[2007] UKSSCSC CSS_239_2007 (09 August 2007)

DECISION OF SOCIAL SECURITY COMMISSIONER

1.	My decision is that the decision of the tribunal given at Glasgow on 25 October 2006 is not erroneous upon a point of law.  The appeal fails.  I dismiss it.  

2.	This appeal came before me for an oral hearing on 1 August 2007.  The claimant was represented by Mr. Fernie a Welfare Rights Officer of the City of Glasgow Council.  The Secretary of State was represented by Mr. Brown, Solicitor of the Office of the Solicitor to the Advocate General.

3.	The claimant has appealed to the Commissioner against the decision of the tribunal.  The tribunal disallowed his appeal against a decision by the Secretary of State dated 5 April 2006 and confirmed the decision.  That decision was in the following terms:

	“…Live Severe Disablement Allowance from 12/04/95.

	[The claimant] has been in hospital from 03/11/93.

	From 10/04/06 customers detained in a mental hospital who would otherwise be serving a criminal sentence are no longer eligible for Severe Disablement Allowance.

Therefore I supersede the decision of the Adjudication Officer awarding Severe Disablement Allowance from and including 03/11/93 and my decision only from and including 10/04/06 is as follows:

[The claimant] is not entitled to Severe Disablement Allowance from and including 10/04/06.
The Social Security (Hospital In-Patients) Regulations 2005.”

4.	The tribunal made the following findings in fact which were not disputed.  They are as follows:

	“…[The claimant] has been in receipt of a life award of Severe Disablement Allowance since 3/11/1993.  He is a prisoner sentenced to life imprisonment on June 29 1979 with a recommendation he serve 12 years before being eligible for parole.  Since being entitled to do so he has attended yearly hearings with the Scottish Parole Board.  He was transferred to Carstairs Hospital in 1992 under Section 71/72 of the Criminal Procedure (1995) Act to have treatment in hospital for mental illness.  During he 1990’s he had various periods in hospital for this reason.  In 1999 he was detained at Leverndale Hospital under a Compulsory Order Restriction Order and is currently detained under S.136 of Mental Health (Care and Treatment) (Scotland) Act 2003 for treatment for his mental health disorder.  The Parole Board has determined he is not suitable for release…”

5.	Section 113 (1)(b) of the Social Security Contributions and Benefits Act 1992 provides:

	“…Except where regulations otherwise provide, a person shall be disqualified from receiving any benefit under Parts II to V of this Act … for any period during which the person –

(a) …

(b) is undergoing imprisonment or detention in legal custody.”

Provision for Severe Disablement Allowance is set out in Sections 68 and 69 of the Social Security Contributions and Benefits Act 1992.  These sections are contained in Part III of the Act.

6.	The Social Security (General Benefit) Regulations 1982 were amended by the Social Security (Hospital In-Patients) Regulations 2005.  The material amendment of regulation 2 of the General Benefit Regulations came into effect from 10 April 2006.  Regulation 2 provides in its  amended form:-

“2. (1)  The following provisions of this regulation shall have effect to except benefit from the operation of section 82(5)(b) of the Act which provides that (except where regulations otherwise provide) a person 	shall be disqualified for receiving any benefit and … for any period 	during which that person is undergoing imprisonment or detention in legal custody (hereinafter in this regulation referred to as “the said provisions).”

2) …

(3)  The said provisions shall not operate to disqualify a person for receiving any benefit (not being a guardian’s allowance or death grant) … for any period during which that person is undergoing detention in legal custody after the conclusion of criminal proceedings if it is a period during which he is liable to be detained in a hospital or similar institution in Great Britain as a person suffering from mental disorder unless –

(a)	he is detained or liable to be detained under 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)	he is detained or liable to be detained under 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 for mental disorder.

(4)	Where, as respects a person in relation to whom paragraph (3)(a) or (b) is satisfied, 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.”

7.	The tribunal have found as a fact that the claimant is detained under 	Section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003.  I was told by Mr. Brown that no certificate of the type referred to in regulation 2(4) has been or could be provided by the Scottish Ministers.  Mr. Fernie accepted that in order to benefit from the provisions of regulation 2(4) a certificate is required.  He also accepted that there was no certificate.  He also accepted that a relevant change of circumstances had arisen which enabled the Secretary of State to carry out the supersession in the decision appealed against to the tribunal.  These conclusions were properly made by him.  The decision reached by the tribunal was the only one which could have been made.  That is sufficient to dispose of the appeal.  However, I consider it is appropriate in deference to the careful and well researched submission of Mr. Brown to set out in fuller detail how the statutory provisions operate.

8.	Mr. Brown submitted that regulation 2(3) of the General Benefit Regulations makes provision that a person is not disqualified from receiving benefit if he is detained in a hospital unless he is detained by virtue of the statutory provisions listed in regulation 2(3)(a) and (b) including section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003.  However, regulation 2(4) makes provision for regulation 2(3)(a)(b) not to be satisfied where a certificate of the type set out in that regulation is provided.  Mr. Brown said that the crucial reason for the exemption contained in regulation 2(4) was that if the detention was due to the state of the claimant’s mental health only then the disqualification would not apply.  On the other hand if the reason for the detention was in consequence of detention arising from the commission of crime then the benefit of the exemption was not available.  

9.	Mr. Brown submitted that in England and Wales at the present time and prior to 2003 in Scotland, when a person was transferred from a prison to hospital this was done by a restriction order being made under the mental health provisions in addition to a transfer order between the two institutions.  He said that the basis for detention was the restriction order rather than imprisonment.  Thus he said a sentence can expire but the restriction is maintained under the order granted under the various Mental Health Acts.

10.	However, he submitted that the statutory arrangements for the transfer of prisoners for treatment for mental disorder had been changed in Scotland by the Mental Health (Care and Treatment) (Scotland) Act 2003, which came into effect in 2005.  Section 136 (2) provides:

	“If the Scottish Ministers are satisfied, on the written reports of an approved medical practitioner and a medical practitioner as to the matters mentioned in subsection (3) below, they may, subject to subsection (5) below, make a direction (referred to in this Act as a “transfer for treatment direction”) authorising the measures mentioned in subsection (6) below.”

Sub-section 6 provides the measures that can be taken and they are as follows:

	“(6)  The measures are –

(a)	the removal, before the expiry of the period of 7 days beginning with the day on which the direction is made, of the prisoner to the specified hospital by –
(i)		a constable;
(ii)		a person employed in, or contracted to provide services in or to, the specified hospital who is authorised by the managers of that hospital to remove persons to hospital for the purposes of this section; or
(iii)	a specified person

(b)		the detention of the prisoner in the specified hospital; and

(c)		the giving to the prisoner, in accordance with Part 16 of this 	Act, of medical treatment…”

Mr. Brown said that following upon the introduction of this new legislative scheme all cases including that of the claimant were transferred into it administratively.  That was not disputed by Mr. Fernie.  It was Mr. Brown’s submission that if a person was transferred under section 136 if their release date is reached or if the parole board has decided that the person can be released on licence, then the basis for their detention ceases to have effect.  He referred me to section 217 of the Act which provides:

	“(1)  This section applies where a patient is subject to –
(a)	a hospital direction; or
(b)	 a transfer for treatment direction.

(2)	Where a patient is released under Part 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (c.9) or otherwise the direction to which the patient is subject shall cease to have effect.”

He also referred me to paragraphs 7.15 of the Scottish Executive Health Department Memorandum of Procedure which is recorded at page 51.  It was his submission that in these circumstances, if the person was to be further detained that would have to be done by a fresh order.  This would require to be under a different statutory provision.  He submitted that, accordingly, a person will never be detained under section 136 beyond the release date because of section 217.  Consequently he submitted that the provisions of regulation 2(4) are otiose as regards Scotland as the Scottish Ministers could never grant such a certificate in respect of someone who was detained under section 136.  I am persuaded by that submission.  Mr. Fernie did not seek to persuade me otherwise.

11.	  The supersession of the awarding decision has had a financial effect on the claimant.  He had been receiving a reduced amount of his benefit which was obviously of use to him in regard to personal expenses.  Mr. Brown pointed out to me that in accordance with section 288 of the 2003 Act, there is a discretion to the Scottish Ministers to pay to the detainee such amounts as they consider appropriate in respect of the person’s occasional personal expenses if the other provisions of that section are fulfilled.  Mr Fernie however, indicated to me that no such payment was being made.  I have no jurisdiction in relation to the exercise of a discretion of Scottish Ministers.

12	The appeal fails.

					(signed)
					D J MAY QC
					Commissioner
					Date:  9 August 2007