UK Supreme Court rules withdrawal of disability living allowance to children in hospital could amount to a breach of the European Convention of Human Rights

A recent decision of the UK Supreme Court recently has indicated that the withdrawal of Disability Living Allowance (DLA) from a child who has spent more than 84 days in hospital can amount to a breach of the European Convention of Human Rights (ECHR).

Mathieson v Secretary of State for Work and Pensions concerned the withdrawal of benefits from Cameron Mathieson, a 3 year-old child who was born with bowel problems, diagnosed with cystic fibrosis and, later, with Duchenne muscular dystrophy.  This led to Cameron being hospitalised from July 2010 to August 2011.

Cameron qualified for the highest rate of the “care component” and “mobility component” of DLA under section 72 and section 73 of the Social Security Contributions and Benefits Act 1992 (“the Benefits Act”) respectively. However, such provisions are subject to section 73 of the Social Security Administration Act 1992 which provides that regulations may provide for adjusting benefit in circumstances whereby the benefit is payable to an individual undergoing medical or other treatment in hospital as an in-patient. The purpose of which is to prevent overlapping provision for the same need from public funds. Consequently the payment of DLA to Cameron was ended after his 84th day of admission to an NHS hospital.

The Supreme Court found that such provision constituted discrimination under the ground of “other status” of Article 14 of the ECHR and violated Article 1, Protocol 1 of the Convention where one possesses the right to “peaceful enjoyment of his possessions”. The government is obliged to administer DLA without discrimination on any of the grounds prohibited under Article 14. As disability is found to be a prohibited ground, discriminating between disabled people with different needs was held to be contrary to Article 14.

Through analysis of recent health care studies, the Court recognised that “there were both humanitarian and cost-saving advantages in encouraging parents to care for their children in hospital and indeed to reside with them there”. As a result, such evidence demonstrated that the financial and personal demand placed on parents of hospitalised disabled children are no less than when they care for them at home. Consequently, no overlapping occurs which would justify the discontinuing of DLA after the 84th day.

While the Court found for Cameron in this case, it refused to strike down the provisions relating to the suspension of DLA under the regulations, stating that it is the responsibility of the Secretary of State to decide what measures should be introduced to prevent the violation of rights of disabled children. Despite this however, the judgment highlights a potential ECHR breach which “may pave the way for many other disabled children to establish the same entitlement”.

 

 

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