UKSC 47
On appeal from:  EWCA Civ 286
Cameron Mathieson, a deceased child (by his father Craig Mathieson) (Appellant) v Secretary of State for Work and Pensions (Respondent)
Lady Hale, Deputy President
JUDGMENT GIVEN ON
Heard on 26 March 2015
Ian Wise QC
(Instructed by Scott-Moncrieff & Associates Ltd)
(Instructed by Government Legal Department)
LORD WILSON (with whom Lady Hale, Lord Clarke and Lord Reed agree):
(a) Cameron's care needs far exceeded those of any other child in the clinic;
(b) the clinic relied heavily on Mr and Mrs Mathieson to undertake his daily care in the clinic;
(c) one or other of Mr and Mrs Mathieson was resident in the hospital at all times;
(d) "they remain[ed] his primary caregivers";
(e) the clinic relied on them to monitor his condition daily and on several occasions they were the first to notice deterioration in it;
(f) they participated in all discussions and decisions about his care;
(g) as they had done at home, they administered chest physiotherapy to Cameron at the clinic twice a day and thereafter the nebulised antibiotics;
(h) they prepared and administered his feeding by nasogastric tube;
(i) they administered warfarin to him in order to combat the clotting; and
(j) they changed his stoma bags up to eight times a day.
"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."
It is enjoyment only of the rights and freedoms set out in the Convention which the article requires to be secured without discrimination on any of the identified grounds. The framers of the article did not wish the prohibition of discrimination to extend beyond the four corners of the other articles. A free-standing prohibition of discrimination in the enjoyment "of any right set forth by law" and indeed generally, on any of the identified grounds, was introduced much later in the Twelfth Protocol; but the UK has not signed it.
"The more peripheral or debateable any suggested personal characteristic is, the less likely it is to come within the most sensitive area where discrimination is particularly difficult to justify."
"60 … The question whether there is a difference of treatment based on a personal or identifiable characteristic … is … to be assessed taking into consideration all of the circumstances of the case and bearing in mind that the aim of the Convention is to guarantee not rights that are theoretical or illusory but rights that are practical and effective …" (emphasis supplied).
It is clear that, if the alleged discrimination falls within the scope of a Convention right, the ECtHR is reluctant to conclude that nevertheless the applicant has no relevant status, with the result that the inquiry into discrimination cannot proceed.
"All that is necessary is that it should reflect a difference between the substantial majority of the people on either side of the line."
"All in-patients' disability-related needs are met by the national health service. That is where the rule against overlapping provision comes in, and that is why DLA [is] withdrawn after a shorter period - namely, once an adult has been in hospital for 28 days. For children under 16, the rule is 84 days.
Those arrangements are based on the principle that double provision – in this case, NHS in-patient care and payment of DLA – for the same need should not be made from public funds. The difference between the arrangements for adults and for children is recognition of the therapeutic value of visits and treats for a disabled child who is adjusting to life in hospital."
"The law as it stands suggests that families are getting some form of respite when their child is in a hospital or other medical setting. It suggests that a parent's responsibilities and costs are reduced. This could not be further from the truth."
It alleged that the level of care provided by parents either remained the same or increased when their children were in hospital. It asserted:
"Research shows that there are extra costs for a family when their child is in hospital or another medical setting:
• loss of earnings
• travel for family members
• parking costs
• meals at hospital
• childcare for siblings."
"( Almost all carers (99%) provide more (68%) or the same (31%) level of care when their child is in hospital compared to when their child is at home.
- 93% have increased costs relating to their child's disability when they are staying in hospital."
The survey confirmed that the families faced the types of increased costs identified in the first report, together with other costs relating to telephones, internet access and toys intended to keep the child occupied.
"It can be devastating for families when payments of Disability Living Allowance stop. The caring responsibilities of parents of child in-patients are enormous. It is often not realised that parents are required to attend hospital when their children are in-patients and to take an active part in their medical management. If they fail to attend, the hospital's social workers are informed. Many carers live either in make-shift beds on the wards or in nearby hospital-provided accommodation."
The CAB added that the caring responsibilities of parents may increase once their child becomes an in-patient; that they need to be trained to administer treatments, such as feeding through a gastrostomy; that the hospital relies on them to communicate with it on behalf of a non-verbal child; that their increased costs include costs of travel, of meals at the hospital and of childcare for siblings; and that their financial difficulties can be compounded by loss of earnings. The CAB concluded:
"Our view is that the 84-day rule unfairly and unjustifiably restricts benefit entitlement. When the 84-day rule was introduced, it may have been the case that families were discouraged or not permitted to stay with their children in hospital. However, it ignores the modern reality of paediatric in-patient healthcare and it removes necessary support from under the feet of the country's most vulnerable people."
In that the person centrally affected by the suspension will be (a) a child under 16, (b) who is severely disabled and (c) whose medical problems are so profound as to necessitate his remaining in hospital for more than 84 days, it is hard to disagree with the CAB's reference to "the country's most vulnerable people". The Secretary of State's policy officer responds that by 1991 parental presence in hospital was no longer discouraged; but she does not adequately grapple with its evidence about an increase in family expenditure.
(a) that the case of Mr and Mrs Mathieson is not a hard case, unreflective of the position of most parents in their situation;
(b) that the personal and financial demands made on the substantial majority of parents who help to care for their disabled children in hospital are, to put it at its lowest, no less than when they care for them at home.
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
The UN Committee on the Rights of the Child, in its General Comment No 14 (2013) on article 3.1, analysed a child's "best interests" in terms of a three-fold concept. In R (SG) v Secretary of State for Work and Pensions  UKSC 16,  1 WLR 1449, at paras 105-106, Lord Carnwath described the committee's analysis as authoritative guidance. The first aspect of the concept is the child's substantive right to have his best interests assessed as a primary consideration whenever a decision is made concerning him. The second is an interpretative principle that, where a legal provision is open to more than one interpretation, that which more effectively serves his best interests should be adopted. The third is a "rule of procedure", described as follows:
"Whenever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision-making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned … Furthermore, the justification of a decision must show that the right has been explicitly taken into account …"
"In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration."
It is impossible to conceive that the UN Committee's analysis of a child's "best interests" for the purposes of article 3.1 of the Convention on the Rights of the Child does not equally apply to the "best interests" of a disabled child for the purposes of article 7.2 of the Convention on the Rights of Persons with Disabilities.
"… even if there are a small number of children … at the extreme end of the spectrum whose needs for attention in connection with their bodily functions cannot fully be met by the NHS and whose families may, as here, incur additional costs as a result, that is merely one facet of how adopting a bright line rule operates in practice. Even if the number of such children has increased since the early 1990s, there is no suggestion that the number represents more than a small minority even now."
With respect to the tribunal, and putting to one side its continued focus upon bodily functions, there was a suggestion in the charities' first report that the number of families which incurred additional costs as a result of their child's admission to hospital was more than a small minority. But that it is indeed far from being a small minority has now been amply established in their second report, which was not before the tribunal.
(a) by his decision dated 3 November 2010 to suspend payment of DLA to Cameron, the Secretary of State violated his human rights under article 14 of the Convention when taken with A1P1;
(b) there is therefore no need to consider whether he also violated Cameron's human rights under article 14 when taken with article 8;
(c) in that the Secretary of State was not obliged by any provision of primary legislation to suspend the payment, he acted unlawfully in making the decision dated 3 November 2010: section 6(1) and (2) of the Human Rights Act 1998 ("the 1998 Act");
(d) accordingly the First-tier Tribunal should have allowed Cameron's appeal against that decision; should have set it aside; and, if only for the sake of clarity, should have substituted a decision that Cameron was entitled to continued payment of DLA with effect from 6 October 2010 to the date from which payment of it was reinstated; and
(e) this court should allow Cameron's appeal and make the orders at (d) which the First-tier Tribunal should have made.
LORD MANCE: (with whom Lord Clarke and Lord Reed agree)
"Thirdly, legislation cannot be framed so as to address particular cases. It must lay down general rules: James v United Kingdom (1986) 8 EHRR 123, para 68; Mellacher v Austria (1989) 12 EHRR 391, paras 52-53; R (Pretty) v Director of Public Prosecutions (Secretary of State for the Home Department intervening),  1 AC 800, para 29; Wilson v First County Trust Ltd (No 2)  1 AC 816, paras 72-74; R (Carson) v Secretary of State for Work and Pensions  UKHL 37,  1 AC 173, paras 41, 91. A general rule means that a line must be drawn, and it is for Parliament to decide where. The drawing of a line inevitably means that hard cases will arise falling on the wrong side of it, but that should not be held to invalidate the rule if, judged in the round, it is beneficial."
"even if … there are a small number of children whose needs are at the extreme end of the spectrum whose needs for attention in connection with their bodily functions cannot fully be met by the NHS and whose families may, as here, incur additional costs as a result, that is merely one facet of how adopting a bright line rule operates in practice. Even if the number of such children has increased since the early 1990s, there is no suggestion that the number represents more than a small minority even now."