Mental Health - April 2010
Feeling the benefit
A life sentence-prisoner whose tariff expires will be
entitled to welfare benefits, even if he is detained under the
Mental Health Act at the time.
The Court of Appeal has recently looked at the
benefits entitlements of some Mental Health Act (MHA) patients. The
patients concerned are those detained under sections 45A and 47
whose sentence ‘tariff’ has already expired, and the chief question
was whether the Social Security (Hospital Inpatient) Regulations
2005 treat them less favourably than other patients, including
those detained under a mere Hospital Order (R (RD and
others) v Secretary of State for Work and Pensions [2010]
EWCA Civ 18).
The Court held that the regulations had been
drafted with the intention of excluding serving prisoners from
means-tested benefits. The distinction between section 37-patients
and other patients detained under hospital orders is that in the
case of the former, the hospital order is an alternative to
imprisonment and they cannot be transferred to prison when their
treatment is at an end. Consequently, the regulations do not treat
those subject to section 37 as prisoners, but as patients. The
position is different where a patient has been placed under section
45A of the MHA or transferred to hospital under section 47: he may
be transferred to prison and, the court held, is therefore to be
regarded as a prisoner for all purposes, including that of benefit
entitlement.
But what of post-tariff life-sentence
prisoners who are detained in hospital. Given that the tariff
portion of their sentences has expired, are they entitled to
welfare benefits? It seems they are.
The starting-point is regulation 2(4) of the
Social Security (General Benefit) Regulations 1982, which states
that a prisoner will become entitled to benefits at the date upon
which he might have expected to be discharged from detention. (In
the 2005 regulations, paragraph 2A of Schedule 7 says much the same
thing.) Although a ‘lifer’ can have no expectation of
complete discharge, he might be released from custody once he has
become eligible for parole. But if at that point the prisoner is
receiving treatment in hospital under the MHA, he will only be able
to apply for parole when (and if) he is returned to prison. Does
that mean that he is to be denied benefits until that point?
The court said not. It held that a patient’s eligibility for
release would arise when the Parole Board could first direct his
release - in other words, at the end of the tariff period.
Consequently, a prisoner would be eligible for means-tested
benefits once his tariff had expired, even though he was detained
in hospital under the MHA at the time.
This decision is unlikely to affect very many
MHA-patients, but those to whom it does apply are likely to feel a
significant benefit.
GeorginaRowley,
Associate
Weightmans LLP
The full judgment in this case may be found
here.