England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
(UPPER TRIBUNAL JUDGE WARD)

		Royal Courts of Justice Strand London, WC2A 2LL
		5 February 2014

1. LORD JUSTICE LAWS: This is an appeal with permission granted by Sir Stanley Burnton against the determination of the Administrative Appeals Chamber of the Upper Tribunal (Upper Tribunal Judge Ward, of 15 January 2013. The Upper Tribunal set aside the earlier determination of the First Tier Tribunal ("the FTT") but remade the decision in the case in identical terms. The Upper Tribunal rejected the appellant's contention that the rights under Articles 8 and 14 of the European Convention on Human Rights enjoyed by his son, CM, who was born on 19 June 2007 but died on 12 October 2012, had been violated by Conventions 8 and 10 of the Social Security Disability Living Allowance Regulations 1991. The relevant effect of those provisions is to suspend payment of disability living allowance ("DLA") to a child who has been in hospital for more than 84 days. This court is asked to say that this rule is repugnant to Article 8 and Article 14 of the European Convention.
2. The appellant in the case was originally CM himself but since his untimely death the proceedings have been continued by his father, a course approved in this court by Sir Stanley Burnton granting permission to appeal.
3. The facts of the case are described in the Upper Tribunal's judgment and in the witness statement of the appellant, as I may now refer to the father. The following account is adapted from the helpful summary given in paragraphs 12 to 16 of the appellant's skeleton argument prepared by Mr Wise QC and his junior.
4. In early infancy CM was diagnosed with a number of severe medical conditions. They included cystic fibrosis, Duchenne's muscular dystrophy, clotting disorder, deep vein thrombosis in the right leg and developmental delay. There were also after effects of bowel surgery. He was one of only two children in the United Kingdom with the combination of cystic fibrosis and Duchenne's muscular dystrophy.
5. CM required a complex daily regimen of daily therapies, including chest percussion and postural drainage when he was well, and the provision of nebulised antibiotics through specially provided equipment when he had respiratory pathogens. He also needed vitamin supplements, antibiotics and sodium and pancreatic supplements each day.
6. Before his admission to hospital he lived with his father, mother and three older siblings. In order to administer medicines, communicate with their son and provide treatment his parents developed a considerable understanding of his conditions and the treatments which he required. His father, for example, trained in what is known as makaton at his own expense so as to facilitate communication with his son.
7. Before CM was admitted to hospital he was entitled to DLA at the higher rate of what is called the mobility component and the highest rate of the care component. It was on 4 July 2010, when he was only three, that he entered the Alder Hay Children's Hospital and remained there for a prolonged period. After 84 days the respondent Secretary of State ceased to pay the DLA. That remained the position until CM was at length discharged from hospital at the end of August 2011.
8. In the hospital there is no doubt at all but that CM's parents continued to provide with him with care. Miss Eleanor Burrows, who is an advanced nurse specialist in cystic fibrosis at Alder Hay, confirmed in a letter of 28 October 2010 that:

"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."

9. It is right that we should acknowledge the recognition at paragraph 2 of the FTT determination that these were loving and caring parents who were utterly devoted to the care of their son.
10. There is also evidence from the father as to the extent to which he and his wife participated in their son's care and in addition the financial burden of doing so. They bought meals at the hospital. There were transport costs and other matters. The father estimates that he incurred total additional expenditure of some £8,000 while CM was in hospital. The loss that was occasioned by the suspension of DLA amounted to a little over £7,000.
11. In due course the Upper Tribunal was to conclude at paragraph 50 of its determination that follows:

"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."

12. Mr Wise seeks leave to adduce new evidence in the shape of a report, "Stop the DLA take away Survey Report", produced by Contact the Family and the Children's Trust in March 2013. The report sets out the results of an online survey of 104 families having children who have spent long periods in hospital. The document is before us. It shows, putting it very broadly, that in a very substantial majority of the cases surveyed, parents provided high levels of care for their child while he or she was in hospital and incurred substantial expenditure in doing so. We have read and considered this evidence on a provisional basis.
13. We turn briefly to the Regulations. It is not necessary to set out the legislation at any length. The general rule is that:

"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)."

14. Without condescending to the detail it is important, as Mr Buley for the Secretary of State pointed out this morning, that DLA under the regulations is provided (primarily certainly) in connection with bodily functions; see section 71(1) of the Social Security Contributions and Benefits Act 1992.
15. The policy of the general rule as to the withdrawal of DLA while the subject is in hospital was described by the Minister in Parliament on 25 March 2003, House of Commons Debate 26 WH to 28 WH, as based on "the rule against overlapping provisions": that is "that the state will not pay two benefits for the same contingency." The Minister stated that "all in patients' disability related needs are met by the NHS." She added, and this is of obvious significance in the present case:

"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."

16. We have the whole passage from Hansard before us, and have of course considered it. It is substantially referred to in Mr Buley's skeleton argument for the respondent.
17. As is well known, Article 8 of the European Convention on Human Rights provides:

"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."

18. Article 14 provides:

"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."

19. As is apparent from that text, Article 14 is not freestanding. It requires the other substantive Convention rights to be secured without discrimination. It does not require a breach of any of those rights to be proved; rather it sets a standard for the distribution of the Convention rights by the Member States of the Council of Europe.
20. It is well established by authority that not every difference in treatment on the stated grounds in the context of any of the Convention rights will violate Article 14. Differential treatment may be justified; and the principal issue in this case is one of justification, as I shall shortly explain. It is convenient first to address a different contention advanced by Mr Wise, namely that the 84 day cut off provision in children cases perpetrates on the facts a violation as such of CM's substantive rights under Article 8.
21. It is not I think contentious that Article 8 does not generally impose a positive obligation to provide state benefits. The Secretary of State acknowledges by paragraph 6 of Mr Buley's skeleton argument that the learning demonstrates that there might be such an obligation where some provision is needed for the avoidance of destitution. But plainly with respect to the appellant and his family, that is not this case.
22. Mr Wise has referred, amongst other cases, to the case of HC [2013] EWHC Admin 982. That was concerned, however, with the treatment of children in the criminal justice system. Despite Mr Wise's submissions this morning, in my judgment it throws no light on the reach of any positive obligation in a child case to provide social security. Nor does this or any other authority found a basis for an interpretation of Article 8 in light of the United Nations Convention on the Rights of a Child which might help Mr Wise. He has made submissions about the UNCRC this morning and I will make brief further reference to them, but there is nothing here to shift the constant position so far of the court in Strasbourg: to put it negatively, it has never held that the failure of the state to provide financial support to a person represents a violation of Article 8. So much was stated by Wilson LJ as he then was in TG v Lambeth London Borough Council [2011] Housing Law Reports 33 and one may compare the case of Chapman v the United Kingdom [2001] volume 33 EHRR 18 in Strasbourg. It cannot make a difference, despite Mr Wise's suggestion to the contrary this morning, that this case concerns the withdrawal rather than the grant of a social security benefit. There is here in my judgment simply no basis for any finding of a direct violation of Article 8.
23. I turn then to Article 14. Mr Buley accepts at paragraph 21 of his skeleton that social security payments fall within the scope of Article 1 of the First Protocol to the Convention, that is the provision which guarantees property rights. This means that CM was accordingly entitled to raise a complaint of discrimination contrary to Article 14 in relation to the rules governing entitlement to DLA. In those circumstances it is perhaps unnecessary to enter into the debate as to whether the case also falls within the scope of Article 8. The cases of Petrovic v Austria [2001] 33 EHRR 14 and Okpisz v Germany [2006] 42 EHRR 32, suggest that a case such as this may fall within its scope; but Mr Wise is in any event entitled to raise his arguments on Article 14.
24. In the context of Article 14 the Upper Tribunal accepted that there was discrimination against CM on the grounds of his "status"; see paragraphs 32 to 35 of their determination. The status in question consists in the characteristic of being a person under 16 entitled to DLA whose disability, however, means that he has to stay in hospital for more than 84 days. Mr Buley does not accept that this characteristic amounts to "other status" within the meaning of Article 14, but given the respect due to the specialist Upper Tribunal (following the decision of this court in Obrey [2013] EWCA Civ 1584) he does not seek to contest the point. We are content, not without some misgivings, to proceed on the basis that CM has suffered discrimination by virtue of his status. The question, then, as I have foreshadowed, is whether the decision is justified.
25. The test for justification by which we are bound is described by Baroness Hale of Richmond in the Supreme Court in Humphreys [2012] volume 1 WLR 154 52:

"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 [2006] 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 [2007] 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."

26. It is not necessary to go into the facts of Humphreys. It is accepted on all hands that the test applicable in this case is the "manifestly without reasonable foundation test." However, Mr Wise rightly points out that Lady Hale also made this observation at paragraph 20 in Humphreys:

"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."

27. Mr Wise places at the forefront of his submissions the proposition that the Upper Tribunal failed to accord sufficient scrutiny to the Secretary of State's justification and there is no sufficient evidence -- I think he would say there is none -- that in truth supports that justification. I shall of course come to that.
28. Mr Wise is also at pains to emphasise the special attention which the jurisprudence shows has to be accorded to the best interests of children. There is much authority about this. Mr Wise took us this morning to the recent decision of the Supreme Court in Zoumbas [2013] 1 WLR 3690. Zoumbas, like other leading cases on the impact of children's interests, concerned the application of the proportionality test to the question whether an interference with the Article 8 right was justified having regard to Article 8.2 considerations, whereas here we are concerned with justification for the purposes of Article 14. The summary given by Lord Hodge of the earlier learning concerning the best interests of the child is however, with great respect, helpful; but as it seems to me this has to be set against the observations of Elias LJ in the Divisional Court in JS v the Secretary of State for Work and Pensions [2013] EWHC Admin 3250, which was concerned with the cap imposed on benefits by the Welfare Reform Act 2012. At paragraph 77 Elias LJ said this:

"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."

29. Mr Wise in the present case has by no means sought to resile from the manifestly unfounded test, but he has submitted that the jurisprudence concerning the best interests of the child qualifies that test; or rather is a very important element in the court's assessment of the question whether the test is met or not.
30. Let me turn more generally to the question of justification. It is important first to be clear that in a context such as this the rule maker, the Secretary of State, is entitled to adopt a brightline rule. That was accepted by the Upper Tribunal. Upper Tribunal Judge Ward at paragraph 44 cited Lord Hoffmann in Carson [2006] volume 1 AC 173 as follows:

"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."

31. Upper Tribunal Judge Ward in the present case continued in the next paragraph of the determination, paragraph 45, as follows:

"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."

32. In my judgment this reasoning is correct. Moreover, and perhaps more importantly, in the paragraphs which follow (46 to 50) the Upper Tribunal gave what seem to me to be full reasons for its conclusion that the brightline rule was lawfully drawn. I will not set out the whole passage, which I regard as entirely sustainable. The essence of it is that there is a qualitative difference in terms of the location and financing of the provision of care between the situation of disabled persons, here children, in hospital and those not in hospital. Based on that difference as it is, the rule complained of cannot as I see it be said to be manifestly without reasonable foundation.
33. Mr Wise, however, submits, and I have foreshadowed this, that there was no real evidence to support this general difference. He refers to the new evidence. I will come to that. He says there is no reasonable relationship between the policy's legitimate aim and the suspension of DLA in children cases.
34. However it seems to me -- to put the matter, I hope without any injustice, as shortly as I can without setting out the whole of the passage in the Upper Tribunal's determination -- that this argument cannot withstand the truth of this qualitative difference. Here is what the Upper Tribunal said in one part of the passage at paragraph 46:

"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."

35. It seems to me that this passage emphasises what is an important feature of the case, namely that the specific purpose for which DLA is paid is assistance in connection with bodily functions. That is the context in which the duties and support owed and given by the NHS falls to be viewed in a case of this kind.
36. This conclusion is not, with respect, undermined by the international treaty obligation of the United Kingdom to which Mr Wise has referred. They are contained in the UN Convention on the Rights of the Child which I have already referred to in passing and also the Convention on the rights of persons with disabilities. In this case there is in my judgment no point at which it would be right to have recourse to these instruments in order to give a steer to the proper interpretation, either of domestic legislation or of the Convention.
37. Mr Wise has this morning energetically submitted that the UNCRC strengthens the force of the need to accord a prime concern to the interests of the children, but with respect this is in the circumstances rhetorical; the 84 day rule represents special consideration given to those very interests.
38. As regards the new evidence relied upon by Mr Wise, assuming that it is rightly admitted, it adds little; similar material was before the Upper Tribunal. It does not undermine the brightline rule based on the qualitative difference I have described. The cases of children affected by the 84 day rule must vary greatly. The suspension of DLA will press harder on the family in some cases than in others. Mr Wise's proposed amendment to the rule at the end of his skeleton, adding the words "except as far as it is necessary to avoid a breach of any person's convention rights" would abolish the brightline rule in favour of an entirely ad hominem approach. In my judgment the law does not require anything of that kind to be done, and it would be very surprising if it did.
39. This is truly a tragic case. These loving parents have lost a child to whom they devoted much selfless care, and at no little cost. But in my judgment for the reasons I have given the Regulations sought to be challenged are entirely lawful. The argument to the contrary invites the court to regulate the distribution of public resources in this field. There is no justification for the court to do so, despite Mr Wise's skilful and well judged submissions.

I would dismiss the appeal.

40. LORD JUSTICE UNDERHILL: I agree.
41. LORD JUSTICE RYDER: I also agree.