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Neutral Citation Number:	2013 UKUT 27 AAC
Reported Number:
File Number:	CDLA 937 2012
Appellant:	Mathieson
Respondent:	Secretary of State for Work and Pensions
Judge/Commissioner:	Judge C G Ward
Date Of Decision:	08/07/2015
Date Added:	31/01/2013
Main Category:	Human rights law
Main Subcategory:	article 8 (private and family life)
Secondary Category:	DLA, AA: personal care
Secondary Subcategory:	other
Notes:	Supreme Court decision reported as [2015] AACR 19. Human rights – Article 14 – whether 84-day rule for disability living allowance for child in hospital discriminatory Disability living allowance – children in hospital – suspension of payment The appellant’s son was born in 2007 and diagnosed with cystic fibrosis and Duchenne muscular dystrophy. He required complex daily care from his parents, and was awarded disability living allowance (DLA). In July 2010 he was admitted to hospital, but his parents remained his primary caregivers with one always present until he left hospital in August 2011. The Secretary of State for Work and Pensions suspended the son’s DLA payments under the Social Security (Disability Living Allowance) Regulations 1991 with effect from 6 October 2010, 84 days after his admission. An appeal was submitted on the grounds that the suspension breached the son’s right not to be discriminated against under Article 14 of the European Convention on Human Rights, read with the right to the peaceful enjoyment of his possessions in Article 1 of the First Protocol to the Convention. The First-tier Tribunal (F tT) dismissed the appeal. Following his son’s death in 2012 the appellant proceeded with the case. The Upper Tribunal (UT) set aside the F tT’s decision on the ground of an error of law but dismissed the appeal. The Court of Appeal upheld the UT’s decision. The appellant appealed to the Supreme Court. The Secretary of State conceded that the provision of DLA fell within the scope of Article 1 of the First Protocol but contended that the son had no “status” within Article 14 on which the decision to suspend his DLA was based and that the 84-day rule was justified as a means of avoiding overlapping provision for disability-related needs. Held, allowing the appeal, that: 1. (per Lord Wilson, Lady Hale, Lord Clarke and Lord Reed) the son had a status falling within the grounds of discrimination prohibited by Article 14 of the Convention, as a severely disabled child in need of lengthy in-patient hospital treatment. Disability was a prohibited ground, and discrimination between disabled persons with different needs engaged Article 14 as much as discrimination between a disabled person and an able-bodied person. Alternatively, (per Lord Mance, Lord Clarke and Lord Reed) the son as a child hospitalised free of charge in an NHS hospital had a different status from that of a child not so hospitalised. In either case the difference in treatment would be discriminatory, contrary to Article 14 read with Article 1 of the First Protocol, if it had no objective and reasonable justification (paragraphs 17 to 18 and 21 to 23 and 60); 2. a difference in treatment on a prohibited ground was justified if it pursued a legitimate aim and there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised: Stec v United Kingdom (2006) 43 EHRR 47. Courts would not interfere with the government’s approach to the provision of social benefits, unless the rule to be applied was manifestly without reasonable foundation. Nor should a bright-line rule be invalidated because hard cases fell on the wrong side of it, provided that the rule was beneficial overall: Humphreys v The Commissioners for Her Majesty’s Revenue and Customs [2012] UKSC 18; [2012] 1 WLR 1545; [2012] AACR 46 (paragraphs 24 and 26 to 27); 3. the aim of the 84-day rule was to avoid double provision for the same disability-related needs, in this case National Health Service in patient care and payments of DLA. However, state provision for disabled children in hospital was not overlapping to an extent which justified the suspension of DLA after the 84th day; not all the disability-related needs of children in hospital were met by the NHS, and the appellant’s situation was not a hard case. The personal and financial demands on the substantial majority of parents who helped to care for their disabled children in hospital were no less than when they cared for them at home (paragraphs 28 to 41); 4. the UN Convention on the Rights of the Child provided that the best interests of the child were a primary consideration for all public bodies, including the courts. It analysed a child’s “best interests” in terms of a three-fold concept. The Secretary of State had breached the procedural rule which constituted the third aspect of the concept by failing to evaluate the possible impact of the decision to suspend payment of DLA to children following their 84th day in hospital. Breach of the procedural rule had violated the first aspect of the same concept, the substantive right of disabled children to have their best interests assessed as a primary consideration (paragraphs 39 to 41); 5. the Secretary of State’s decision had violated the son’s human rights under Article 14 and should be set aside, substituting a decision that he had been entitled to continued payment of DLA with effect from 6 October 2010 to the date from which payments had been reinstated (paragraphs 28 and 48).
Decision(s) to Download:	CDLA 0937 2012-00.doc [2015] AACR 19ws.doc