Upper Tribunal Dismisses Human Rights Challenge to Disability Benefits for Disabled Hospital Inpatients
In MOC (by MG) v SSWP (DLA)  UKUT 0134 (AAC) Upper Tribunal Judge Ward dismissed an appeal from the First Tier Tribunal (Social Entitlement Chamber) (“FtT”) in which the Appellant argued that the ‘hospitalisation rule’ in Reg. 8 Social Security (Disability Living Allowance) Regulations 1991 unlawfully discriminated against him contrary to Article 14.
Trinity barrister, Alice Richardson instructed by the Government Legal Department, successfully represented the Secretary of State for Work and Pensions.
The Appellant was born in 1961. He suffered from a number of significant medical conditions and disabilities including Down’s Syndrome and severe learning disabilities. He was deaf and blind and had physical disabilities. He had been in receipt of DLA, and its predecessor benefits, at the highest rates for many years.
In 2016 the Appellant was admitted to hospital. The Department of Work and Pensions’ (“DWP”) decided that it could not pay the Appellant DLA after 28 days in hospital. That decision was taken as a result of Reg. 8 of the DLA Regulations which prevents overlapping provision for the same contingency out of public funds. Essentially because the Appellant was having his needs met by the NHS he ceased to be eligible for DLA (although he remained eligible for other social security benefits).
Prior to June 2016, the DLA Regulations had made provision to similar effect where a child was an in-patient after an initial 84 days. However, in Mathieson v SSWP  UKSC 47, the Supreme Court concluded that the rule infringed the rights of Cameron, the child concerned, under Art.14 and A1P1 of the European Convention on Human Rights and, applying s.3 of the Human Rights Act 1988, fell to be disapplied.
The relevant regulation was subsequently repealed in relation to children but retained in relation to adults.
In this appeal, the Appellant submitted that, for reasons similar to those in Mathieson, the DLA Regulations were an infringement of his Art.14 rights.
Article 14 of the European Convention on Human Rights provides:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Article 14 does not provide a free-standing right. It can only be relied upon if another Convention right is engaged but it had been accepted in Mathieson that DLA fell within the scope of A1P1 (protection of property).
The issues for the Tribunal were:
- Did the Appellant have an ‘other status’ under Article 14 and what was the appropriate comparator group?
- Was the differential treatment justified?
The Secretary of State conceded, by analogy with the Supreme Court’s ruling in Mathieson, that the Appellant had the status of a severely disabled adult in need of lengthy inpatient hospital treatment. However, the Appellant submitted that there were two other statuses to which the claimant may properly lay claim, namely:
(a) an incapacitous severely disabled adult in need of lengthy in-patient hospital treatment; and/or
(b) a severely disabled adult who lacks capacity to make decisions about care and medical treatment in need of lengthy in-patient treatment.
The comparators were said to be a severely disabled child in need of lengthy inpatient treatment or a severely disabled adult with no such requirements. A third alternative is provided by the situation of a severely disabled adult in need of lengthy inpatient treatment but who does not lack capacity. In this last case, the discrimination is said to consist of a failure to treat differently people whose circumstances are relevantly different i.e. so-called Thlimmenos discrimination.
This was resisted by the respondent, essentially on the ground that because issues of capacity are issue-specific and because capacity may come and go, they lack a sufficient quality of durability to constitute a status and that a court should be slow to find a status based on lack of capacity because of the administrative difficulties to which it would give rise.
On that issue UTJ Ward noted:
“I accept that there is no easy proxy for determining whether or not a person is lacking in capacity, whether for decisions about care and medical treatment or otherwise. In the present case, a Deputy has been appointed, with functions which make the question relatively straightforward to answer. Others may have given a lasting power of attorney in respect of personal welfare decisions, in which case the Office of the Public Guardian should have been informed if it is suspected that a person is losing capacity. In yet further cases, no such formal arrangements will have been put in place and whether a person has capacity for a particular decision or not will have to be assessed on the spot in accordance with the provisions of the Mental Capacity Act. Whilst it may be the case that assessments of the capacity of a person who is in hospital but who does not have a Deputy nor has given a power of attorney for personal welfare may have to be carried out and should be recorded, not only would it be a considerable burden on the DWP to obtain that record and on NHS staff to provide it, but more fundamentally, if lack of capacity is the trigger for finding that there has been a breach of a claimant’s human rights, a breach which is not present when the person does have capacity, there is a risk of people moving in and out of being the subject of a breach of the ECHR on a virtually daily basis.”
The judge therefore preferred the Secretary of State’s submissions on the alternative statuses and comparators.
The judge went on to consider the Secretary of State’s evidence on the justification for the rule which explained that it is a “fundamental principle of Government” to prevent duplication of funding for the same contingency out of public funds. The duties of the NHS under s.3 of the National Health Service Act 2006 meant that the NHS is responsible for meeting the day-to-day costs of an individual’s accommodation, board, care and treatment free of charge whilst they are in hospital.
The Secretary of State’s evidence was that the annual cost to the public purse, it the rule was revoked, would be an estimated £100m. She had also provided evidence from a medical doctor working for the DWP as to how the care needs of disabled persons were met by the NHS.
The judge held that the lack of evidence from the Appellant to counter that evidence was “striking”. In contrast with the position in Mathieson in the Supreme Court, there was (a) evidence from the DWP about how the system was intended to operate where adults with learning disabilities were in hospital and (b) a lack of evidence on the Appellant’s side to cast doubt on it.
The judge was not satisfied that, in general, family members were required to assist in proving care to a person with learning disabilities who is in hospital. Their experience of the person may well be a valuable resource for medical and nursing staff to draw upon, but would not necessitate the very high degree of attendance claimed in this case. Family members may wish to attend to support the patient, as they might for anybody who was in hospital, but that does not make out an equivalent situation to that which prevailed in Mathieson.
The judge did not consider that it made a material difference that, as in this case, a person was acting as Deputy because the Appellant lacked capacity. The responsibilities of the Deputy are cast in terms of taking decisions, rather than the direct provision of care.
There was no doubt that the Deputy’s sense of responsibility and love and concern for her brother led her to perform her duties as Deputy assiduously and to provide a very considerable level of support, in person and/or by other family members, but the lawfulness of the hospitalisation rule could not be determined by what may come to be done in an individual case, irrespective of what is objectively required.
In contrast with Mathieson, it was relevant that other benefits continued in payment. Unlike in Mathieson, where there was evidence that the ceasing of payability of DLA caused Cameron’s parents to sustain a loss of some £7,000, in the present case there was no indication that expenditure rose by an amount which could not be contained within the means-tested benefits remaining available to the appellant.
If, contrary to that view, the Deputy and others were required to provide care to the extent claimed, there was no indication that that was a frequent situation and the case should be seen as a hard case, falling the wrong side of a bright line.
The DWP’s Equality Impact Assessment on retention of the hospitalisation rule for adults rebutted the criticism made by the Appellant that, consideration had not been given to the specific needs of incapacitous severely disabled people
Lastly, returning to the question of a comparator, the position was different from that of a severely disabled child in need of lengthy inpatient hospital treatment, because of what was shown by the evidence about differing patterns of care for adults and children.
The position was different from a severely disabled person who is not in receipt of lengthy hospital inpatient treatment because the person who is not in hospital is not receiving publicly funded care via the NHS, while the person in hospital is.
As regards the complaint of Thlimmenos discrimination by failing to treat the Appellant differently from a capacitous severely disabled adult in need of lengthy in-patient treatment, the Appellant had not shown that the consequences of the his lack of capacity were such that their situations were relevantly different.
The Appeal was dismissed.
Alice Richardson is a member of Trinity's Administrative and Public Law team. She was appointed to the Attorney General's regional panel of counsel in 2018 and the Equality and Human Rights Commission panel of counsel in 2019. Alice accepts instructions from both public bodies and claimants and can be contacted on 0191 232 1927 or by emailing the clerking team firstname.lastname@example.org