D & M, R (on the application of) v Secretary of State for Work & Pensions

For article 14 purposes, welfare benefits fall within the ambit of the right to peaceful enjoyment of possessions. The relevant comparison may be between prisoners and non-prisoners, rather than between disabled and non-disabled persons. In social policy, different benefit treatment is lawful unless it is manifestly without reasonable foundation. Mental vulnerability does not itself require a stricter test where the distinction is based on continuing imprisonment.

For income support, the phrase requiring the earliest date when a prisoner could have been released refers, for a post-tariff lifer, to the date when the Parole Board first became able to direct release. The differently worded formula in the Social Security (General Benefit) Regulations 1982 produces no equivalent date. Explanatory memoranda may illuminate context but cannot rewrite statutory language.

These linked appeals concerned the welfare-benefit treatment of convicted prisoners detained in psychiatric hospitals under the Mental Health Act 1983. One appeal challenged the withdrawal of income-related benefits from patients subject to sections 45 A and 47, compared with civil patients and patients detained under section 37. The challenge relied on article 14 of the Convention read with article 1 of the First Protocol.

The other appeal concerned the construction of the amended income-support provision in the Social Security (Hospital In-Patients) Regulations 2005. The issue was whether a post-tariff life prisoner had an earliest date on which he could have been released. Burnett J dismissed the general discrimination claims and rejected the proposed construction.

1. Discrimination. The Court of Appeal dismissed the appeal on the discrimination issue and upheld Burnett J’s reasoning. A non-contributory, means-tested benefit is a possession for the purposes of article 14 read with article 1 of the First Protocol. The article 14 inquiry asks whether there is a difference in treatment and, if so, whether it is justified.
2. Prisoners were accepted as having the relevant other status. However, the distinction was between prisoners and non-prisoners, not between disabled and non-disabled persons. The court applied the wide margin allowed to the state in social and economic policy, as described in R (RJM) v Department of Work and Pensions [2009] 1 AC 311 and Stec v United Kingdom (2006) 43 EHRR 1017. The appropriate standard was whether the policy was manifestly without reasonable foundation.
3. The distinction was justified. Patients subject to sections 45 A and 47 had been sentenced to imprisonment and remained subject to that sentence, even while detained in hospital. Their hospital detention counted towards the sentence, and they could be returned to prison. The purpose of punishment was therefore not decisive. The same conclusion applied to post-tariff lifers. Once the prisoner/non-prisoner distinction was accepted as legitimate, its application to them was not irrational. Common-law equal-treatment and reasonableness principles added nothing.
4. Construction. The appeal on the construction issue was allowed. The formula in regulation 2(4) of the Social Security (General Benefit) Regulations 1982 asks what would have been expected pursuant to the sentence. A life sentence as such creates no expectation of release, so there is no relevant earliest date for a post-tariff lifer under that formula.
5. The amended income-support formula asks when release could first have occurred in respect of, or from, the prison sentence. Unlike section 50 of the Mental Health Act 1983, it does not exclude the Parole Board’s powers. Its natural meaning therefore refers to the end of the tariff, when the Parole Board first became able to direct release. The explanatory memoranda confirmed the policy of alignment but could not displace the statutory wording. The discrimination appeal was dismissed and the construction appeal was allowed.

• Court of Appeal (Civil Division) dismissed the appeal concerning discrimination and allowed the appeal concerning construction.
• Administrative Court Burnett J dismissed the general discrimination claims and rejected the argument that the tariff expiry date governed the income-support provision.