In a unanimous decision today (8 July 2015), the Supreme Court has held that the rule suspending payment of Disability Living Allowance after 84 days in an NHS hospital breached a disabled child’s human rights. The Appellant was represented by Ian Wise QC and Stephen Broach, instructed by Mitchell Woolf of Scott-Moncrieff and Associates.
The child, Cameron Mathieson, was aged 3 at the time his benefit payments were suspended in accordance with the relevant regulations on the basis that he had been an NHS hospital in-patient for more than 84 days. After his appeal was lodged Cameron sadly passed away and the appeal was pursued by his father Mr Mathieson, not only on behalf of his own family but also on behalf of hundreds of other families in a similar situation.
The Secretary of State’s case throughout the proceedings was that all disabled children’s disability-related needs are met by the NHS while they are in hospital. However the Supreme Court disagreed, citing evidence from the charities Contact a Family and the Children’s Trust which showed that the vast majority of families provided the same or more care to their disabled child once they entered hospital than they had done at home.
Lord Wilson, giving the majority judgment, concluded that the decision to suspend payment of Cameron’s DLA violated his human rights under Article 14 ECHR when taken with A1P1 (the right to peaceful enjoyment of ‘possessions’, which can include state benefits). The difference in treatment between disabled children in hospital and disabled children cared for at home could not be justified by the state. There was therefore a breach of the obligation to act in accordance with Convention rights imposed by section 6 of the Human Rights Act 1998.
The judgment will have direct significance for around 500 families with severely disabled children a year who currently lose their entitlement to receive DLA when their child has been in hospital for more than 84 days. It also has wider implications, for instance the broad approach taken by the Supreme Court to the question of whether Cameron had a relevant ‘status’ for the purpose of Article 14 ECHR and the weight given to the relevant international conventions, here the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities.
The Judgment can be found here.