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Denying prisoners social fund payments not unlawful, appeal judges decide

10 August 2011

Prisoners denied access to social fund payments for funeral expenses because they are not receiving income support or other state benefits are not the victims of discrimination, the Court of Appeal has decided.

Faith Stewart, who was in prison when her son died, applied for a funeral payment from the social fund. Her application was refused because she was not in receipt of a ‘qualifying benefit’.

Delivering judgment in Stewart v Secretary of State for Work and Pensions [2011] EWCA Civ 907, Sir Henry Brooke said Stewart argued that this was unlawful discrimination against prisoners under article 14 of the ECHR.

“She says that this rule is directly discriminatory against prisoners because there is a difference in entitlement that is directly referable to their status as prisoners,” Sir Henry said.

Rejecting this argument, Sir Henry said: “The issue at the heart of this case is not whether prisoners are wrongfully denied access to income support for reasons referable to their status as prisoners, but whether they are wrongfully denied access to a funeral payment for such reasons. “The short answer is that they are not. If the status in question was not ‘prisoner’ tout seul, but ‘a prisoner who is not entitled to income support’ then the answer would be different.

“But being a prisoner tout seul did not exclude Ms Stewart from entitlement to all qualifying benefits, and it did not therefore exclude her from entitlement to a funeral payment. Being a prisoner was not ‘the reason why’ she was refused a funeral payment.”

On the issue of indirect discrimination Sir Henry said the DWP accepted that the funeral payment scheme was indirectly discriminatory in that it was more difficult for prisoners than non-prisoners to qualify.

He said the department justified this on the grounds that funeral payments were one-off expenses and it would be complex and costly to set up means-testing for them.

The DWP also argued that moving away from the requirement to be in receipt of a qualifying benefit could not be confined to prisoners alone and would need expensive new administrative machinery.

The department added that the state made alternative provision for those who do not qualify for social fund payments through the duty on local authorities to bury or cremate bodies under the Public Health (Control of Disease) Act 1984.

Sir Henry said the DWP argued that bringing in means-testing would “entail the creation of an entirely new scheme, where payments could be made to anyone of limited means, as opposed to those with an existing award of a qualifying benefit”.

Sir Henry said that if the new approach was restricted to prisoners alone, the decision would be “subjected to complaint from all the other excluded groups” and expose the court to the charge that it was “trespassing in territory in an area of social policy that is properly the preserve of the legislature”.

He went on: “Although the arguments may be slightly different for each group, in essence what is being demanded is a significant change from the simple scheme introduced by parliament in 1987, with significant ramifications in delay and expense, and in my judgment the secretary of state has established a rational justification for the discriminatory treatment of most of the prisoners who seek funeral payments.”

Sir Henry dismissed Stewart’s appeal. Lord Justice Rix and Dame Janet Smith agreed.

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Police & Prisons Funding