EM & Ors, R (on the application of) v Secretary of State for Work and Pensions

Different treatment of prisoners transferred to psychiatric hospitals and patients detained under hospital orders is not inherently discriminatory. The relevant comparison is whether the groups differ sufficiently to justify the difference in treatment. A prisoner remains subject to the sentence imposed by the criminal court, wherever the sentence is served. That provides a relevant difference for benefits purposes. The same reasoning applies to prisoners detained under hospital and limitation directions. However, a policy-maker must separately consider a closed category of technical lifers who are treated in other respects as hospital-order patients and cannot be returned to prison. Failure to consider that category, and failure to provide a separate justification for its treatment, renders the policy unlawful as applied to it.

The claimants were prisoners serving determinate or life sentences who had been transferred to psychiatric hospitals under the Mental Health Act 1983, or detained there under hospital and limitation directions. The Social Security (Hospital In-Patients) Regulations 2005 deprived them of Income Support and State Pension Credit during the relevant period, while patients detained under hospital orders or as civil detainees remained eligible.

The claimants challenged the regulations under section 7 of the Human Rights Act 1998, relying on Article 1 of Protocol 1 read with Article 14 of the Convention, irrationality, equality principles and, for one claimant, legitimate expectation. The central issues were whether the general distinction was justified and whether particular categories required separate treatment.

1. General distinction. The relevant Article 14 question was whether there was enough of a relevant difference between transferred prisoners and hospital-order or civil detainees to justify different treatment. The court applied the approach in R (Carson) v Work and Pensions Secretary [2006] 1 AC 173. A prisoner transferred to hospital remains subject to the criminal sentence and would otherwise be detained in prison. That distinction was sufficient to justify treating transferred prisoners as prisoners for benefits purposes.
2. The issue was not whether detention was presently punitive, or whether every patient was equally culpable. The material consideration was the continuing sentence and the minimum period of loss of liberty determined by the criminal court. The additional arguments concerning legislative consistency, administrative efficiency, public confidence and bright-line rules did not themselves establish justification, although public support for the policy deserved respect.
3. The same conclusion applied to post-tariff lifers, mandatory life prisoners, automatic life sentence prisoners and persons detained under section 45A of the Mental Health Act 1983. Each remained subject to a prison sentence, and in the section 45A and automatic-life cases the sentencing court had chosen imprisonment rather than a hospital order.
4. The position of technical lifers was different. That closed administrative category had historically been treated as equivalent to hospital-order patients, its members could not be returned to prison, and the policy-maker had failed to consider it separately when formulating the regulations. The general justification for treating transferred prisoners as prisoners did not adequately address that category. The Secretary of State had therefore failed to take a material consideration into account.
5. The legitimate-expectation claim also failed because the necessary indicia identified in R (Bhatt Murphy) v The Independent Assessor were absent. The general challenges failed, but KS’s application for judicial review was allowed. The claims of all other claimants were dismissed; further submissions on relief were reserved.