RD & Anor, R (on the application of) v Secretary of State for Work & Pensions

This case concerns the question whether post-tariff life prisoners who have been transferred by the Secretary of State from prison to a mental health hospital under powers contained in sections 47 and 49 of the Mental Health Act 1983 [“the 1983 Act”] are entitled to Income Support whilst in such a hospital. It is common ground between the parties that the relevant statutory provisions do not entitle post-tariff lifers to Income Support whilst in prison but the Claimant submits that those provisions are couched in terms which dictate the contrary result whilst in a mental health hospital.

RD was convicted of murder and sentenced to a mandatory term of life imprisonment on 30 March 1983. His tariff was one of 12 years which expired on 6 December 1994. He had been convicted of further offences of robbery and possession of an imitation firearm but the sentences he received did not affect the expiry of his tariff. RD was transferred from HMP Parkhurst to Ashworth Hospital on 28 June 2004. He has been diagnosed as suffering with schizophrenia. Between 1994 and 2004 RD made a number of unsuccessful applications to the Parole Board for release.

PM was convicted on three counts of rape, two counts of assault, two counts of buggery and two counts of false imprisonment. He was sentenced to life imprisonment on 28 June 1989. He received a tariff of 10 years which expired on 1 March 1998. He was transferred from prison to Rampton Hospital on 14 January 2000 and has since been transferred to another unit. He, too, made an unsuccessful application to the Parole Board before he was transferred.

For so long as a prisoner transferred under Sections 47 and 49 of the 1983 Act remains in a mental health unit, he may not apply to the Parole Board for release. In the event of being returned to prison, the jurisdiction of the Parole Board would be resurrected.

Each of the Claimants made an application for Income Support in late 2006. The officials at Jobcentre Plus refused the applications because they considered that the Claimants’ entitlement to income support was excluded by the statutory provisions governing entitlement to that benefit. The general rule is that, except where regulations otherwise provide, a person is disqualified from receiving any benefit whilst he is serving a term of imprisonment or is subject to other legal custody.

Both Claimants wish to appeal the refusal to the Social Security Appeals Tribunal. However, as a result of a decision given by the Social Security Commissioner on 9 August 2007 in McNeill v Secretary of State such an appeal will not be entertained unless the Secretary of State first issues a certificate to each Claimant under paragraph 2A of Schedule 7 to the Income Support (General) Regulations 1987 (SI 1987 No 1967) [“the 1987 General Regulations”]. That provision was inserted into the 1987 General Regulations by the Social Security (Hospital In-Patients) Regulations 2005 SI 2005 No 3360) [“the HIP Regulations”] with effect from 10 April 2006. The HIP Regulations removed any entitlement to means-tested benefits (which includes Income Support) for prisoners transferred to hospital under section 47 of the Mental Health Act 1983, subject to a proviso found in paragraph 2A of Schedule 7 to the 1987 General Regulations. The Claimants contend that they are entitled to benefit from the proviso. Paragraph 2A identifies two classes of patient who are denied means-tested benefits before setting out the proviso. It is in the following terms:

“Patients

A Claimant who is detained, or liable to be detained, under-

(a)

Section 45A of the Mental Health Act 1983 (hospital and limitation directions) or Section 59A of the Criminal Procedure (Scotland) Act 1995 (hospital direction); or

(b)

Section 47 of the Mental Health Act 1983 (removal to hospital of persons serving sentences of imprisonment, etc.) or Section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (transfer of prisoners for treatment of mental disorder),

but not if his detention continues after the date which the Secretary of State certifies or Scottish Ministers certify would have been the earliest date on which he could have been released in respect of, or from, the prison sentence, if he had not been detained in hospital.”

Thus, once the Secretary of State has certified that the patient has reached the “earliest date he could have been released if he had not been detained in hospital”, the patient becomes entitled to Income Support. There is no dispute between the parties that the proviso applies to determinate sentence prisoners transferred to hospital who continue to be detained after their earliest release date. The question is how the proviso applies to post-tariff lifers who have been transferred from prison to a hospital. The Claimants submit that the answer to that question is self-evident from the language of the paragraph. The question is:

“what would have been the earliest date on which each prisoner could have been released from prison?”

The answer to that, submit the Claimants, must be the expiry of the tariff because on that day each could have been released if the Parole Board had so resolved. The fact that the Parole Board did not make that decision or that it decided that is was unsafe to release a prisoner is, submit the Claimants, irrelevant in the face of clear statutory language.

The Secretary of State submits that the “earliest date that a prisoner could have been released” should be read as referring to the date on which the prisoner would have been entitled to be released, assuming good behaviour in prison such that no additional days were awarded. In contrast to prisoners serving a determinate sentence, for life sentence prisoners there is no entitlement to release until the Parole Board has directed that the prisoners’ continued detention is no longer necessary to protect the public. Therefore, a post-tariff lifer cannot receive Income Support whilst in hospital, any more than he can in prison.

The decision under challenge was contained in a letter dated 19 February 2008 from the Office of the Solicitor for the Department for Work and Pensions to the Claimants’ solicitors. The short answer to the argument which had been advanced on behalf of the Claimants through their solicitors was given in the way I have described. Additionally, it was suggested that the Secretary of State’s interpretation of paragraph 2A of Schedule 7 was consistent with other legislation (to which I shall return). The reasons in the letter concluded in these terms:

“The clear policy intention of the income support legislation is that persons serving a life sentence will not receive benefit until they are actually released from hospital and not returned to prisons.”

Before turning to sketch in more detail the submissions advanced by the parties in support of their competing interpretations of Paragraph 2A of Schedule 7 of the 1987 General Regulations, I shall outline the way in which both prisoners and hospital patients are treated for the purposes of benefits.

As is well known, there are two types of welfare benefit. The first comprises means-tested benefits which are always non-contributory. The second encompasses non means-tested benefits which may be either contributory or non-contributory.

The relevant principal means-tested benefits are Income Support, which is generally available to unemployed adults between the ages of 18 and 60, and state Pension Credit which is available to adults over the age of 60.

With some limited exceptions, convicted prisoners who have been sentenced to a term of imprisonment are not entitled to receive any benefits whilst they are in prison. The position is different for prisoners on remand. In general terms, non-means tested benefits are suspended during the period of detention on remand pending trial. If a defendant is then acquitted or a non-custodial sentence is imposed, the arrears are paid. Remand prisoners are entitled, however, to receive relevant means-tested benefits, that is Income Support or Pension Credit, for a period of up to 52 weeks. Thereafter they receive nothing. Remand prisoners are also entitled to Housing Benefit if they satisfy the statutory criteria.

The position governing the entitlement of hospital patients to benefits underwent a significant change on 10 April 2006 when the HIP Regulations entered into force.

Prior to the introduction of those Regulations patients detained under the 1983 Act arising out of criminal proceedings were disqualified from receiving most non-means tested benefits as persons detained in legal custody. That was the effect of Section 113(1) of the Social Security Contributions and Benefits Act 1992 subject to the exceptions contained in the Social Security (General Benefit) Regulations 1982 (SI 1982 No 1408) [“the 1982 General Benefit Regulations”]. Notably, under Regulation 2(3) of those Regulations, a person liable to be detained in a hospital who was suffering from mental disorder was able to obtain non-means tested benefits. The people who benefited from that provision included those detained under section 37 of the 1983 Act. However, those Regulations expressly excluded patients subject to a sentence of imprisonment who were then transferred to hospital until Sections 47 and 49 of the 1983 Act.

Whilst that was the general position, patients transferred from prison under Section 47 of the 1983 Act could become eligible for non means-tested benefits if they remained detained in mental hospital after the date at which their underlying prison sentence would have been expected to come to an end. That was provided by Regulation 2(4) of the 1982 Regulations which is in these terms:

“ (4) where as respects a person … a certificate given by or on behalf of the Secretary of State [or Scottish Ministers] 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.”

It is apparent that the language in regulation 2(4) of the 1982 General Benefit Regulations is different from that in paragraph in 2A of Schedule 7 of the 1987 General Regulations. Regulation 2(4) appears clearly to be directed to identify a date beyond which a patient, had he remained in prison, would have been released but who remains detained under the Mental Health Act.

Prior to the 10 April 2006, the position governing means-tested benefits was as follows. All hospital in-patients, including those detained under the 1983 Act, were entitled to Income Support or Pension Credit. Those detained under the 1983 Act included transferred prisoners. There were some differences however in the treatment of ordinary patients and transferred prisoners. Ordinary patients received the means-tested benefits for 52 weeks but then the payment was down-rated to what has been described as the “hospital pocket money rate”. Its proper description was the personal expenses rate. Transferred patients were paid the “hospital pocket money rate” from the moment of their transfer. At the time of the change Income Support was £56.20 a week and the hospital pocket money rate was £16.40. Although the hospital pocket money rate did not equate precisely with the amount of money that a prisoner could earn whilst in prison, there was a broad equivalence.

After 10 April 2006, the HIP Regulations introduced a number of changes to the treatment for benefits purposes of hospital in-patients. The hospital pocket money rate was abolished. Two classes of in-patient were affected by that. First, those who had been in-patients for more than 52 weeks and secondly, prisoners on transfer to hospital. The general impact of this change for ordinary patients was that they received the full Income Support or Pension Credit. The position for transferred prisoners was that they no longer received the hospital pocket money rate. As already noted, the Claimants suggest that transferred prisoners became entitled to full Income Support. The Secretary of State contends that they became entitled to nothing under the social security legislation. However, such patients continued to receive a sum equivalent to the old hospital pocket money rate under discretionary powers given to the Secretary of State for Health under section 122 of the 1983 Act. The rationale advanced by the Secretary of State for that position is that whilst the Government considers it is wrong for serving prisoners to receive welfare benefits, it is nonetheless appropriate to provide transferred prisoners with a modest sum for personal expenses whilst they are in a mental hospital. The detail underlying that policy is set out in a witness statement of Paul Mackrell made on behalf of the Secretary of State in different proceedings (Case No CO/5636/06) but which was sent to me by the Claimants, without objection from the Defendant, a week after the argument in this case was completed.

The root of the treatment of those in mental hospitals for benefits purposes stretches back at least to subordinate legislation in 1948. All patients detained in mental hospitals pursuant to orders made in criminal proceedings were ineligible for welfare benefits. In 1959 the Government commissioned a review which resulted in a recommendation by the National Insurance Advisory Committee that the position should be changed. It reported in March 1960 (Command No 964). It suggested that prisoners should remain subject to the national insurance disqualifications until their sentence would otherwise come to an end, but thereafter be entitled to benefits (see paragraph 17). The Government acted on that recommendation later in 1960 (National Insurance (General Benefit) Amendment Regulations 1960 (SI 1960 No 1282)).

Benefits would become payable upon certification by the Secretary of State that a prisoner had passed ‘the earliest date on which [he] would have been expected to be discharged from detention … if he had not been transferred to hospital…’

In practice, the earliest date was calculated by reference to the maximum period of remission for good conduct available to a prisoner. That was the understanding of the Committee, who saw the Regulations in draft. Release dates are no longer determined by remission for good behaviour. The position is now reversed. Determinate sentence prisoners can expect release on a certain date, subject to additional days being added for bad behaviour.

The 1982 General Benefit Regulations carried forward that regime with the effect that a transferred prisoner was excluded from receiving non-means tested benefits until he had reached ‘the earliest date on which [he] would have been expected to be discharged from detention …if he had not been transferred to a hospital of similar institution.’ As we have seen, the 1987 General Regulations governed entitlement to Income Support and allowed a transferred prisoner the hospital pocket money rate.

Section 172 of the Social Security Administration Act 1992 provides for the Secretary of State to present draft proposals for amending social security regulations to the Social Security Advisory Committee. The Secretary of State provided his draft HIP Regulations to that Committee and provided an explanatory memorandum dated September 2005. His overarching policy so far as prisoners were concerned is found in paragraph 6 of the memorandum:

“Aligning the rules for prisoners

6.

The current benefit rules for people transferred from prison to a mental hospital are inconsistent. For the contributory benefits, the General Benefit Regulations disqualify such a person from receipt of benefit for the minimum duration of the sentence. However, no similar provision currently exists for the income-related benefits which can lead to the anomalous situation whereby a transferred prisoner is disqualified for State Pension purposes but remains eligible for Pension Credit. The removal of 52 week hospital downrating puts this disparity in sharp relief. In order to remove the anomaly the Secretary of State proposes to align the rules across all benefits so as to provide that no benefit is payable for the minimum duration of the prison sentence regardless of the fact that the person has been transferred to a mental hospital. It is also proposed that this rule will apply in the case of people who are sentenced to a term of imprisonment but go straight to a mental hospital.”

The amendments to the regime regarding non-means-tested benefits were introduced to cater for individuals transferred to hospital pursuant to section 45A of the 1983 Act. This was a relatively new provision inserted by the Crime (Sentences) Act 1997. It enables a person convicted in the Crown Court and sentenced to a term of imprisonment nonetheless to be transferred directly to a mental hospital upon the recommendation of two registered medical practitioners. Such individuals, if they respond to treatment, are moved to a prison. The memorandum suggested that there were very few such disposals each year. At paragraphs 18 and 19 it said this:

“18.

There are only about 4 or 5 cases under section 45A each year, but in principle we believe that, for benefit purposes, they should have the status of prisoners whilst undergoing hospital treatment and should not receive benefit. We would stress that this is entirely different from what are termed hospital orders. These are made under Section 37 of the Mental Health Act. This is where the court finds a person guilty of a criminal offence but issues an order directing them to receive treatment in hospital. Such an order is an effective outcome as far as court proceedings are concerned. It is not possible to disqualify such an individual for a notional period for which they could have been imprisoned, because what the court would have done had they not determined that a hospital order was appropriate, will forever be unknowable. A court has many non-custodial options available to it which it could have chosen in these circumstances. The policy is only to apply the disqualification rule where there is a definite prison sentence against which to measure it.

19.

I would draw the Committee’s attention to paragraph (4) of the regulation 2 of the General Benefit Regulations. What it does is to provide a yardstick for the period of time for the disqualification to last. It is more generous than the actual length of the sentence and requires an officer acting for the Home Secretary (and the respective counterparts in Scotland and Northern Ireland) to provide a certificate indicating the earliest date the individual concerned would have been expected to have been discharged had he not been transferred to hospital. There are no changes to this principle which applies to both exceptions in regulation 2(3).”

The changes to the 1987 General Regulations were introduced through regulation 4 of the HIP Regulations. The Secretary of State’s purpose in making the changes was explained in paragraphs 20 – 23 of the memorandum:

“ Regulation 4

20.

Regulation 4 amends provisions in the Income Support (General) Regulations 1987 which adjust the applicable amount of income support if the beneficiary or a member of the beneficiary’s household are hospital in-patients receiving NHS treatment.

21.

Paragraph (2) abolishes the rule that absences from hospital of 28 days are ignored when calculating a 52 week period as an inpatient; but paragraph (4) maintains this rule for stopping non-dependant deductions when the non-dependant has been a hospital in-patient for 52 weeks.

22.

Paragraph (5)(a) abolishes, for most cases, the adjustment of income support when a claimant has been receiving free medical treatment as a hospital in-patient for 52 weeks. But if the claimant is entitled to a disability or enhanced disability premium, paragraph (5)(c) removes entitlement to the premium after 52 weeks for such an in-patient.

23.

Paragraph (5)(b) provides for a nil applicable amount of income support for the same people referred to in connection with the exceptions in regulation 2(3) General Benefit Regulations who are subject to a prison sentence and are then detained in hospital under the Mental Health Act 1983 or the Mental Health (Care and Treatment)(Scotland) Act 2003”

The last of these paragraphs contains the Secretary of State’s expressed underlying purpose in seeking to align the approach under the 1982 General Benefits Regulations and the 1987 General Regulations.

A similar expressed intention appears in an explanatory memorandum laid before Parliament on 12 December 2005 by the Department of Work and Pensions along with the HIP Regulations. As is material, that memorandum explained:

7.3

The current rules around what benefits are available to people who have been sentenced to a term of imprisonment but are transferred to a mental hospital at some point during their sentence are complex and misaligned. The amendments seek to remove anomalies by aligning the rules across all benefits. The intention is that where a person is sentenced to a term of imprisonment they are treated in the same way for all benefit purposes irrespective of whether they are serving a term of imprisonment in a prison or being detained for treatment in hospital.

…

7.5

Regulation 3 makes supplementary amendments to regulation 2 of the Social Security (General Benefit) Regulations 1982 which prescribes certain exemptions from the rule by which those who are undergoing imprisonment or detention in legal custody are disqualified for receipt of certain contributory and non-contributory benefits. Although there is a general exemption from the disqualification rule for imprisonment for those who are liable to be detained in a hospital or similar institution in Great Britain as a person suffering from mental disorder, the exemption does not apply if the patient is detained or liable to be detained under section 47 of the Mental Health Act 1983 or section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003. This applies to patients who are transferred from prison to hospital for treatment for mental illness.

7.6

The amendment updates existing references to mental health legislation but additionally provides that the exemption will not apply in respect of persons who are detained or liable to detention under sections 45A of the Mental Health Act 1983 or section 59A of the Criminal Procedure (Scotland) Act 1995. These are the relevant sections which make provision for those who are sentenced to a term of imprisonment by a criminal court but are sent to mental hospital for treatment.

7.7

Regulations 4 and 8 made equivalent amendments for Income Support and State Pension Credit removing benefit entitlement for prisoners subsequently detained in hospital. Regulations 4, 5 and 8 remove the rule linking periods in hospital for the purposes of Income Support, Jobseeker’s Allowance and State Pension Credit entitlement but the rule is retained for non-dependant deductions. Regulations 4 and 6 remove disability related premiums from Income Support and Jobseeker’s Allowance beneficiaries after they have received free NHS treatment as a hospital in-patient for more than 52 weeks.”

As is usual, an explanatory note was provided at the end of the printed copy of the HIP Regulations. It is prefaced with the customary warning: ‘This note is not part of the Regulations’. It explains that Regulation 4, amongst other things, ‘provides for a nil applicable amount of income support in the circumstances specified by Regulation 3 for the other benefits.’ Regulation 3 made amendments to the 1982 General Benefit Regulations which disqualify prisoners from non-means-tested benefits whilst detained in a mental hospital.

In a statement dated 4 June 2008 prepared for these proceedings, Paul Mackrell, an official at the Department of Work and Pensions, explained the history of the entitlement to benefits of prisoners and hospital patients. He concluded by saying:

“18.

The policy with respect to “the earliest date” on which the patient in question “would have been expected to be discharged” has not changed since 1960. It has never applied in the context of the tariff where a prisoner has been given a life sentence. The change in income support and other income-related benefits legislation affecting patients detained under sections 45A and 47 of the Mental Health Act in April 2006 did not signal a change in policy.”

Section 47 of the 1983 Act empowers the Secretary of State to transfer a serving prisoner to hospital if he is satisfied, on the evidence of two medical practitioners, that the prisoner meets the criteria for detention under the 1983 Act. A prisoner transferred under section 47 to a mental hospital is treated, for practical purposes, in the same way as a person subject to a hospital order imposed under section 37 of the 1983 Act by the Crown Court on conviction. Section 49 allows the Secretary of State to require that a person in respect of whom a transfer direction has been made be subject to restrictions equivalent to those imposed under section 41 of the 1983 Act. As a matter of policy, the Secretary of State will exercise his power under section 49 save in respect of determinate prisoners very close to their release dates. Thus, those transferred are treated in hospital as if they were the subject of a hospital order with restrictions imposed by the Court. However, if they recover from their mental illness, rather than being released they may be returned to prison to serve out their sentences. The sentence continues to run throughout the period of detention in the hospital.

Section 50 governs the release of prisoners transferred under section 47 of the 1983 Act but subject to a restriction under section 49. Section 50 provides:

“(1)

Where a transfer direction and a restriction direction have been given in respect of a person serving a sentence of imprisonment and before his release date the Secretary of State is notified by the responsible medical officer, any other registered medical practitioner or a Mental Health Review Tribunal that that person no longer requires treatment in hospital for mental disorder or that no effective treatment for his disorder can be given in the hospital to which he has been removed, the Secretary of State may—

(a)

by warrant direct that he be remitted to any prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed; or

(b)

exercise any power of releasing him on licence or discharging him under supervision which could have been exercisable if he had been remitted to such a prison or institution as aforesaid,

and on his arrival in the prison or other institution or, as the case may be, his release or discharge as aforesaid, the transfer direction and the restriction direction shall cease to have effect.

(2)

A restriction direction in the case of a person serving a sentence of imprisonment shall cease to have effect, if it has not previously done so, on his release date.

(3)

In this section, references to a person's release date are to 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.”

Subsection (3) is in language once again different from Paragraph 2A of Schedule 7 to the 1987 General Regulations and also from the language of the Regulation 2(4) of the 1982 General Benefit Regulations. The effect of the release scheme under the 1983 Act is that it treats the ‘release date’ as the relevant date for determining the last day on which the prisoner can be returned to prison and the date on which he ceases to be subject to special restrictions. That is the effect of section 50(1) and 50(2). Additionally, the ‘release date’ is defined by reference to the date on which the prisoner would have been entitled to be released, ignoring the possibility of a discretionary direction from the Parole Board. That is the effect of section 50(3). There are, for example, prisoners entitled to be released after two thirds of their sentence but who may be released on the recommendation of the Parole Board after half. Additionally, there are many prisoners whose release dates are determined by the Parole Board, those subject to a life sentence being a significant category.

The result of these provisions is that those serving a life sentence have no ‘release date’ for the simple reason that they have no entitlement to be released. That does not mean that such prisoners are detained for ever. They may be returned to prison on recovery. In those circumstances they become subject to the jurisdiction of the Parole Board. Additionally, there are mechanisms within section 74 of 1983 Act which may result in release.

Mr Bowen, on behalf of the Claimants, submits that the earliest date on which each of the Claimants’ could have been released is plainly the date on which their tariffs expired. ‘Could’ means the earliest date on which a prisoner might have been considered for release. In other words, it is the first theoretical date for release. He emphasises that the provision says ‘could’ and not ‘would’ have been released. He submits that Paragraph 2A is plain and unambiguous so that extra-statutory material (that is the two memoranda from which I have quoted together with the prior legislative history) is not needed as an aid to construction. Indeed, it is impermissible to look at the two memoranda as aids to construction. He submits that the paragraph should be taken to mean what it says. Its language is different from the terms of Regulation 2(4). The draftsman could easily have used the same language as found there or indeed the same language as found in section 50(3) of the 1983 Act. There is no mischief that needs to be remedied if post-tariff lifers get Income Support while they are in hospital. It is explicable on the basis that they are denied access to the Parole Board during that period and also are unable to earn as they can in prison. They are likely to be rehabilitated through the mental health regime rather than the prison regime. The Claimants’ suggested interpretation is neither absurd nor unreasonable. The fact that, as a matter of discretion, the Secretary of State for Health will continue to provide ‘pocket money’ is not relevant. Mr Bowen disputes any reliance on section 50 of the 1983 Act on the basis that it is not in pari materia with the 1987 General Regulations, made under a different statute. He also submits that to interpret the paragraph other than as he suggests gives rise to an example of ‘doubtful penalisation’ referred to by Bennion, section 278 at paragraph 846.

Mr Chamberlain, who appeared for the Secretary of State, distilled his submissions to four propositions.

Looked at in complete isolation, Paragraph 2A might not deliver the result that either party contends for. The proviso is concerned with “the date which the Secretary of State certifies or Scottish Ministers certify would have been the earliest date on which [the prisoner] could have been released in respect of, or from, the prison sentence, if he had not been detained in hospital.”

The first point that is striking is that the proviso is concerned with the date of release in respect of or from a prison sentence, rather than from detention, which is the language of Regulation 2(4) of the 1982 General Benefit Regulations. This at least prompts the thought whether the draftsman had in mind the end of a sentence of imprisonment, which would include the licence period, rather than release from detention. But neither party supported that construction because it would so obviously not accord with the intention of the Regulations. Next, the language in Paragraph 2A, taken at face value, might be thought to require the Secretary of State to second guess what the Parole Board would have done. It might be said that the first date on which a life sentence prisoner ‘could have been released’ is the date on which the Parole Board considered him safe for release. Yet neither party suggested that the Minister’s task involves putting himself in the shoes of the Parole Board. Similarly, it might be thought that the reference to ‘could have been released’ would require the Secretary of State to take account of any additional days picked up by a prisoner as a result of disciplinary adjudications. A more extreme hypothetical consideration that might come into play if ‘could have been released’ is looking for the earliest theoretical date of release would be that there is power under the Royal Prerogative to release prisoners for a variety of reasons. None of these possibilities is relied upon by either party as identifying the date that Paragraph 2A is concerned with.

However, there are, to my mind, three obvious difficulties with the Claimants’ approach which makes it doubtful whether Parliament intended the result for which they contend.

The first is that it gives no weight to the words ‘if he had not been detained in hospital.’ When looking to answer any question concerning what would have happened if a particular event had not intervened, one would expect to be looking for something that would otherwise have post-dated that event. In my judgment, a date certified by the Secretary of State under Paragraph 2A will post-date the transfer under section 47. That is a conclusion that is obvious for a prisoner who is entitled to be released after half of his sentence. He would not be in prison after that date and so if transferred under section 47 it must follow that the half way point is in the future.

There are, however, many circumstances in which a determinate prisoner, whilst not entitled to be released, might be released. One large category under now repealed sentencing legislation comprised those entitled to be released after two thirds of their sentences, but who could be released on the recommendation of the Parole Board after half. More universally, the Secretary of State for Justice has many powers to release prisoners in advance of their reaching the half way point in their determinate sentences. So the question of interpretation identified in these proceedings might read over into other circumstances.

The second is that the Claimants’ interpretation leads to a very odd result. Post-tariff lifers can apply to the Parole Board every two years. Any post-tariff lifer who is transferred under sections 47 and 49 has necessarily not been released on licence. It is possible that his transfer may follow so soon on the expiry of his tariff that the Parole Board has not considered the question of release. Another alternative is, as here, that the Parole Board has refused release. There may have been multiple refusals. And so it is that the Claimants’ interpretation requires the Secretary of State to certify that the ‘earliest date on which someone could have been released’ is a date on which he could not have been released because the Parole Board had not authorised his release, or had denied it.

The third is that if the Claimants are correct, Parliament must have intended to achieve two things which on their face are contradictory. On the one hand, in respect of prisoners subject to determinate sentences, Paragraph 2A has achieved uniformity in respect of non-means-tested and means-tested benefits. The date identified under both sets of Regulations for entitlement to benefits is the same. On the other, if the Claimants are correct, Paragraph 2A confers a new entitlement to means-tested benefits on post-tariff lifers who are not entitled to non-means tested benefits and who might still be returned to prison, where (as is accepted) they would not be entitled to Income Support.

If I am right in concluding that the date which the Secretary of State identifies under Paragraph 2A is later in time than the date of transfer, then what are the options? Neither the Claimants nor the Defendant sought to suggest that the Secretary of State should act as a surrogate Parole Board. It is likely that the intention behind the Paragraph 2A was to enable a date to be identified by reference to the sentence itself, rather than calling for an evaluative exercise of any sort on behalf of the Secretary of State. If that is right, then the argument advanced on behalf of the Secretary of State that the date should be that on which a prisoner would be entitled to be released presents an attractive solution to the question of interpretation.

Mr Chamberlain drew my attention to the speech of Lord Nicholls in R v Secretary of State for the Environment Transport and the Regions, Ex parte Spath Holme Ltd. [2001] 2AC 349 at page 397F – 398E. Lord Nicholls referred to the importance of the citizen being able to collect the meaning of a piece of legislation from its words and the caution with which extrinsic aids should be approached. That is because the legislation contains the words of Parliament, whilst the extrinsic aids do not. Nonetheless, whilst approaching such aids with circumspection, they are frequently used to confirm an interpretation otherwise thought correct and occasionally to displace a literal interpretation that is productive of absurdity. This authority and many others caution against assuming that the intention of a sponsoring department or minister is necessarily the same as the intention of Parliament.

In Flora v Wakom (Heathrow) Ltd [2007] 1 WLR 482, the Court of Appeal was concerned with the Damages Act 1996 and the circumstances in which a Court might depart from the approach to discount rates generally applied. In paragraphs 15 and 16 Brooke LJ explained the proper approach to the use of explanatory notes as follows:

“15 The use that courts may make of explanatory notes as an aid to construction was explained by Lord Steyn in R (Westminster City Council) v National Asylum Support Service [2002] I WLR 2956, paras 2-6; see also R (S) v Chief Constable of the South Yorkshire Police [2004] I WLR 2196, para 4. As Lord Steyn says in the National Asylum Support Service case, explanatory notes accompany a Bill on introduction and are updated in the light of changes to the Bill made in the parliamentary process. They are prepared by the government department responsible for the legislation. They do not form part of the Bill, are not endorsed by parliament and cannot be amended by Parliament. They are intended to be neutral in political tone; they aim to explain the effect of the text and not to justify it.

16 The text of an Act does not have to be ambiguous before a court may be permitted to take into account explanatory notes in order to understand the contextual scene in which the Act is set: see the National Asylum Support Service case, para 5. In so far as this material casts light on the objective setting or contextual scene of the statute, and the mischief to which it is aimed, it is always an admissible aid to construction. Lord Steyn, however, ended his exposition of the value of explanatory notes as an aid to construction by saying [2002] I WLR 2956, para 6:

‘What is impermissible is to treat the wishes and desires of the Government about the scope of the statutory language as reflecting the will of Parliament. The aims of the Government in respect of the meaning of clauses as revealed in explanatory notes cannot be attributed to Parliament. The object is to see what is the intention expressed by the words enacted’.”

Brooke LJ was approving Lord Steyn’s language, even though it had been obiter. In Pickstone v Freemans plc [1989] AC 66 Lord Oliver said at p 127 that, while an explanatory note is not part of the regulations, it is of use in identifying the mischief which the regulations were attempting to remedy. In this case we have two explanatory memoranda and an explanatory note. It seems to me that all can properly be used as an aid to construing a provision in a statutory instrument which uses language that is, to some extent, unclear.

The effect of all three aids is to support the construction contended for by the Secretary of State. In my judgment, although the language of Regulation 2(4) of the 1982 General Benefits Regulations and Paragraph 2A of Schedule 7 to the 1987 General Regulations is different, their effect is the same. In Paragraph 2A the earliest date on which a prisoner ‘could have been released in respect of, or from, the prison sentence if he had not been detained in hospital’ is the first date on which he is entitled to be released. For determinate prisoners that will usually be when half of the sentence has been served. For those serving life sentences there is no such date. Therefore, post-tariff lifers, whether serving their sentence in a prison or on transfer to a mental hospital, are not entitled to Income Support under the current Regulations. The position is the same as applies to non-means tested benefits under the 1982 General Benefits Regulations. This interpretation also achieves symmetry with the provisions found in section 50 of the 1983 Act governing the circumstances in which a prisoner transferred to a mental hospital becomes entitled to release.

For these reasons these applications for judicial review are dismissed.