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Lifers transferred to mental hospitals can claim benefits

9 February 2010

Convicted criminals jailed for life, who are later transferred to mental hospitals, can claim benefits once their tariff has ended, the Court of Appeal has ruled.

The court rejected the argument that all convicted prisoners transferred to mental hospitals should be able to claim benefits.

Delivering judgment in R (on the application of RD and PM) and R (on the application on EM) [2010] EWCA Civ 18, Lord Justice Carnwath said claimants such as RD and PM were “by definition people who have been accepted as having sufficient mental capacity to bear criminal responsibility for their acts, and have been sentenced accordingly.

“Furthermore, their time spent in hospital is treated as time spent towards their sentence.”

Carnwath LJ said that although article 14 of the ECHR was engaged (freedom from discrimination) the distinction between non-prisoners transferred to hospitals under section 37 of the Mental Health 1983, who receive benefits, and prisoners transferred under sections 45A/47, who do not, was justifiable.

“The line has to be drawn somewhere,” he said. “Once it is accepted that the distinction between prisoners and non-prisoners is in itself justifiable, I see nothing irrational in the line drawn in this case.”

However, Carnwath LJ said the question of whether lifers transferred to mental hospitals should be entitled to benefits after the expiry of their tariff depended on interpretation of the Social Security (Hospital In-Patient) Regulations 2005.

He said the key to construing the regulations was finding a specific date from which benefits must be paid.

“One is therefore looking for a specific date, which can naturally be described as the ‘earliest date’ when it becomes possible (whether or not expected) for a lifer to be released ‘from or in respect of’ his sentence.”

He said he found himself “driven to accept” the claimant’s submission that the natural reading of the provision was as a reference to the date at which the Parole Board was first able to direct release, at the end of the tariff period.

“I appreciate that this may not accord with the departmental intention, and may give rise to some anomalies, as the judge said. However, it does not produce an absurd result. If the secretary of state is unhappy with the result, it is open to him to promote an appropriate amending order.”

Lord Justices Waller and Patten agreed.

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