Thus, the explanatory memoranda in the present case represent formal statements of the Secretary of State's intentions as the author of the relevant statutory instrument, given first to the main statutory consultee, and secondly to Parliament. Furthermore, unlike primary legislation, Parliament's function was limited to approving or rejecting the instrument, rather than amending it.
  77. The formality of the December 2005 Memorandum is apparent from the statement in its introduction that it was "laid before Parliament by Command of Her Majesty" (as to which see Erskine May, Parliamentary Practice (2nd ed., 2004), pp. 261-2.). At our request Mr Chamberlain provided a helpful note as to the status of such a document:
  78. "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)
  79. This discussion is of interest by way of background, and may be of relevance in future cases. However, for present purposes, I would emphasise that, even accepting the special significance of explanatory documents such as these, they remain only aids to construction, and no more. The essential task is to construe the language of the legislation, not that of the explanatory material. Thus in the present case, the memoranda may help to explain the background and general purpose of the regulations. They do nothing to explain why, contrary to the apparent intention to "align" the various rules, different wording was used in the two provisions. For the answer to this question, in the default of other aids, one is driven back to analysis of the words of the legislation.
  80. Construing the statutory language

  81. I come back therefore to comparison of the respective language of the two provisions. I start from the point that both are directed to a specific date - "the earliest date" -, which needs to be one which can be identified with reasonable certainty by the Secretary of State as the starting point for the entitlement to benefit. For this reason, one may exclude the general discretionary powers available to the Secretary of State to direct release on compassionate or other grounds, which are not fixed by reference to any particular date. So far as concerns post-tariff lifers, it is not in dispute that under the 2(4) formula, there is no relevant "earliest date". This I take to be because of the form of the question posed by the regulation. The issue is what would have been expected "pursuant to" the sentence. The words "pursuant to" imply causation. A life-sentence as such causes no expectation of release at any time.
  82. The 2A formula differs: the language is of possibility, not expectation; and the linking words "from, or in respect of", while implying a connection, are not necessarily words of causation. One is therefore looking for a specific date, which can naturally be described as the "earliest date" when it becomes possible (whether or not expected) for a lifer to be released "from or in respect of" his sentence. We are also entitled to bear in mind that, by contrast with the section 50 formula, the powers of the Parole Board are not specifically excluded. Approaching the matter in that way, I find myself driven to accept Mr Bowen's submission that the natural reading of the provision is as a reference to the date at which the Parole Board is first able to direct release, that is the end of the tariff period. I appreciate that this may not accord with the Departmental intention, and may give rise to some anomalies, as the judge said. However, it does not produce an absurd result. If the Secretary of State is unhappy with the result, it is open to him to promote an appropriate amending order.
  83. Conclusion

  84. For these reasons, I would dismiss the appeal on the discrimination issue, but allow it on the construction issue.
  85. Lord Justice Patten :

  86. I agree.
  87. Lord Justice Waller :

  88. I also agree.

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