14 January 2011

FOURTH SECTION
Application nos. 40356/10 and 54466/10
by S.S., F.A., H.B., E.M. and A.L.F. against the United Kingdom
lodged on 19 July 2010 and 9 September 2010

STATEMENT OF FACTS
THE FACTS
The first applicant, SS, is a British national who was born in 1978 and lives in Sheffield. He is represented before the Court by Mr P. Mahy of Howells Solicitors, a lawyer practising in Sheffield.
The second applicant, FA, the third applicant, HB, the fourth applicant, EM, and the fifth applicant, ALF, are British nationals who were born in 1967, 1948, 1946 and 1971 respectively and live in Berkshire. They are represented before the Court by Ms M. Paterson of Scott Moncrieff Harbour and Sinclair, a lawyer practising in London.
A.  The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants are all convicted, sentenced prisoners who have served, or are serving, part of their sentences in psychiatric hospitals by virtue of action taken under the Mental Health Act 1983 (“the 1983 Act”).
For the purposes of this case, persons detained in psychiatric hospitals can fall into one of four categories: “civil patients”, who are detained under the civil provisions of the 1983 Act; convicted criminals who were directed to a psychiatric hospital pursuant to a hospital order imposed by the criminal courts under section 37 of the 1983 Act instead of being sentenced (“section 37 patients”); convicted, sentenced prisoners who were made subject to a hospital order and limitation direction under section 45A of the 1983 Act at the time they were sentenced (“section 45A patients”): and convicted, sentenced prisoners who were transferred from prison to psychiatric hospital under section 47 of the 1983 Act (“section 47 patients”).
The first, second, third and fourth applicants were section 47 patients. The fifth applicant was a section 45A patient. Further details are set out in Annex 1.
Convicted, serving prisoners are not entitled to the majority of non means-tested welfare benefits or the key means-tested benefits. However, prior to the Social Security (Hospital In-Patients) Regulations 2005 (“the 2005 Regulations”) which came into force on 10 April 2006, civil patients, section 37 patients and section 45A patients received both means‑tested and non means-tested benefits while in hospital, although the means-tested benefits were “down-rated” to a flat rate for personal expenses (“the pocket money rate”) after a patient had been in hospital for fifty-two weeks. By comparison, section 47 patients were disqualified from receiving non-means-tested benefits. Although they were entitled to some means‑tested benefits (such as Income Support, Job Seekers Allowance or Pension Credits) from the moment they were transferred to hospital, in the case of Income Support this was at the downrated or “pocket money” rate.
Once the 2005 Regulations came into force on 10 April 2006 civil patients and section 37 patients became entitled to the full amount of means‑tested benefits even after they had been in hospital for fifty-two weeks. Section 45A and section 47 patients, however, lost any entitlement to income-related benefits for the duration of their prison sentences although the Department of Health could make discretionary payments at the same level as the former “pocket money” rate.
The first, second and third applicants brought judicial review proceedings under section 7 of the Human Rights Act 1998, in which they relied on Article 1 of Protocol No. 1 read together with Article 14 of the Convention. They contended that the 2005 Regulations were discriminatory and therefore unlawful. They further claimed that the provision of benefits to some persons detained in psychiatric hospitals but not to others violated the common law principle of equality.
In the proceedings before the Administrative Court, the Secretary of State for Work and Pensions accepted that the case fell within the ambit of Article 1 of Protocol No. 1 and thus engaged Article 14 of the Convention. The Administrative Court found that for the purposes of Article 14, the relevant difference in treatment was between patients who were prisoners and patients who were not. It was accepted that this amounted to “other status” and that the applicants therefore qualified for protection under Article 14. However, in assessing whether the difference in treatment was justified the court did not accept that the State should be afforded “a particularly weighty margin of appreciation”. Rather, in view of the fact that the case concerned prisoners and persons suffering from serious mental illness, it held that the weight of the justification needed was more than that which would normally be required in a case concerned solely with the payment of social welfare benefits.
In relation to the question of justification, the court held that:
“... the simple point being made is that transferred patients have all been sentenced to a term of imprisonment by a Court, by contrast with those made subject to a hospital order or those who are civil detainees. That means that in such cases a Court has determined a minimum period of loss of liberty in respect of each of the categories of transferred patient represented by the claimants, amongst whom there are prisoners serving life sentences, determinate sentences and who are subject to section 45A directions. To that extent the prisoners have been found to be culpable for their crimes. In cases of non-determinate sentences, the Court has additionally decided that the loss of liberty should endure until it is safe to release the person concerned back into society. The Secretary of State has decided as a matter of policy that whilst a prisoner is deprived of his liberty in consequence of a sentence of imprisonment, he shall be treated for benefits purposes in exactly the same way wherever he happens to be detained.
Thus, for the purposes of benefits it matters not whether the detainee is in a penal establishment, a psychiatric hospital or an ordinary hospital. A prisoner may be transferred to an ordinary hospital if he needs treatment for a physical illness, condition or injury. The question is not whether he is being punished at any given moment but whether he remains subject to the sentence of the Court. Were it not for the mental disorder, the person concerned would be in prison serving the sentence imposed by the Court.”
The Administrative Court therefore dismissed the applicants’ claims both generally and in respect of the specific categories into which they fell.
The applicants were granted leave to appeal to the Court of Appeal. In a judgment dated 27 January 2010, the Court of Appeal dismissed the applicants’ appeals.
The court agreed with the Administrative Court that the applicants were entitled to the protection of Article 14 read together with Article 1 of Protocol No. 1. However, it held that the issue of whether benefits should be paid to convicted prisoners in psychiatric hospitals was essentially a matter of social policy, and the decision of the State was to be respected unless it was irrational or manifestly without reasonable foundation.
In this regard, Carnwath LJ observed that the applicants had been deemed to have sufficient mental capacity to bear criminal responsibility for their acts and were sentenced accordingly. Consequently, their time spent in hospital was treated as time spent towards their sentence. The court also distinguished the case of Glor v. Switzerland, no. 13444/04, ECHR 2009‑..., noting that in the present case the difference in treatment was not on the ground of disability or level of disability, and accordingly the appropriate test was not affected by the fact that the applicants were mentally vulnerable.
The court acknowledged that the practical differences between the detention regimes seemed narrower in the case of post-tariff lifers. However, it observed that a line had to be drawn somewhere and once it was accepted that the distinction between prisoners and non-prisoners was in itself justifiable, there was nothing irrational about where the line had been drawn in the present case.
At the same time, in the related proceedings of R(D) v Department of Work and Pensions, the Court of Appeal was asked to consider whether the amendments made by the 2005 Regulations affected transferred life sentence prisoners who had served the tariff or minimum term of their sentence. It concluded that this particular group of patients were not affected by the 2005 Regulations and therefore remained entitled to benefits upon the expiry of their tariff. Following that judgment, however, the Government introduced the Social Security (Persons Serving a Sentence of Imprisonment Detained in Hospital) Regulations 2010 (“the 2010 Regulations”), which came into force on 25 March 2010. The purpose of the 2010 Regulations was to ensure that patients with a prison sentence of indeterminate length, whether a mandatory or discretionary life sentence or an indeterminate sentence for public protection, should not become eligible for Department of Work and Pensions’ benefits when the tariff part of the sentence expired. Consequently, a release date for benefit purposes could only be identified where the prison sentence was of a fixed length.
On 4 August 2010 the Legal Services Commission refused to extend the applicants’ public funding to cover an appeal to the Supreme Court. The applicants appealed against this decision but the appeal was dismissed on 8 September 2010.
B.  Relevant domestic law
1. Mental Health Act 1983
Section 37 of the Mental Health Act 1983 provides as follows:
“(1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law [...], or is convicted by a magistrates’ court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified.
...
(2) The conditions referred to in subsection (1) above are that—
(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from [mental disorder] and that either—
(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and [appropriate medical treatment is available for him; or]
(ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act; and
(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.”
An order under section 37 is described as a “hospital order”, which may be accompanied by a “restriction order” under section 41. Such an order, imposing special restrictions relating to the manner and period of detention in hospital, may be imposed by the Crown Court, where:
“... it appears to the court having regard to the nature of the offence, the antecedents of the offender, and the risk of his committing further sentences if set at large, that it is necessary for the protection of the public from serious harm so to do.”
Section 45A of the 1983 Act provides as follows:
“(1) This section applies where, in the case of a person convicted before the Crown Court of an offence the sentence for which is not fixed by law—
(a) the conditions mentioned in subsection (2) below are fulfilled; and
(b) ..., the court considers making a hospital order in respect of him before deciding to impose a sentence of imprisonment ("the relevant sentence") in respect of the offence.
(2) The conditions referred to in subsection (1) above are that the court is satisfied, on the written or oral evidence of two registered medical practitioners—
(a) that the offender is suffering from mental disorder;
(b) that the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and
(c) that appropriate treatment is available for him.
(3) The court may give both of the following directions, namely -
(a) a direction that, instead of being removed to and detained in prison, the offender be removed to and detained in such hospital as may be specified in the direction (in this Act referred to as a ‘hospital direction’; and
(b) a direction that the offender be subject to the special restrictions set out in section 41 above (in this Act referred to as a ‘limitation direction’).”
Section 47 of the 1983 Act provides that:
“(1) If in the case of a person serving a sentence of imprisonment the Secretary of State is satisfied, by reports from at least two registered medical practitioners—
(a) that the said person is suffering from [mental disorder]; and
(b) that the mental disorder from which that person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and
(c) that appropriate medical treatment is available for him];
the Secretary of State may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient so to do, by warrant direct that that person be removed to and detained in such hospital . . . as may be specified in the direction; and a direction under this section shall be known as "a transfer direction".
...
(3) A transfer direction with respect to any person shall have the same effect as a hospital order made in his case.”
Where a transfer direction is made, the Secretary of State may make a “restriction direction” imposing the same “special restrictions” as under section 41. Pursuant to section 50, if, following a transfer direction and restriction direction under section 47 (or the equivalent under section 45A), the Secretary of State is notified by the responsible clinician before a patient’s release date that he no longer requires treatment, he may direct his remittal to prison for the sentence to continue as before.
A transferred prisoner ceases to become liable to be returned to prison under section 50 once the restriction direction ceases to have effect. Pursuant to section 50(2), the restriction direction ceases to have effect on the patient’s “release date”.
For this purpose section 50(3) defines the “release date” as:
“...the day (if any) on which he would be entitled to be released (whether unconditionally or on licence) from any prison or other institution in which he might have been detained if the transfer direction had not been given; and in determining that day there shall be disregarded—
(a) any powers that would be exercisable by the Parole Board if he were detained in such a prison or other institution, and
(b) any practice of the Secretary of State in relation to the early release under discretionary powers of persons detained in such a prison or other institution..”
The expiry of a life sentence prisoner’s tariff or minimum term does not, therefore, constitute a release date for the purposes of section 50(2) and the restriction direction continues in effect indefinitely. Accordingly, a transferred life sentence prisoner may generally be returned to prison at any time, either before or after the expiry of the tariff. However, this is subject to two exceptions.
First, under section 74(1)(a) of the 1983 Act what is now the First Tier Tribunal (Health, Education and Social Care Chamber)(Mental Health) may recommend that a patient is released once he no longer fulfils the criteria for detention in prison and the Secretary of State must then decide whether to release him or remit him back to prison. However, under section 74(1)(b), the Tribunal may recommend that in the event he is not released, he should not be remitted back to prison.
Secondly, a transferred life sentence prisoner designated a “technical lifer” must be released through the hospital system rather than through the prison system. However, from 2 April 2005, life sentence prisoners who have been transferred to psychiatric hospital for treatment were no longer considered for technical lifer status.
2. The social security legislation
Section 113(1) of the Social Security Contributions and Benefits Act 1992 imposes a general disqualification from receipt of the relevant benefits for a period during which a person is “undergoing imprisonment or detention in legal custody”, subject to exceptions provided by regulations.
Under regulation 2(3) of the Social Security (General Benefit) Regulations 1982 the disqualification in respect of non-means tested benefits does not apply to a person detained in a hospital as suffering from mental disorder, unless detained under sections 45A or 47. That exception in turn is subject to regulation 2(4), which provides that:
“where as respects a person ... a certificate given by or on behalf of the Secretary of State.... shows the earliest date on which that person would have been expected to be discharged from detention pursuant to the said sentence or order if he had not been transferred to a hospital or similar institution, the said conditions shall be deemed not to be satisfied in relation to that person as from the day next following that date.”
According to the Income Support General Regulations 1987, as amended by the 2005 Regulations, the “applicable amount” is reduced to nil in respect of a person detained under sections 45A or 47, but:
“not if his detention continues after the date which the Secretary of State certifies... would have been the earliest date at which he could have been released in respect of, or from, the prison sentence, if he had not been detained in hospital.”

COMPLAINT
The applicants complain that the removal of their entitlement to means‑tested benefits by the 2005 Regulations (and, in the case of the fourth and fifth applicants, who were post-tariff life sentence prisoners, by the 2010 Regulations) breached Article 14 of the Convention as it constituted unlawful discrimination in relation to their enjoyment of their rights under Article 1 of Protocol No. 1 on the ground of their status as transferred prisoners.

Annex 1
1. SS
SS was serving a twelve year prison sentence which expired on 27 November 2007. He was transferred to a psychiatric hospital on 20 May 2005. He was released in 19 November 2007. He received GBP 16.40 per week pocket money prior to his release. Following his release he received Income Support and Disability Living Allowance.
2. FA
FA was convicted of murder on 20 July 1995 and received a mandatory life sentence for murder with a tariff of twenty-two years which is due to expire in 2017. He was transferred to Broadmoor hospital under sections 47 and 49 of the 1983 Act on 9 January 1996. On 29 January 1996 he tried to kill a fellow patient and was convicted of attempted murder. Following the conviction he was made the subject of a hospital order under sections 37 and 41 of the 1983 Act. However, the transfer direction supersedes the section 37 order. Broadmoor has been paying FA GBP 17.90 per week pocket money from April 2008.
3. HB
In February 2001 HB received a mandatory life sentence for murder with a tariff of nineteen years. He was transferred to Broadmoor hospital under sections 47 and 49 of the 1983 Act on 17 October 2002 and from April 2008 he has been receiving GBP 17.90 per week pocket money.
4. EM
On 25 June 2003 EM received an automatic life sentence under section 109 of the Powers of Criminal Courts (Sentencing) Act 2000, for a second serious offence (Grievous Bodily Harm). His tariff was five years and twenty-three days. He was transferred under sections 47 and 49 of the 1983 Act to Thornford Park Hospital. He is currently being given GBP 21.00 per week pocket money.
EM passed his tariff date on 18 July 2008.
5. ALF
On 26 March 1999 ALF was convicted of rape, attempted rape and indecent assault. He was sentenced to life imprisonment with a ten-year minimum term, but with a hospital and limitation direction under section 45A of the 1983 Act. He is currently receiving pocket money of GBP 17.90 per week.
ALF’s tariff expired in late 2010.

QUESTIONS TO THE PARTIES
Insofar as their complaints concern the provisions of the Social Security (Persons Serving a Sentence of Imprisonment Detained in Hospital) Regulations 2010, have the fourth and fifth applicants exhausted domestic remedies?

Have the applicants suffered discrimination in the enjoyment of their Convention rights on the ground of their prisoner status and/or their disabilities contrary to Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1?