ON APPEAL FROM THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
(UPPER TRIBUNAL JUDGE WARD)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE RYDER
LORD JUSTICE UNDERHILL
| AM (BY HIS FATHER CM)
|THE SECRETARY OF STATE FOR WORK AND PENSIONS
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Mr T Burley (Instructed by Treasury Solicitors) appeared on behalf of the Respondent
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"CM's care needs far exceed those of any other child in our clinic and we rely heavily on his parents to undertake his daily care whilst he is in hospital. They have an essential role to play in CM's daily care and are independent with a wide range of activities to ensure that he is being cared for at all times by them within the hospital setting. We rely on them to monitor his condition daily and report any deterioration in his condition. They are involved in the daily ward round discussions and all decisions regarding CM's care and on several occasions have recognised deteriorations in CM before anyone else."
"In the present case the evidence at its highest shows that (a) the claimant's parents had less money than they otherwise might have had (b) shortage of funds resulted in less frequent visits to or by C when he could meet his siblings (c) the frequency with which the parents could go backwards and forwards was reduced resulting in their spending significantly less time with each other or with the other members of the family (d) members of the family have experienced some difficulties of health and/or in their relationships."
"DLA is not payable while the person in question is maintained free of charge while under going medical or other treatment as an inpatient (a) in a hospital or similar institution under the National Health Service act. See regulation 8.1."
But exceptions provide:
"Notwithstanding regulation 8.1 DLA remains payable for the first 28 days of the person's stay in hospital (see regulation 10.1) or if the person is a child under 16 years, 84 days (regulation 10.2)."
"The difference between the arrangements for adults and for children is a recognition of the therapeutic value of visits and treats for a disabled child who is adjusting to life in hospital."
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others."
"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."
"The scope of this margin, that is the margin of appreciation, will vary according to the circumstances, the subject matter and the background. As a general rule fairly weighty reasons would have to be put forward before the court would regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention. On the other hand, a wide margin is usually allowed to the state under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds and the court will generally respect the legislature's policy unless it is 'manifestly without reasonable foundation'."
Baroness Hale continued, after a review of authority:
"It seems clear from STEC  43 EHRR 1017, however, that the normally strict test for justification of sex discrimination and then enjoyment of the Convention rights gives way to the 'manifestly without reasonable foundation' test in the context of state benefits. The same principles were applied to the sex discrimination involved in denying widows' pensions to men in Runkee v the United Kingdom  volume 2 FCR 178-paragraph 36. If they apply to the direct sex discrimination involved in the STEC and Runkee cases they must, as the Court of Appeal observed at paragraph 50, apply a fortiori to the indirect sex discrimination with which we are concerned."
"The fact that the test is less stringent than the 'weighty reasons' usually required to justify sex discrimination does not mean that the justification for the rule should escape careful scrutiny. On analysis it may indeed lack a reasonable basis."
"At one stage in his submissions Mr Wise seemed to resile from accepting that the manifestly unfounded test applies. He suggested that it should be replaced by the best interests of the child test laid down in ZH. That is a misconception. For the reasons that we have given we accept that the Secretary of State must have regard to the best interests of the children as a primary consideration and he did. The question is whether, having regard to that fact and that some children will plainly be disadvantaged by the cap, the decision to impose the cap is manifestly without reasonable foundation."
"45. Miss Reynolds complains of discrimination in terms of Article 14 because for some of the time when she was under 25 years of age she received less by way of jobseeker's allowance and income support than people of 25 and over. In other words she was discriminated against on the grounds of her age. There is no doubt that the relevant regulation endorsed by parliament deliberately gave less to those under 25. But this was not because the policy makers were treating people under 25 years of age as less valuable members of society. Rather, having regard to a number of factors, they judged that the situation of those under 25 as a class was different from that of people 25 and over as a class. For example, in broad terms those under 25 could be expected to earn less and to have lower living costs. Moreover, paying them a smaller amount of benefit would encourage them to live with others rather than independently, something that was regarded as desirable in terms of general social policy. The scheme also had certain administrative advantages. In my view, having regard to these and other factors, it was open to ministers and parliament in the exercise of a broad political judgment to differentiate between the two groups and to set different levels of benefit for them. Drawing the bright demarcation line at 25 was simply one part of that exercise. It follows that the difference in treatment of which Miss Reynolds complains easily withstands scrutiny and there is no unlawful discrimination in terms of Article 14."
"Mr Buley relies on this to submit that by the same token it is legitimate for the respondent to form his policy and so draw up legislation on the basis that as a class persons in hospital will be in a different position from those not in hospital in that separate provision is made for them out of some separate source of public funds and that that has the effect of reducing or obviating entirely the needs which would be met out of DLA for a person in the community. Once the policy is recognised as legitimate the respondent is not required then to disapply that policy in a particular case because it may cause hardship, including through providing only incomplete assistance to some people within its intended target group. I accept that the use of a bright line rule is permissible, even though it may have the consequences of which Mr Buley identifies. Although the number of cases is not large, the scope of the examination which would have to be conducted on a case by case basis if Mr Broatch's position were adopted would be considerable. The merits of bright lines which have real benefit in terms of administrative efficiency, freeing up resources to be paid to those who need them, are relevant to the proportionality assessment, although that in my view still leaves the question of why a bright line is set where it is."
"I am not persuaded that the evidence in this case suggests that at the most basic level of the sort of attention in context with bodily functions needed to establish a claim for the care component of DLA that the situation was in general any different at the time we are considering from that stated by Miss Eagle [she was the minister in 2003]. While I accept that there is no direct correlation between what constitutes 'attention in connection with bodily functions' and nursing care, the Secretary of State's statutory duty in respect of the latter does provide a measure of support for the minister's position. If C's parents in the course of rising lovingly to the challenge which their son's disability posed, attended to aspects of personal care such as the emptying of stoma bags, administration of medicines, supplements or performing physiotherapy, as well as a whole host of activities directed at the well being of C and of the family as a whole, it still does not mean that the NHS would not have done the former group if the need had arisen."
I would dismiss the appeal.