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Permission has been granted by the Supreme Court to appeal against a decision of the Court of Appeal rejecting a claim that the Social Security (Disability Living Allowance) Regulations 1991, which operates so as to automatically suspend disability living allowance after a child has been in hospital for 84 days, breaches both article 8 and 14 ECHR. The provision in the 1991 regulations suspending disability living allowance affects around 500 of the most severely disabled children in the country each year. The evidence is clear that with respect to such children the caring and financial burden placed on their families increases when their child is in hospital. On behalf of the father of one such child (who sadly died during the course of these proceedings) it is argued that the Court of Appeal was wrong to have found that the discriminatory effects of the 1991 regulations were justified, the Appellant contending that they were “manifestly without reasonable foundation” and contrary to article 14 ECHR. It is also contended that the Court of Appeal was wrong when, in considering whether the impugned measure was justified, not to have given weight to the United Nations Convention on the Rights of the Child and the United Nations convention on the Rights of Persons with Disabilities.
The Supreme Court will also consider whether article 8 ECHR is engaged in circumstances where a state benefit is withdrawn and in doing so whether it should follow the approach of the European Court of Human Rights in McDonald v UK rather than its own approach in the same case, R(McDonald) v Kensington and Chelsea RLBC. Furthermore the Supreme Court will consider whether the Court of Appeal was wrong not to have found the 1991 regulations to be in breach of article 8 ECHR due to its assessment of the proportionality of the provision being inconsistent with the obligation to ensure that “the best interests of children are a primary consideration” as required by article 3 of the United Nations Convention on the Rights of the Child.
The judgment of the Court of Appeal can be found here, CM v Secretary of State for Work and Pensions [2014] EWCA Civ 286.
Ian Wise QC and Stephen Broach act for the deceased child’s father.