Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL Appeal No. CIS 1179 2011 

ADMINISTRATIVE APPEALS CHAMBER

 

KR v SSWP (IS)

 

DECISION

 

The appeal is dismissed.  

 

For the reasons below, the decision of the First-tier tribunal is not wrong in law.

 

REASONS FOR DECISION

 

1 The claimant and appellant is appealing against a decision of the First-tier Tribunal (Judge Lumley sitting alone) in Doncaster on 16 02 2011 under reference 003 10 01654.

 

2 He is appealing against a decision made by a decision maker acting for the Secretary of State on 18 03 2010 that he was not entitled to income support as his income exceeded the applicable amount to which he was entitled. 

 

3 The disputed question behind this was whether the appellant was entitled to continue to receive a disability premium as part of his appllcable amount. He had been receiving this amount. However, it was decided as a result of enquiries on other matters that the appellant was no longer entitled to that premium. The decision operated from the date of the decision.

4 The appellant appealed to the First-tier Tribunal for two reasons. First, he did not understand why the premium had been taken away from him. He had been in four hospitals and it was only taken away while he was in the fourth of them.

 

5 Further, he had been given no notice that the premium had been stopped, or why. He had found out only from his bank.

 

6 As to the failure of notice, I note that the appellant phoned the relevant office a month after the decision to stop his premium, and that he appealed promptly following that phone call. His appeal was accepted and in due course the First-tier Tribunal held a full oral hearing of his appeal. I see no continuing issues arising from any failure to notify.

 

7 The official explanation for stopping the premium, and the relevant facts were set out in the formal submission for the Secretary of State to the tribunal. Again, any shortcomings when the decision was taken were made good by the time the matter reached the tribunal.

 

8 The explanation was that the appellant hade become a long-term patient and as such was no longer entitled to the disability premium.

 

9 The appellant strongly disputed this. He was (and is) a patient detained following an order under section 37 of the Mental Health Act . The appellant considers that the nature of his detention under section 37 has not been understood.

 

10 To avoid doubt, I set out section 37 as at present enacted:

 

E+W

(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.

(1A)In the case of an offence the sentence for which would otherwise fall to be imposed—

(a)under section 51A(2) of the Firearms Act 1968,

(b)under section 110(2) or 111(2) of the Powers of Criminal Courts (Sentencing) Act 2000,...

(c)under section 225(2) or 226(2)]of the Criminal Justice Act 2003,

or

(d)under section 29(4) or (6) of the Violent Crime Reduction Act 2006 (minimum sentences in certain cases of using someone to mind a weapon),

nothing in those provisions shall prevent a court from making an order under subsection (1) above for the admission of the offender to a hospital.

(1B)References in subsection (1A) above to a sentence falling to be imposed under any of the provisions mentioned in that subsection are to be read in accordance with section 305(4) of the Criminal Justice Act 2003.

(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.

(3)Where a person is charged before a magistrates’ court with any act or omission as an offence and the court would have power, on convicting him of that offence, to make an order under subsection (1) above in his case... , then, if the court is satisfied that the accused did the act or made the omission charged, the court may, if it thinks fit, make such an order without convicting him.

(4)An order for the admission of an offender to a hospital (in this Act referred to as “a hospital order”) shall not be made under this section unless the court is satisfied on the written or oral evidence of the approved clinician who would have overall responsibility for his case or of some other person representing the managers of the hospital that arrangements have been made for his admission to that hospital.., and for his admission to it within the period of 28 days beginning with the date of the making of such an order; and the court may, pending his admission within that period, give such directions as it thinks fit for his conveyance to and detention in a place of safety.

(5)If within the said period of 28 days it appears to the Secretary of State that by reason of an emergency or other special circumstances it is not practicable for the patient to be received into the hospital specified in the order, he may give directions for the admission of the patient to such other hospital as appears to be appropriate instead of the hospital so specified; and where such directions are given—

(a)the Secretary of State shall cause the person having the custody of the patient to be informed, and

(b)the hospital order shall have effect as if the hospital specified in the directions were substituted for the hospital specified in the order.

(6)An order placing an offender under the guardianship of a local social services authority or of any other person (in this Act referred to as “a guardianship order”) shall not be made under this section unless the court is satisfied that that authority or person is willing to receive the offender into guardianship.

(7) . . .

(8)Where an order is made under this section, the court shall not—

(a)pass sentence of imprisonment or impose a fine or make a community order (within the meaning of Part 12 of the Criminal Justice Act 2003) or a youth rehabilitation order (within the meaning of Part 1 of the Criminal Justice and Immigration Act 2008) in respect of the offence,

(b)if the order under this section is a hospital order, make a referral order (within the meaning of the Powers of Criminal Courts (Sentencing) Act 2000) in respect of the offence, or

(c)make in respect of the offender... an order under section 150 of that Act (binding over of parent or guardian),

but the court may make any other order which it has power to make apart from this section; and for the purposes of this subsection “sentence of imprisonment” includes any sentence or order for detention.

 

In summary, the appellant is subject to a compulsory order made following criminal proceedings for his detention in hospital. If the judge makes such an order then that takes effect rather than other forms of detention or punishment.

 

11 The appellant contends that because he has been detained in this way he is not a long term patient. This is important because the reason given for stopping his income support was that he is a long term patient.

 

12 The tribunal’s decision on these points was as follows.

 

13 On the face of it the appellant should be entitled to the disability premium of income support as he is the recipient of the severe disablement allowance. (Regulation 12(1)(a)(i) of Schedule 2 to the Income Support (General) Regulations 1987 as amended (the 1987 Regulations)).

 

14 What has caused the problem for the appellant is the wording of paragraph 11 of Schedule 2 to the 1987 Regulations that deals with conditions that need to be satisfied for entitlement to the premium. Paragraph 11(2) reads:

 

Disability Premium

 

The condition is not satisfied if the claimant is a single claimant  … and …is a long- term patient

 

15 The appellant is a single claimant but is/was he a long-term patient?

 

16 Regulation 2(1) of the 1987 Regulations defines a long-term patient as a person who:

 

• Is a patient within the meaning of regulation 21(3) [of those regulations] and
• Has been such a patient for a continuous period of more than 52 weeks.

 

17 The appellant states that his section 37 detention is indeterminate and is therefore of an uncertain nature. What is not in issue is that the appellant’s detention status has been the same for a continuous period of more than 52 weeks. This constitutes long-term. What has to be decided by the tribunal is whether that status has been as a patient.

 

18 Regulation 21(3) of the 1987 Regulations as amended defines patient as meaning

 

A person (other than a prisoner) who is regarded as receiving free in-patient treatment within the meaning of regulation 2(4) and (5) of the Social Security (Hospital In-Patients) Regulations 2005.

 

19 Before deciding whether the appellant is a person who is regarded as receiving free in-patient treatment within the meaning of regulation 2(4) and (5) of the 2005 regulations the question arises as to whether the appellant might be a prisoner having regard to the fact that he is detained by order of the Crown Court in a hospital under the provisions of section 37 of the Mental Health Act 1983.

 

20 Regulation 21(3) of the 1987 Regulations as amended defines prisoner as meaning a person who

 

Is detained … under a sentence imposed by a court other than a person who is detained in hospital under the provisions of the Mental Health Act 1983.

 

21 The appellant is detained under the provisions of the Mental Health Act 1983. However, is he detained in hospital?

 

22 The definition of hospital is in section 128(1) of the National Health Service Act 1977 that defines hospital as being

 

Any institution for the reception and treatment of persons suffering from illness

 

23 In commentary to the Social Security (Hospital In-Patients) Regulations 2005 contained at paragraph 3.74, page 574 of Volume I of Social Security Legislation 2010/11 it states that:

 

The question of whether a person is in a “hospital or similar institution” is nowadays determined not so much by the inherent nature of the accommodation but by whether the person’s assessed need for care are such that the National Health Service is under a duty to fund the accommodation free of charge

 

24 The First-tier Tribunal was aware that [the hospital at which the appellant is detained] is run by … a limited company …

 

25 In a letter received in furtherance of this appeal from [a registered social worker], he describes the appellant as receiving treatment for personality disorder at [the hospital].

 

26 The appellant was unable to fund his own treatment and the First-tier Tribunal could only assume and found that his assess needs for care are such that the National Health Service was under a duty to fund his accommodation at [the hospital] free of charge. The tribunal does not regard the fact that [the hospital] is run by an independent company as being significant in determining whether the appellant is detained in a hospital.

 

27 The appellant’s detention under section 37 of the Mental Health Act 1983 is under what is known as a “hospital order”.

 

28 On balance the First-tier Tribunal was satisfied that the “appellant is a person who is detained in hospital under the provisions of the Mental Health Act 1983. He is therefore not a prisoner. Is he a patient?

 

29 Going back to paragraph [18] above the First-tier Tribunal had to determine whether the appellant was a patient which is a prerequisite for the 52 week plus exclusion from entitlement to the disability premium.

 

30 As referred to in paragraph [18] patient is defined as

 

A person … who is regarded as receiving free in-patient treatment within the meaning of regulation 2(4) and (5) of the Social Security (Hospital In-Patients) Regulations 2005.

 

31 Regulation 2(4) and (5) of the 2005 Regulations provides:

 

(4) For the purposes of this regulation, a person shall be regarded as receiving or having received free in-patient treatment for any period for which he is or has been maintained free of charge while undergoing medical or other treatment as an in-patient—

(a) in a hospital or similar institution under the National Health Service Act 1977, the National Health Service (Scotland) Act 1978 or the National Health Service and Community Care Act 1990, or

(b) in a hospital or similar institution maintained or administered by the Defence Council,

and such a person shall for the purposes of sub-paragraph (a) be regarded as being maintained free of charge in a hospital or similar institution unless his accommodation and services are provided under section 65 of the National Health Service Act 1977, section 57 of the National Health Service (Scotland) Act 1978(5) or paragraph 14 of Schedule 2 to the National Health Service and Community Care Act 1990.

(5) For the purposes of paragraph (4), a period during which a person is regarded as receiving or having received free in-patient treatment shall be deemed to begin on the day after the day on which he enters a hospital or similar institution referred to in that paragraph and to end on the day on which he leaves such a hospital or similar institution.

 

32 Section 65 of the National Health Service Act 1977 and paragraph 14 of Schedule 2 to the National Health Service and Community Care Act 1990 relate to accommodation and services for private patients.

 

33 The First-tier Tribunal was satisfied that the appellant was not a “private patient” and by virtue of regulation 2(4) was regarded as receiving free in-patient treatment within the meaning of regulation 2(4) and (5) of the 2005 Regulations. He is a patient for the purposes of paragraph 11 of Schedule 2 to the 1987 Regulations.

 

34 The First-tier Tribunal was fortified in its determinations referred to in the previous paragraph and also paragraph [28] by noting from a commentary on R(D and M) v SSWP [2010] EWCA Civ 18 that the 2005 Regulations are said to have been beneficial to civil patients, including section 37 patients. The inference is that section 37 patients fall within the umbrella of the 2005 regulations.

 

35 The First-tier Tribunal found for the reasons above that the appellant is a single claimant and is a long-term patient. By virtue thereof he is not entitled to the disability premium of income support. 

 

36 I have taken paragraphs 13 to 35 above from the identically numbered paragraphs of the decision of the First-tier Tribunal,  subject only to minor amendments made on proof-reading, to anonymise the decision and to make it consistent as a decision of the Upper Tribunal. In granting permission to appeal on the issue of interpretation the First-tier Tribunal judge commented that Judge Lumley’s decision was exemplary in its exposition. I entirely agree and am happy to adopt it with those minor amendments as my own.

 

37 The appeal must therefore be dismissed.

 

 

David Williams

Upper Tribunal Judge

19 01 2012

 

[Signed on the original on the date stated]