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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> Chief Adjudication Officer v. Carr [1994] UKSSCSC CIS_561_1992 (27 May 1994) URL: http://www.bailii.org/uk/cases/UKSSCSC/1994/CIS_561_1992.html Cite as: [1994] UKSSCSC CIS_561_1992 |
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Chief Adjudication Officer v. Carr [1994] UKSSCSC CIS_561_1992 (27 May 1994)
R(IS) 20/95
(Chief Adjudication Officer v. Carr)
Mr. D. G. Rice CIS/561/1992
16.4.93
CA (Glidewell, Hoffman and Hobhouse LJJ)
27.5.94
Applicable amount - prisoner on home leave - whether "detained in custody"
The claimant claimed income support while on five days home leave from prison. His claim was disallowed by the adjudication officer whose decision was upheld by a tribunal. The claimant appealed to a Commissioner, arguing that during the period of his home leave he was not detained in custody and was therefore not a "prisoner" under regulation 21 of the Income Support (General) Regulations 1987. The Commissioner allowed his appeal. The adjudication officer appealed to the Court of Appeal.
Held, allowing the appeal, that:
- (Hoffman LJ dissenting) the claimant was not "detained in custody" during his period of home leave, Safford v. Safford [1994] P 61 distinguished;
- but, in order to be entitled to income support, the claimant had to fulfil the requirement, imposed by section 20(3)(a) of the Social Security Act 1986, of being available for, and actively seeking, work because, while paragraph 18 of Schedule 1 to the 1987 Regulations provided that discharged prisoners were not required to be available for work for seven days commencing with the date of discharge, a person on temporary release had not been discharged.
The Court of Appeal remitted the case to the adjudication officer for the question of the claimant's availability for work to be determined.
[Note: The definition of "prisoner" in regulation 21(3) was amended by SI 1995 No. 516 with effect from 10 April 1995 so as to include persons on temporary release.]
DECISION OF THE SOCIAL SECURITY COMMISSIONER
"He is in the legal custody of the prison governor. In the extract from Prison Rule 6, temporary release, a prisoner may be recalled to prison at any time whether the conditions of his release had been broken or not. This was [the claimant's] situation paragraphs 12 and 13 of R(I) 9/75 support this view. He was, for the purposes of regulation 21(3) detained in custody, he was always under the control of his custodian, the Prison Governor."
Moreover the adjudication officer now concerned supports the above approach.
"'Prisoner' means a person who is detained in custody pending trial or sentence upon conviction or under a sentence imposed by a court other than a person whose detention is under the provisions of the Mental Health Act 1983 or Mental Health (Scotland) Act 1984."
The relevant question in the present instance was whether the claimant was "detained in custody .... under a sentence imposed by a court".
Date: 16 April 1993 (signed) Mr. D. G. Rice
Commissioner
The Chief Adjudication Officer appealed to the Court of Appeal. The decision of the Court of Appeal follows.
DECISION OF THE COURT OF APPEAL
Mr. N. Paines (instructed by the Solicitor to the Department of Social Security, London) appeared on behalf of the Appellant.
Mr. R. Allfrey (instructed by Jeff Braidsford Rimmer, Preston) appeared on behalf of the Respondent.
LORD JUSTICE GLIDEWELL: This is an appeal against a decision of the social security Commissioner Mr. D. G. Rice, given on 16 April 1993, that the claimant, Mr. Carr, was not disentitled to income support during a period of temporary release from prison.
At the relevant time in November 1991 Mr. Carr was serving a sentence of imprisonment in Layhill Prison. He was permitted by the Governor a period of home leave for five days from 11-15 November 1991, which formally was temporary release from prison. He claimed that he was entitled to income support for the five days. The adjudication officer decided he was not entitled to the benefit. On 16 March 1992, a SSAT dismissed his appeal against that decision. The social security Commissioner allowed the appeal against the tribunal's decision. The Chief Adjudication Officer now appeals to this Court, with leave, against his decision. The appeal is on a point of law only.
In order to decide entitlement to income support, it is necessary to look at part of the statutory scheme of the Act. The Act in force at the relevant time was the Social Security Act 1986. That has now been replaced by the Social Security Contributions and Benefits Act 1992. By section 20(1) of the 1986 Act:
"Prescribed schemes shall provide for the following benefits (in this Act referred to as "income-related benefits")-
(a) income support.
… …
(2) … …
(3) A person in Great Britain is entitled to income support if-
(a) he is of or over the age of 18 ......
(b) he has no income or his income does not exceed the applicable amount;
(c) he is not engaged in remunerative work and, if he is a member of a married or unmarried couple, the other member is not so engaged; and
(d) except in such circumstances as may be prescribed
(i) he is available for [and actively seeking] employment;
(ii) he is not receiving relevant education."
Those provisions are now contained in section 124 of the 1992 Act.
The combined effect of regulation 21(1) and paragraph 8 of Schedule 7 of the Income Support General Regulations 1987 is that the amount of income support to which a person who is a prisoner is entitled is nil. More simply put, the combined effect of those provisions is that a prisoner is not entitled to income support. However, "a prisoner" is defined in regulation 21 as:
"a person who is detained in custody pending trial or sentence upon conviction or under a sentence imposed by a court … … "
Mr. Carr, when he was in prison, was detained in custody under a sentence imposed by a court. He claims, however, that when he was on home leave on temporary release, he was not detained in custody under the sentence imposed on him by the court. Thus for the relevant period he was not "a prisoner" within the meaning the provision that the amount to which he was entitled was nil or that he was not entitled to income support, did not apply to him.
There is, however, another hurdle which Mr. Carr has to overcome in order to be entitled to income support. He has to satisfy the requirement to which I have already referred in section 20(3)(d), that at the relevant time he was available for, and actively seeking, employment. To that requirement there are exceptions. The subsection itself begins with the words "except in such circumstances as may be prescribed … ". Clearly, on the face of it, it may be thought that he was not available for or seeking employment since he was bound to return to prison at the end of the five days. But that is a matter of fact which may have to be gone into hereafter.
So far as the exceptions to that provision are concerned, they are contained in regulation 8 of the General Regulations:
"8(1) A person … to whom any paragraph of Schedule 1 (persons not required to be available for employment) applies in any week shall not be required to be available for employment in that week."
Turning to Schedule 1, paragraph 18 of that Schedule is headed "Discharged Prisoners" and reads:
"A person who has been discharged from detention in a prison, remand centre or youth custody institution but only or the period of seven days commencing with the date of his discharge."
Related back to the wording of regulation 8, that means that a person who has been discharged from detention in a prison is relieved from the necessity of being available for employment in order to claim income support for the first week after his discharge, no doubt to enable him to try and settle down at home before he has to go back into the labour market. The question that arises under those provisions is, had Mr. Carr, when he was on his home leave, been discharged from detention in a prison?
There are thus these two questions which arise on this appeal, to one of which I have just briefly referred. Firstly, was Mr. Carr, when he was enjoying temporary release, a prisoner for the purposes of the 1987 Regulations? Secondly, if so, was he not required to be available for work because he had been discharged from detention in a prison and the home leave fell within the period of the seven days following his discharge?
The second point simply did not arise at any stage during the various appeals and hearings. Thus it was not discussed before the Commissioner and he reached no conclusion upon it. However, Mr. Paines, for the adjudication officer, raises it in his Notice of Appeal and we therefore heard submissions about it.
I turn first to the first issue. Was Mr. Carr a prisoner? That is, was he at the relative time, detained in custody? So far I have been referring to the statutory scheme under the Social Security Act, but it is necessary also to look at the statutory scheme relating to imprisonment. By section 13 of the Prison Act 1952 as amended:
"(1) Every prisoner shall be deemed to be in the legal custody of the governor of the prison.
(2) A prisoner shall be deemed to be in legal custody while he is confined in, or is being taken to or from, any prison and while he is working or is for any other reason outside the prison in the custody or under the control of an officer of the prison … … "
It is the second subsection which in my view is relevant here. I believe that the first subsection merely indicates who is the prisoner's custodian when he is in legal custody. The answer is the governor of the prison. But subsection 2, amongst other things as will be seen, provides that he is to be deemed to be in legal custody if he is outside the prison under the control of an officer of the prison.
By section 47(5) of the 1952 Act:
"Rules made under this section may provide for the temporary release of persons detained in a prison … … "
Under that subsection, the Prison Rules 1964 were made. Rule 6 provides:
"(1) A prisoner to whom this rule applies may be temporarily released for any period or periods and subject to any conditions.
(2) A prisoner may be temporarily released under this rule for any special purpose or to enable him to engage in employment, to receive instruction or training or to assist him in his transition from prison life to freedom.
(3) A prisoner released under this rule may be recalled to prison at any time whether the conditions of his release have been broken or not."
In his argument to us, Mr. Paines draws a distinction between discharge of a prisoner, release on licence (which, at least at that time, would be normally release on parole licence) and temporary release. If, as I believe is the case, for this part of his argument he is submitting that temporary release had part characteristics of its own, I agree. He submits further that, since by definition a prisoner on temporary release may be recalled at any time, he is under the control of the prison governor during the period of temporary release. Thus, he remains in the legal custody of the governor. So it follows that a person on temporary release is "outside the prison in the custody or under the control of" the governor or one of the governor's officers.
In support of that submission Mr. Paines has drawn our attention to the decision of this Court in Safford v. Safford [1944] P. 61. As will be immediately apparent from the series of reports in which the appeal is reported, the circumstances and facts of that case were very different from the present case.
At that time, one spouse might present a petition for divorce on the ground that the other spouse was incurably of unsound mind and had been continuously under care and treatment for upwards of five years immediately preceding the petition. Under section 3 of the relevant legislation, the Supreme Court Act 1925, a person of unsound mind was to be deemed to be under care and treatment:
"while he is detained in pursuance of any order or inquisition under the Lunacy and Mental Treatments Acts 1890-1930 and not otherwise."
In that case, a husband who was subject to a reception order under the Act for his reception at a mental hospital in Yorkshire, had, nevertheless been sent home on short periods of home leave from time to time during the period of over five years preceding the presentation of the wife's divorce petition. According to the judgment of Lord Greene, the Master of the Rolls, who gave the first judgment, those periods of home leave fell into two classes. On 19 occasions overall there were short periods of two or three nights home leave, and there were also two periods of longer leave which lasted respectively for something over two weeks and something over six weeks. The question was whether those two longer periods of leave broke the period of detention so that it could not be said that the husband was detained in pursuance of the order made under the Acts. This Court held that he had been continuously detained for over five years. In other words, that the period of home leave did not break the period of detention. In his judgment, the Master of the Rolls said at page 66:
"It seems to me to be clear that all these absences are treated by the legislature, not as an interruption of the care and treatment with which part II is dealing, but as part of the care and treatment. They are methods of taking care of and treating the patient and obviously are or may be highly beneficial when the circumstances are such as to make them justifiable. Now, if these absences are not interruptions of, but methods of providing, care and treatment, and if I am right in thinking that detention is for the purpose of care and treatment, it must, I think, follow that they ought not to be regarded as interruptions of the detention. Detention is, I think, a matter, so to speak, of status during the existence of which certain methods of care and treatment are prescribed. If this view is right, detention is not interrupted by the application of these methods."
MacKinnon LJ, agreeing, said at the end of his judgment:
"When the husband here was allowed to visit his father under the conditions imposed by Dr. Davies, he was much more 'detained' in the East Riding Mental Hospital than a man was 'detained' in the Fleet Prison while he lived in the Rules, and the dirty man in the brown coat (No. 20 on the coffee room flight) whose story was told by Mr. Pickwick by Sam Weller in the Fleet was, I think 'detained' in that prison until he died although after seventeen years strict incarceration (for a debt of nine pounds multiplied by five for costs) he was for a long period let out daily by the turnkeys to spend his time in public houses."
The analogy is a colourful one, but it makes the point.
Mr. Paines argues that the principles enunciated by the Master of the Rolls and agreed with by the other two lords justices in Safford v. Safford apply equally here. Here, too, the purpose of the temporary release, as the statute says, is to enable the prisoner to habituate himself to conditions outside prison possibly to begin to rehabilitate himself, which will enable him to find employment; it is very similar to the situation of a person otherwise detained in a mental hospital for whom periods of home leave may well be a part of the treatment.
The Commissioner expressed his conclusion in paragraph 6 page 62 of his written decision:
"The claimant was, of course, undergoing a sentence imposed by a court. But was he 'detained in custody'? Needless to say, when he was in the prison, he was clearly detained in custody. But what was the position when he was released on licence for a period to go home to re-establish family contact? Whilst he remained under the ultimate control of the prison governor, in that he could be recalled at any time and his leave cancelled, unless and until that happened he would seem to me no longer in any form of detention. There was no restriction on where he could go or what he could do during the period of his release. So long as his leave was allowed to continue uninterrupted he was no longer in custody. Accordingly, at the time he made his claim, and as far as I am aware during the whole period for which the claim was made, the claimant continued free of custody. He was therefore not a prisoner, and not disentitled to income support."
On the normal and clear wording of the phrase "detained in custody", in my judgment that reasoning is impeccable. The only question is whether we should say that the reasoning in Safford v. Safford is reasoning which applies in this case because, although under a very different statutory regime, it nevertheless was dealing with a situation so close to that which obtains here that we ought to say that it governs our decision in this case.
I am not persuaded that that argument is correct. In my judgment, a person who is on home leave, is not, while he is free to come and go from his home until the end of his leave subject only to the restriction of a possible recall, is not under the control of the prison governor or any prison officer. The fact that home leave is part of the regime of imprisonment seems to me not to alter that fact. I note that here we are interpreting a phrase similar to, but different from, that which was the subject of Safford v. Safford. Here our concern is to interpret the phrase "a person who is detained in custody" not "a person who is detained under the relevant Acts", as was the case there. In my judgment Safford v. Safford was a decision on different words in a different statute which had a different statutory purpose. It does not persuade me that we should, indeed that we can, properly depart from what I am satisfied are the normal meaning of the words "detained in custody". Accordingly, I take the view that on that issue the learned Commissioner was correct, and as far as he was concerned, that was the only matter with which he dealt.
That brings me to the second issue which has been argued before us. Had Mr. Carr, while on temporary release, been "discharged from detention in a prison"? If the answer to that question was "Yes", he was not a prisoner for the purposes of the 1987 regulations. In my view, it is clear from the Prison Act and the rules made under it, that the word "discharge" is used normally to mean "discharge from prison at the end of the sentence of imprisonment" whenever that may be reached, as opposed to "release for a temporary period during the currency of the period of imprisonment". There is, however, an exception to that which, in my view, makes the position even more clear contained in section 28. Section 28 contains a provision for an exceptional form of discharge. It gives the Secretary of State power to discharge prisoners temporarily on account of ill health. If that power is used, however, the effect is to stop the sentence of imprisonment from running for the period of discharge. The prisoner is subject to recall to the prison and his sentence then starts to run again. So there is a time out of the sentence of imprisonment. Thus the word "discharge" is in my view, appropriate to somebody who, when he leaves the prison gate, albeit for a temporary period, is not subject to a sentence of imprisonment. The sentence of imprisonment will commence again when he is recalled. That is not so with temporary release. On temporary release his sentence of imprisonment is still running. I thus take the view that "discharge" is quite clearly contrasted, and to be distinguished from, "temporary release". The effect of that is that regulation 10(a) of the General Regulations:
"A claimant shall not be a person who is actively seeking employment where, by virtue of regulation 8 … he is not required to be available for employment",
is of no assistance to a person on temporary release because, as he has not been discharged, he does not come within paragraph 18 of regulation 8. In those circumstances, a person on temporary release will only be entitled to income support if he can show that during the period of his leave, he was "actively seeking employment". Such a circumstance is improbable in many cases, but certainly possible. It may be that the statutory scheme envisages that if a prisoner is granted home leave towards the end of his sentence of imprisonment for the specific purpose of rehabilitating himself, one of the other purposes is that of going out and seeking employment to commence when, as he knows will be the case in the near future, his sentence come to an end. In those circumstances it may be that such a person, if he has no other funds from any other source, is indeed entitled to claim income support. But that is a question of fact. So is the question whether the prisoner has funds from any other source. The prison governor has the power to provide a person released
temporarily with funds necessary for his maintenance, and it is a pure question of fact whether he has exercised that power.
On that issue, therefore, I agree with Mr. Paines' argument. But we cannot reach a final determination, we cannot put ourselves in the position of the relevant social security authorities, because we do not know the factual position. Accordingly, I would reject Mr. Paines' first argument advanced on behalf of the adjudication officer, but I would agree with his second argument. I would therefore allow the appeal and remit the matter to the adjudication officer for him to find appropriate facts.
LORD JUSTICE HOFFMANN: The Child Poverty Action Group handbook on social security benefits paraphrases the definition of a "prisoner" in regulation 21 of the Income Support General Regulations as follows:
"You count as a prisoner if you are in custody on remand, or are serving a custodial sentence."
The actual words or the definition are:
"A person who is detained in custody pending trial or sentence upon conviction or under a sentence imposed by a court."
In my judgment, the paraphrase in the handbook is precisely right. For the purposes of the regulations, a person is a prisoner throughout the period of his sentence until he has been discharged. This includes periods of temporary release under rule 6 of the Prison Rules 1964.
I think that the Income Support Regulations, so far as they deal with prisoners, should be read as a coherent whole. Ordinarily, a claimant for income support must be able to demonstrate that he is "available for and actively seeking employment". In other words, he must at least sign on. But paragraph 18 of Schedule 1 to regulation 8 excuses from this requirement a person who has been discharged from detention in prison for the period of a week after his discharge. For the reasons given by Lord Justice Glidewell, I agree that a person on temporary release has not been discharged. However, if such a person is also not a prisoner and therefore in principle ineligible for income support, the result is, in my view, highly anomalous. The week's exemption in paragraph 10 is presumably to give the discharged prisoner a period of recovery before he is obliged to try to re-enter the labour market. But if this is the reason, why should not a similar exemption be accorded to the prisoner on temporary release? The reasons why such a person should not be required to sign on and immediately re-enter the labour market during his five days maximum home leave seem to me at least as strong as in the case of the prisoner who has just been discharged. To my mind such a distinction makes no sense at all. I think that the reason why there is no such exemption for prisoners on temporary release is that the regulations do not contemplate that they are eligible for income support at all.
The Commissioner said in paragraph 7 of his reasons, that unless they were so eligible, there might be "undesirable consequences":
"It is possible to imagine a case of someone released on licence,"
by which I think he meant temporarily released under rule 6:
"for a period who, unless proper provision had been made for his maintenance during the period of his absence from prison, might be tempted to embark upon the very criminal activity which had been the cause of his initial incarceration."
I think that the prison authorities might be expected to share this insight and not to release a prisoner temporarily for home leave unless satisfied that the means are available for his support in order to prevent his having to support himself from crime.
In certain contexts I would agree that the words "detained in custody under a sentence imposed by the court" would mean that there must be close physical confinement or supervision. But in my judgment, these regulations are designed to be easily applied and do not contemplate enquiry into difficult questions of fact which may give rise to borderline cases. I think that the regulations are concerned with easily ascertainable legal acts, and refer to a person's legal status rather than to his physical surroundings. If he has been sentenced to imprisonment and not yet discharged, he is, in my judgment, a prisoner. It is equally clear that, for the purposes of the Prison Regulations, a prisoner on temporary release is still a prisoner. I see no reason why the definition in the Income Support Regulations should lead to a different result.
In relation to the word "detained" this construction derives support from Safford v. Safford. In relation to the word "custody", it derives support from section 13(2) of the Prison Act 1952, which deems a prisoner to be in the legal custody of the governor if he is for any reason outside the prison "in the custody or under the control of an officer of the prison". A person will be outside the prison in the custody of an officer if he is being escorted by an officer whose duty it is to prevent his escape. But being under the control of an officer is a wider concept and, in my view, requires only that the officer of the prison should have the right to control him not necessarily that he should actually physically be doing so. In this case the prisoner's temporary home leave was subject to controlling conditions, and under the central provisions of regulation 6 he could be recalled at any time. I think that this is sufficient for the purposes of the definition of legal custody.
For those reasons, for my part I would allow the appeal or he primary ground argued by Mr. Paines. I also agree with my Lord that it should be allowed for the secondary reason which he gave.
LORD JUSTICE HOBHOUSE: I agree with the judgment of Lord Justice Glidewell. I will only add a few words on the question of the meaning of the word "prisoner".
This turns upon the definition which the draughtsman of the regulations has chosen to give to that word in regulation 21. He has there provided that it means a person who is detained in custody pending trial or sentence upon conviction or under a sentence imposed by a court. He has not chosen to use as his definition. "a prisoner who has not been discharged". The definition narrows what might otherwise be the meaning that would be given to the word "prisoner".
As regards the use of a phrase such as "a prisoner who has not been discharged", it is not irrelevant to have in mind that in the same regulations in paragraph 18 of the first Schedule there is a reference to the discharge of a prisoner. That concept has not been used in the definition in regulation 21.
As a matter of the ordinary use of the English language, to describe a person who is on home leave as a person who is detained in custody, is not appropriate. A person who is released on home leave, albeit temporarily released, is not detained in custody, nor would the man in the street so describe him.
As a matter of the legal scheme, the same answer is found. References to prisoners who are detained in custody under a sentence imposed by a court clearly refer to people who are covered by the Prison Act 1952. Indeed, it is submitted on behalf of the Appellant that at the material time Mr. Carr was detained in the custody of the governor of the prison. Section 13 of the 1952 Act says:
"A prisoner shall be deemed to be in legal custody while he is confined in, or is being taken to or from, any prison and while he is working, or is for any other reason, outside the prison in the custody or under the control of an officer of the prison."
That sentence provides a definition of when somebody is in legal custody. As a matter of the scheme of that Act, somebody who is on temporary release is not in the custody of the governor at that time. He is not in the custody of an officer of the prison, nor is he whilst on leave under the control of an officer of the prison on any ordinary use of that word. The provision for temporary release allows conditions to be imposed; that derives from paragraph 6 of the relevant regulations. The conditions which applied to Mr. Carr merely require him to reside at a particular place, to be of good behaviour and, near the end of the relevant period, to report to a probation officer. They do not show that during the relevant period Mr. Carr was under the control of a prison officer. Counsel for the Appellant referred to regulation 6(3):
"A prisoner released under this rule may be recalled to prison at any tine whether the conditions of his release have been broken or not."
That merely means that his release can be brought to an end and in my judgment, does not mean that whilst released he is under the control of a prison officer.
Looking at the matter as part of scheme of the Prison Act, or as a matter of the drafting of the Income Support General Regulations or as a matter of the ordinary use of English, the answer is the same. Mr. Carr, at the material time, was not a person who was detained in custody under a sentence imposed by a court.
Order: Appeal allowed. Remitted to the adjudication officer. No order as to costs save Legal Aid taxation. Leave to appeal to the House of Lords refused.
