RD & Anor, R (on the application of) v Secretary of State for Work & Pensions

For the purposes of paragraph 2A of Schedule 7 to the Income Support (General) Regulations 1987, the earliest date on which a transferred prisoner could have been released is the first date on which the prisoner was legally entitled to release. It is not the earliest theoretical date on which release might have been considered.

A post-tariff life prisoner has no such release date because release remains dependent on a direction of the Parole Board. Accordingly, transfer to hospital under sections 47 and 49 of the Mental Health Act 1983 does not confer entitlement to Income Support. Explanatory memoranda and notes may assist construction where statutory language is unclear, particularly by identifying the legislative context and mischief, but they cannot substitute departmental policy for Parliament’s enacted words.

The claimants were post-tariff life prisoners transferred from prison to secure mental hospitals under sections 47 and 49 of the Mental Health Act 1983. Their applications for Income Support were refused. They sought judicial review of the Secretary of State’s interpretation of paragraph 2A of Schedule 7 to the Income Support (General) Regulations 1987.

The issue was whether the phrase referring to the earliest date on which a prisoner could have been released meant the expiry of a life prisoner’s tariff, or instead the first date on which the prisoner would have been legally entitled to release.

1. The applications were dismissed. Post-tariff life prisoners transferred to hospital under sections 47 and 49 of the Mental Health Act 1983 were not entitled to Income Support.
2. Paragraph 2A of Schedule 7 had to be construed in context. Read in isolation, its reference to the earliest date on which a prisoner “could have been released” admitted several possibilities, including a theoretical release date or a date requiring the Secretary of State to anticipate what the Parole Board would have decided. Neither party contended for those constructions.
3. The claimants’ construction gave insufficient weight to the words “if he had not been detained in hospital”. It also produced an anomalous result by treating a life prisoner as having reached a release date when the Parole Board had not authorised release, or had refused it.
4. The court considered the statutory scheme as a whole. Section 50(3) of the Mental Health Act 1983 defined a transferred prisoner’s release date by reference to the date on which he would have been entitled to release, disregarding Parole Board powers and discretionary early release. Life prisoners had no release date because they had no entitlement to release.
5. The different wording of paragraph 2A and regulation 2(4) of the Social Security (General Benefit) Regulations 1982 did not produce different results. Both provisions were directed to the point at which the prisoner would otherwise have become entitled to release. The explanatory memoranda and explanatory note supported that interpretation. Following the approach in R v Secretary of State for the Environment, Transport and the Regions, Ex parte Spath Holme Ltd [2001] 2 AC 349 and Flora v Wakom (Heathrow) Ltd [2007] 1 WLR 482, those materials could be used as contextual aids, but not as substitutes for Parliament’s intention expressed in the enacted words.