The UK Supreme Court has determined that the removal of the Disability Living Allowance (DLA) from a child who had been receiving inpatient care for more than the prescribed 84 days was in contravention of his rights under Article 14 of the European Convention on Human Rights (ECHR).
The child in question suffered from cystic fibrosis, as well as bowel problems, and was hospitalised for over a year. The child’s parents continued to be primary caregivers during this period, feeding him through a tube and conducting daily physiotherapy. The child’s father challenged Section 10 of the Social Security (Disability Living Allowance) Regulations 1991 once DLA was suspended. The purpose of this section was to prevent ‘double provision’ by the State whereby if a child’s disability related needs were being taken care of by hospital staff, it should no longer be necessary to provide disability allowance to the parents of the child. The challenge was based on the anti-discrimination protections afforded by Article 14, with the Supreme Court ruling that the regulation did indeed constitute discrimination against the disabled child in this case. It considered the failure to evaluate the importance of parental care and the impact on the child to be unsatisfactory.
However the Court stopped short of striking the regulation down as inherently discriminatory. Lord Wilson instead advised that such human rights decisions were rooted in circumstances particular to each individual. As a result, the Section 10 rules remain and the suspension of DLA from disabled children will require each individual case to be taken into account to ensure that any suspension would not breach the individual’s human rights. The judgment essentially leaves Government agencies, and ultimately the legislators, to take measures to prevent any further discrimination of disabled children.
Click here for the full UK Supreme Court judgment.
Click here for the UK legislation concerning Disability Living Allowance.