Supreme Court rules that suspending child's DLA after 84 days in hospital breached his human rights

Mathieson v Secretary of State for Work and Pensions (Respondent) [2015] UKSC 47

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The issue in this appeal was whether DLA could be paid to a child in hospital longer than 84 days. Following this decision the relevant law regarding DLA and PIP has been changed by SI 2016/556.

Cameron Mathieson was born on 19 June 2007. At his birth, part of his bowel had to be removed. Shortly afterwards he was diagnosed with cystic fibrosis and, later, also with Duchenne muscular dystrophy. The muscular dystrophy precipitated severe developmental delay. One area of it was in Cameron’s ability to communicate; so his father learnt the signs and symbols of Makaton in order better to communicate with him. Other conditions, including a clotting disorder and deep vein thrombosis in his left leg, made his needs even more complex.

His parents also had to learn how to administer chest physiotherapy to him, entailing chest percussion and postural drainage, for 20 minutes twice a day. Thereafter they had to prepare and administer nebulised antibiotics to him through special equipment, as well as a host of other medications and supplements.

On 4 July 2010 Cameron, who was showing symptoms of chronic bowel obstruction, was admitted to the specialist respiratory unit at Alder Hey Hospital, Liverpool. He was to remain there until 4 August 2011. The doctors considered that he had needs for an even more complex package of care, including intravenous feeding, which could not easily be set up for delivery to him by his parents at home.

Cameron was later to pass away at Alder Hey on 12 October 2012.

Cameron’s parents were in receipt on his behalf of the highest care rate and the highest mobility rate of DLA.

However, Regulations 8(1), 10, 12A and 12B of the Social Security (Disability Living Allowance) Regulations 1991 provide that, neither component of DLA can be payable to a child under 16 after they have been a hospital inpatient for 84 days.
As a result, a decision was issued to halt Cameron’s eligibility to be paid DLA from October 2010.

With a First Tier Tribunal an Upper Tribunal and then the Court of Appeal dismissing Cameron’s father’s appeal against the decision, his further appeal was heard by the Supreme Court.

Mr. Mathieson submitted that the rule suspending DLA payment after 84 days had breached his son’s rights under Article 14 of the European Convention on Human Rights (“the Convention”), entitled “Prohibition of discrimination”.
Article 14 provides that:

“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.”

In his invocation of article 14, Mr Mathieson needed to establish a link with one or more of the Convention’s other articles. The Secretary of State accepted that there was a link He alleges a link with Cameron’s rights to “the peaceful enjoyment of his possessions” under article 1 of Protocol 1 (A1P1).

The grounds of discrimination prohibited by article 14 Mr Mathieson relied were on the concluding reference to “other status”. The premise of his argument was that payment of the care component of DLA is expressly limited, and that the mobility component is in effect limited, to the “severely disabled”. Mr Mathieson argued that Cameron’s status was that of a severely disabled child who was in need of lengthy in-patient hospital treatment and that, in comparison with a severely disabled child who was not in need of lengthy in-patient hospital treatment, application to Cameron of the 84-day rule discriminated against him contrary to article 14.

The Secretary of State contended that purpose of suspending DLA after 84 days was to avoid “overlapping provision” to meet disability-related needs as the disability-related needs of children in hospital are met by the NHS.

However, substantial evidence was presented to the Court that this was not the situation in Cameron’s case.

For example, an advanced nurse specialist attached to the cystic fibrosis team at the unit later gave evidence of the important role played by Mr and Mrs Mathieson at Alder Hey during the 13 months of Cameron’s treatment there. She reported that:

  • Cameron’s care needs far exceeded those of any other child in the clinic;

  • the clinic relied heavily on Mr and Mrs Mathieson to undertake his daily care in the clinic;

  • one or other of Mr and Mrs Mathieson was resident in the hospital at all times;

  • “they remained his primary caregivers”;

  • the clinic relied on them to monitor his condition daily and on several occasions they were the first to notice deterioration in it;

  • they participated in all discussions and decisions about his care;

  • as they had done at home, they administered chest physiotherapy to Cameron at the clinic twice a day and thereafter the nebulised antibiotics;

  • they prepared and administered his feeding by nasogastric tube;

  • they administered warfarin to him in order to combat the clotting;

  • they changed his stoma bags up to eight times a day.

In a unanimous judgement upholding the appeal, the Supreme Court rule that there was an error of law in the tribunal’s analysis of Mr Mathieson’s case:

“First, it focussed upon the sort of attention which Cameron had received, or might have received, at Alder Hey in connection with bodily functions. His need for attention in connection with bodily functions had indeed been the threshold to his entitlement to the care component of DLA. But … there is no restriction on how DLA, once awarded, may, on his behalf and for his benefit, be deployed; and so it by no means followed that the inquiry into justification for the suspension should so narrowly be focussed.

The focus should be upon whether the disability related needs which Cameron exhibited at home continued to exist throughout his stay at Alder Hey and whether to a substantial extent Mr and Mrs Mathieson continued to attend to them there. In any event, however, the catalogue of care provided by them to Cameron at Alder Hey suggests that they there attended no less to his bodily functions than when he had been at home.

Second, it observed that the staff at Alder Hey would if necessary have provided for Cameron the care which Mr and Mrs Mathieson provided for him there. “As long”, said the tribunal, “as the general position is that the NHS will meet all in-patients’ disability-related needs (in the sense of those that might otherwise found an entitlement to DLA), the position has a rational foundation”. But what nursing staff need to do in the event that parents fail to perform the role expected of them is irrelevant.

The Supreme Court also rule that the volume of evidence submitted to it, that included two research reports by Contact a Family meant that tribunal the number of families which incurred additional costs as a result of their child’s admission to hospital was far from being a small minority.

As a result, the Supreme Court conclude that:

  • by his decision to suspend payment of DLA to Cameron, the Secretary of State violated his human rights under article 14 of the Convention when taken with A1P1;

  • in that the Secretary of State was not obliged by any provision of primary legislation to suspend the payment, he acted unlawfully in making the decision dated 3 November 2010: section 6(1) and (2) of the Human Rights Act 1998 (“the 1998 Act”);

  • accordingly the First-tier Tribunal should have allowed Cameron’s appeal against that decision; should have set it aside; and, should have substituted a decision that Cameron was entitled to continued payment of DLA with effect from October 2010 to the date from which payment of it was reinstated; and

  • the court should allow Cameron’s appeal and make the orders which the First-tier Tribunal should have made.

Mr Mathieson also asked the Court to discharge its interpretative obligation under section 3 of the Human Rights Act 1998 Act by somehow reading the provisions for suspension of payment of DLA in regulations 8(1) and 12A(1) of the 1991 Regulations so as not to apply to children.

However, the Court declined to do this holding that it may not always follow that the suspension of payment of a child’s DLA following his 84th day in hospital will violate his human rights.

“Decisions founded on human rights are essentially individual; and my judgment is an attempted analysis of Cameron’s rights, undertaken in the light, among other things, of the extent of the care given to him by Mr and Mrs Mathieson at Alder Hey. Although the court’s decision will no doubt enable many other disabled children to establish an equal entitlement, the Secretary of State must at any rate be afforded the opportunity to consider whether there are adjustments, otherwise than in the form of abrogation of the provisions for suspension, by which he can avoid violation of the rights of disabled children following their 84th day in hospital. “

Comment: This Supreme Court ruling could have a significant impact on the estimated 500 families with severely disabled children who spend extended time in hospital undergoing treatment. Research carried out by Contact a Family and The Children's Trust, who supported the Mathieson family, shows that of the families affected by the DLA suspension hospital rule 99% said they provide more or the same level of care when their child is in hospital compared to when at home.

The Supreme Court did not disapply the ‘84 day rule’ which meant that parents of children in hospital affected by the rule needed to appeal against a decision suspending benefit to their child citing the Mathieson judgment as a precedent and detailing the level of care they continue to provide. The rule is now disapplied under SI 2016/556