IN THE UPPER TRIBUNAL Case No.  CDLA/937/2012

ADMINISTRATIVE APPEALS CHAMBER

 

Before UPPER TRIBUNAL JUDGE WARD

 

Attendances

 

For the Appellant: Mr Stephen Broach, instructed by Scott-Moncrieff  & Associates (each acting pro bono)

 

For the Respondent: Mr Tim Buley, instructed by DWP Legal Services

 

Decision: The appeal to the Upper Tribunal fails in the result.  Although the decision of the First-tier Tribunal dated 9 January 2012 under reference SC078/11/00381 did involve the making of an error of law and is set aside, I remake it in identical terms.

 

REASONS FOR DECISION

 

Introduction

 

1. This appeal is a challenge solely on human rights grounds.  The appeal was brought by C, a boy aged three at the time of the DWP’s decision, acting by his father.  Sadly, on 12 October 2012, C died.  His father is concerned to continue to pursue the appeal before the Upper Tribunal, as much as anything with a view to securing an improvement in the position of other families in a similar position in benefit terms. The respondent has now appointed him under regulation 30 of the Social Security (Decisions and Appeals) Regulations 1991, which entitles him to do so.

 

2. C was entitled to disability living allowance (“DLA”) at the higher rate of the mobility component and the highest rate of the care component.  However he unfortunately had to go into hospital for a prolonged period on 4 July 2010 and, once he had been there for 84 days, DLA ceased to be payable in accordance with regulations 8, 10, 12A and 12B of the Social Security (Disability Living Allowance) Regulations 1991 SI 1991/2890 (“the 1991 Regulations”).  That situation remained until C was discharged from hospital at the beginning of August 2011.  It is common ground that under domestic social security legislation the decision (which was taken on 3 November 2010) to cease payment was correct.  What is left is, therefore, the human rights argument.

 

The facts (based on the evidence before the First-tier Tribunal)

 

3. Prior to his admission to hospital, C lived, as he did following his discharge from hospital, with his father and mother and three older siblings.  He was described by the First-tier Tribunal as “a child with the most severe health problems … who is blessed with loving and caring parents who are utterly devoted to his care”.  C had both cystic fibrosis and Duchenne’s muscular dystrophy:  he was one of only two children in the United Kingdom to have both conditions.  He had a short gut and two stomas, which raised issues for his diet and his care needs.  There were other conditions too, but further medical detail is unnecessary.

 

4. More does however need to be said about the care he received.  His admission on 4 July 2010 was to a specialist unit at a major regional NHS hospital, because of a bowel obstruction.  The tribunal accepted the evidence from C’s parents and hospital staff that C thereafter remained in hospital because his complex needs required treatment which could not yet be delivered at home but that his parents remained his primary care givers and one of them was resident at all times.  Evidence from the hospital indicated that it relied heavily on C’s parents to undertake his daily care whilst he was in hospital, as his care needs were considered far to exceed those of any other child in the care of that clinic.

 

5. Initially, C’s siblings would come to visit him in hospital.  Later on, when C was well enough, he was able to leave the hospital for the day to attend nursery in his home town and this provided alternative opportunities to be with his siblings.

 

6. The hospital has the benefit of accommodation for parents, provided through a charitable initiative by a major business.  This also provided a place to take C during the day for a change of scene.  The typical pattern adopted by the family was that one of C’s parents was based at the hospital, staying overnight, while the other remained at home with the other children.  As the tribunal found:

 

“They had to cope with the burden and expense of travelling to and from their home… to  [the regional centre where the hospital was, a  distance of some 25 miles each way].  We found that it was entirely reasonable of [C’s parents] to go to such lengths to maintain C’s good relationship with his siblings and with his local area by his attendance at the local nursery.  In short, the time and expense of providing C with the care he needed from his family was increased due to him being an inpatient at [the regional hospital].

 

In addition to his physical problems, C has communication difficulties and developmental delay.  He communicates in part by the use of Makaton; [his father] would assist with communication between C and [hospital staff].

 

We found that C’s parents were reasonable in devoting the amount of time they did to C’s care whilst in…hospital.  Whilst [his father] conceded that C’s physical care would have been attended to by staff on the ward if he had been unwilling or unable to undertake this, this does not take account of C’s overall needs, in particular his emotional well being and need to maintain his relationships with his siblings and parents.

 

We found it would have been damaging  to C’s emotional well-being and development had his parents abdicated his care to the [hospital staff] and restricted themselves to conventional visiting times.”

 

The evidence indicated that while C was in hospital, his parents were, as a matter of routine, involved in undertaking chest physiotherapy, the administration of medicines and supplements, stoma care and much more besides.

 

7. The tribunal recorded a concession by C’s father that “if he chose not to provide this care, then the hospital would provide all necessary care for C.”  C’s father has subsequently suggested that this does not do full justice to what he said; however, based on the tribunal’s reasons as a whole and in particular the two paragraphs quoted immediately above, I think it is clear that his remarks were taken by the tribunal as he intended them, namely that C would get the medical (and, I infer, nursing) care he needed but not the social, emotional and developmental care necessary to ensure that he thrived, at any rate in the way in which parents could provide it.  (It is abundantly clear that C’s father is far from intending any criticism of the staff concerned.)

 

Further evidence before the Upper Tribunal

 

8. Those advising C’s father sought at the oral hearing before me to introduce further evidence given by way of witness statement with the stated purpose of expanding upon some of the key issues in this appeal and to update the Upper Tribunal on C’s then current situation.  As regards the purported “update”, the First-tier Tribunal had been required to apply section 12(8)(b) of the Social Security Act 1998 and so was restricted to the “circumstances obtaining” at the date of the decision under appeal.  That in any event had implications for what could be taken into account by the Upper Tribunal.  As regards the remainder of the witness statement, Mr Buley had no objection to it being considered.  Mr Broach also sought permission to adduce oral evidence from C’s father.  This Mr Buley did object to; but, having been informed of the intended limited scope of it, I agreed to hear it de bene esse (i.e. provisionally) and to rule on whether it should be admitted if in the event I concluded that it would make any difference to the outcome.

 

9. From the further evidence it is clear that C’s parents had to develop considerable understanding of C’s conditions and their treatments, both so that they could give informed consent on C’s behalf and so that they could administer medications at home and treatments such as physiotherapy and massage to supplement necessarily limited provision made by the hospital. It is testimony to the involvement of C’s parents in their son’s care that they were able to suggest a number of improvements and innovations in treatment, some of which have since been disseminated for use in the treatment of other children.  Communication has already been mentioned and C’s father trained in Makaton at his own expense, there being limitations on what the hospital’s speech and language therapy team could provide.  More generally, the evidence shows that there were only ever three nurses on a ward providing for 13 children in individual rooms, many of whom required “one to one care”.

 

10. Evidence was given as to the cost of meals in hospital for the carer, of car parking, petrol, donations to contribute towards the cost of accommodation provided, laundry tokens and the cost of drinks and snacks for C, selected to meet the particular requirements of his digestive system, and as to the books, DVDs and other items needed to occupy a three year old.  It is estimated by C’s father that the additional costs for the family were £8,000 over the course of C’s stay in hospital and the amount of DLA not paid because of the DWP’s decision a little over £7,000.  That is consistent with, though more detailed than, the tribunal’s finding quoted at [6] above.

 

11. C’s parents had previously run their own business.  This had enabled them to arrange their working pattern so that one of them could be at home at key moments in family life, such as when the children came home from school.  His parents had given up their work to become full time carers for C while, of course, also attending to the needs of their other children.  They did not initially claim benefits until they had used up their savings and disposed of assets.  At the time of the decision that DLA was not payable, they had no reserves.  They received income support, carer’s allowance – making no net difference but resulting in NI contributions being credited – child tax credit, child benefit, housing benefit, and  council tax benefit.  However, as a result of the increased costs they were experiencing coupled with the non-receipt of DLA, they experienced a shortfall, covered in part with the assistance of small charitable sums and by taking a loan of £4,000 from two friends.  Nonetheless, a  shortfall still resulted and, in particular, the frequency of trips backwards and forwards to the hospital was reduced significantly.  The effect was that the parents spent much time apart and there was less opportunity for C to be with his siblings.  Trips were reduced so that there was  one parent at the hospital  who would subsequently hand over to the other.  C’s parents had no time at all on their own for over 12 months and the family was only able to spend time together twice a week for a few hours.

 

12. Evidence was given as to the perceived implications of this for the other children. C’s father mentioned insecurity, social difficulties and an incident which might be perceived as evidence of a mental health problem or at very least as a cry for help.  C’s parents had to get used to operating on their own (and when C was discharged from hospital had to get used to operating together again). C’s father is receiving treatment for depression.

 

13. The witness statement exhibited a leaflet produced by two charities, the Children’s Trust Tadworth and Contact a Family, who are campaigning for the payability rule when a child is in hospital to be abolished, which amplified written evidence they had previously provided to the First-tier Tribunal.  The leaflet refers to the extra costs experienced by families when a child is in hospital and to the continuing need for care at the same or higher levels when a child is hospitalised.  The charities estimate that there are “up to 500” reported cases of children and their families “affected by” the rule each year.  The cost of abolishing the rule is said to be between £2.5 million and £3.1 million per year.  This evidence – so far as it goes - has not been challenged.

 

Disability Living Allowance

 

14. As is well known, DLA consists of two components. The mobility component may be paid at either of two rates.  The higher rate is most frequently paid on the grounds that a person is “virtually unable to walk” and this was the ground in C’s case, though there are other available grounds too, all of which reflect a difficulty in locomotion for one reason or another: see section 73 of the Social Security Contributions and Benefits Act 1992 and reg 12 of the 1991 Regulations for the detail.  The lower rate is paid to those who, disregarding their ability to use familiar routes, cannot take advantage of the faculty of walking out of doors without guidance or supervision from another person most of the time: 1992 Act, s73(1)(b).  The care component may be paid at one of three rates. The lowest rate is for present purposes somewhat anomalous, insofar as it can be paid (to adults, though not to children) when a person is considered unable to prepare a cooked meal for one: 1992 Act, s72(1)(a)(ii). In general, though, the various rates reflect varying levels of need to be supervised or, as in C’s case, for “attention in connection with his bodily functions”.

 

15. There is significant case law, not discussed in any detail at the oral hearing, concerning this “attention” criterion.  Suffice it to say that, as noted by the authors of Sweet and Maxwell’s Social Security Legislation 2012-2013, Vol 1 (at 1.233):

 

“It needs to be borne in mind that there is still a distinction between attention in the sense of any assistance that is given to a disabled person to enable them to lead a normal life and “attention in connection with a bodily function”.  It is only that help which has the sufficient degree of closeness and intimacy with the claimant’s person that will qualify.”

 

16. As any child, depending on his or her age, may need a degree of attention or supervision, section 72(1A) introduces for children a further test, in that none of the conditions of entitlement are to be taken to be satisfied by a claimant unless:

 

“(i) he has requirements of a description mentioned in the condition substantially in excess of the normal requirements of persons of his age, or

(ii) he has substantial requirements of such a description which younger persons in normal physical and mental health may also have but which persons of his age and in normal physical and mental health would not have.”

 

(A similar test applies to the degree of guidance and supervision required for the lower rate of the mobility component, but we are not concerned with that rate of that component here.)

 

17. It is important to note that even though DLA is paid in respect of such needs as mobility, supervision and attention in connection with a person’s bodily functions, there is no provision which requires the recipient to spend the money on alleviating the needs in respect of which the money is paid, either in any particular way, or at all.  This is equally true where the DLA is paid to a person on behalf of a child claimant.

 

18. The rules restricting payability of DLA are to be found in regulations 8 and 10 of the 1991 Regulations (regulation 9, which is referred to below, concerns care homes and is not relevant to the present case.)

 

“8.— Hospitalisation

 

(1) Subject to regulation 10, it shall be a condition for the receipt of a disability living allowance which is attributable to entitlement to the care component for any period in respect of any person that during that period he is not maintained free of charge while undergoing medical or other treatment as an in-patient-

(a) in a hospital or similar institution under the NHS Act of 1977, the NHS Act of 1978 or the NHS Act of 1990; or

(b) [not material].

 

[Para (2) deals with the phrase” not being maintained free of charge”, while para(2A) makes supplemental provision about calculating the period involved: neither need detain us.]

 

10.— Exemption from regulation 8 and 9

 

(1) Regulation 8, or as the case may be, regulation 9 , shall not, subject to the following provisions of this regulation, apply to a person for the first 28 days of any period throughout which he is someone to whom paragraph (4) applies.

 

(2) Regulation 8 shall not, subject to paragraph (3), apply to a person who has not attained the age of 16 for the first 84 days of any period throughout which he is someone to whom paragraph (4) refers.

…

(4) This paragraph refers to a person who–

(a) is undergoing medical or other treatment in a hospital or other institution in any of the circumstances mentioned in regulation 8; or

(b) [not material]”

 

Paragraph (3) has the effect that the 28/84 days exemption does not apply to a person who is already in hospital when s/he first qualifies for the care component.  Paragraph (5) makes provision for the linking of periods in hospital.  Paragraphs(6) and (7) make provision for people who are terminally ill and in a hospice. Paragraph (8) qualifies regulation 9 only, so need not concern us here.

 

19. Regulations 12A and 12B (dealing with the mobility component) are to substantially the same effect, though it is worth mentioning, though not relevant in this case at the time, the existence of special provisions to avoid jeopardising the vehicles of those who have agreements under the Motability scheme to provide an appropriate vehicle for them.

 

Hospitalisation and other social security benefits

 

20. DLA is not the only social security benefit in respect of which there is special provision when a person goes into hospital.  Following changes made by the Social Security (Hospital in-Patients) Regulations 2005 SI 2005/3360, the relevant provisions are to be found within the legislation concerning each particular benefit.  The detail is complex and does not need to be set out here, but is discussed in general terms at [41], [47] and [48] below.

 

Interaction between DLA and other benefits

 

21. As noted in R(Carson) v Secretary of State for Work and Pensions [2005] UKHL 37; [2006] 1 AC 173 at [20]:

 

“The situation of the beneficiaries of United Kingdom social security is…characterised by a corpus of rights and obligations of which it would be artificial to isolate one specific aspect.”

 

It is perhaps unsurprising that a person’s entitlement to (or to payment of) DLA may have implications elsewhere.  Thus, for instance, the payability of the care component of DLA at the middle rate or above to person is a condition of entitlement of that person’s carer to carer’s allowance: 1992 Act, s 70(2).  The implications of the loss of carer’s allowance may then vary further, depending on whether or not the carer is themselves in receipt of means tested benefit.  On the other hand, child tax credit, which is now the main route of support for families with children, is paid in higher amounts in respect of families who qualify for a “disabled child element” or a “severely disabled child element”.  For the former a child qualifies if DLA “is payable in respect of him, or has ceased to be so payable solely because he is a patient”: see regulation 8 of the Child Tax Credit Regulations 2002 SI 2002/2007.  For the latter, it is the highest rate of the care component of DLA which is relevant.  Both are still paid even if payment of DLA has stopped because the child is in hospital: The same was true of the predecessor payments under income support, which have continued for some cases under transitional arrangements: see the former paras 13A (enhanced disability premium) and 14 (disabled child premium) of schedule 2 of the Income Support (General) Regulations 1987 SI 1987/1967.  The same remains true also in respect of help with rent under the Housing Benefit Regulations 2006 SI 2006/213 and with council tax under the Council Tax Benefit Regulations 2006  SI 2006/215, where those premiums remain despite non-payment of DLA due to hospitalisation: see schedule 3 of the Housing Benefit Regulations, and sch 1 of the Council Tax Benefit Regulations, (in each case) paras 15 and 16. My understanding of the situation of C’s family is that though entitlement to carer’s allowance was lost, that  had no direct financial impact, in that any carer’s allowance they stood to receive would have been offset against the income support which they continued to receive.  But whether by way of child tax credit (as is likely) or income support, they would have continued to benefit from the higher amounts to which they were entitled as the result of C’s disability even though he was in hospital.  I accept that the matters to which I have referred in the housing benefit and council tax benefit regulations would not have affected C’s family as, being on income support, they were not dependent on the inclusion of the premiums in question to determine the amount of housing benefit they received, but those provisions might well be relevant to other families.

 

Health Service Law

 

22. I was not directed to any specific legal provision relating to the provision which C received while in hospital.  My impression, shared with counsel at the hearing, that any legal provision was likely to be couched in the most general terms is reinforced by subsequent research.  Section 3 of the National Health Service 2006 (which has been prospectively amended by the Health and Social Care Act 2012 but not in any manner relevant to present purposes) provided so far as relevant that:

 

“(1) The Secretary of State must provide throughout England, to such extent as he considers necessary to meet all reasonable requirements–

(a) hospital accommodation,

(b) other accommodation for the purpose of any service provided under this Act,

(c) medical and  nursing services,

(d) such other services or facilities for the care of … young children as he considers are appropriate as part of the health service,

(e) such other services or facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as he considers are appropriate as part of the health service,

(f) ……

 

23. Section 2, again leaving aside the impact of recent amendments under the 2012 Act which are not material, provides:

 

“(1) The Secretary of State may–

(a) provide such services as he considers appropriate for the purpose of discharging any duty imposed on him by this Act, and

(b) do anything else which is calculated to facilitate, or is conducive or incidental to, the discharge of such a duty.

(2) Subsection (1) does not affect–

(a) the Secretary of State's powers apart from this section,

(b) …

 

24. For present purposes, I merely note that once one gets beyond hospitals, medical and nursing services, the duty imposed by section 3 and a fortiori the power created by section 2 leave a significant degree of latitude to the Secretary of State so far as provision of services for young children is concerned, so that there do not appear to be any hard and fast boundaries about where the responsibility of parents ends and that of the National Health Service begins.  Indeed, given the variety of people’s health problems and family circumstances, it would be surprising if there was.  In respect  of what the Secretary of State considers necessary to meet all reasonable requirements he is, however, under a statutory duty to provide (inter alia) nursing services.

 

Human Rights Act

 

25. The main relevant provisions of the Human Rights Act 1998 (“HRA”) are as follows (references are to section numbers):

 

“3. – (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

…

 

6. – (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

 

6. – (2) Subsection (1) does not apply to an act of a public authority if –

(a)  as a result of one or more provisions of primary legislation the authority could not have acted differently; or

(b)  in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

 

6. – (3) In this section ‘public authority’ includes –

(a)  a court or tribunal

 

7. – (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may –

(a) …

(b)  rely on the Convention right or rights concerned in any legal proceedings, …”

 

The relevant Convention provisions

 

26. For the purposes of the present appeal, the main relevant provisions of the Convention are as follows.

 

“Article 8

 

(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.”

 

“Article 14:

 

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.”

 

“Article 1, Protocol 1 (“A1P1”):

 

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

 

The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

 

27. Reference should also be made to the UN Convention on the Rights of the Child. 

 

Article 3(1) provides:

 

“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.”

 

Article 4 provides that:

 

“States Parties shall undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention.  With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.”

 

(I was also referred to articles 5 and 9, but I conclude they have little bearing on the matters with which I am dealing and so do not set them out.)

 

28. I was also referred to the UN Convention on the Rights of Persons with Disabilities, in particular Article 5, which concerns discrimination on the basis of disability and Article 7(2), which provides that “in all actions concerning children with disabilities, the best interests of the child shall be a primary consideration.”

 

29. As to these Conventions, I am mindful of the observations in Neulinger v Switzerland (2010) 28 BHRC 706, para 131, cited with approval at [21] of Baroness Hale’s judgment in ZH  (Tanzania) v Home Secretary, that

 

“the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law.  Account should be taken… of “any relevant rules of international law applicable in the relations between the parties”, and in particular the rules concerning the international protection of human rights.”

 

 

The task of the UT in hearing an appeal on human rights grounds

 

30. I accept the argument that the task for the Upper Tribunal is to decide for itself whether the First-tier Tribunal went wrong in law by holding that there was no breach of Article 8 or Article 14 and that this means engaging with whether there was actually a breach, not with whether the First-tier Tribunal directed itself correctly.  This both follows from the terms of HRA s6 and is consistent with the approach adopted by the House of Lords in Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19 [2007] 1 WLR 1420. As Baroness Hale said at [31]:

 

“The first, and most straightforward, question is who decides whether or not a claimant's Convention rights have been infringed. The answer is that it is the court before which the issue is raised. The role of the court in human rights adjudication is quite different from the role of the court in an ordinary judicial review of administrative action. In human rights adjudication, the court is concerned with whether the human rights of the claimant have in fact been infringed, not with whether the administrative decision-maker properly took them into account.”

 

While I am concerned with a statutory appeal on a point of law rather than judicial review of an administrative decision, it does not appear to me (and has not been suggested) that this distinction is one of any substance as regards the approach I should take.

 

Within the ambit of A1P1

 

31. The Secretary of State accepts that, following R(RJM) v SSWP [2009] 1 AC 311, C’s entitlement to DLA comes within the ambit of A1P1.  Accordingly, C’s case crosses the first hurdle to an argument based on Article 14, in that the case concerns “the enjoyment of the rights and freedoms set forth in this Convention”.

 

Article 14: “status”

 

32. The question then arises whether there was a difference of treatment on grounds of ”status” within article 14.  The difference in treatment  caused by the hospitalisation rules is between a person under 16 who is disabled so as to be entitled to DLA and whose disability and/or illness results in the need for hospital treatment for more than 84 days and such a person where such a need for hospital treatment does not arise.  Is this a “status”?  In RJM, Lord Neuberger of Abbotsbury, with whom the remainder of their Lordships agreed, said:

 

“42 First, it seems clear that “a generous meaning should be given to the words ‘or other status’”, per my noble and learned friend, Lord Hope of Craighead, in Clift [2007] 1 AC 484 , para 48. To similar effect, at para 4.14.21 of Lester & Pannick, Human Rights Law and Practice , 2nd ed (2004), it is stated that the ECtHR applies “a liberal approach to the ‘grounds’ upon which discrimination is prohibited”. That appears to me to be entirely in accordance with the approach one would expect of any tribunal charged with enforcing anti-discrimination legislation in a democratic state in the late 20th, and early 21st, centuries.

 

43 The decisions of the ECtHR as to whether the “other status” requirement of article 14 is satisfied not only support such a wide reading, but they also indicate that “other status” should not be too closely limited by the grounds which are specifically prohibited in the article. Thus, military rank, as against civilian ( Engel v The Netherlands (No 1) (1976) 1 EHRR 647 ), residence or domicile ( Johnston v Ireland (1986) 9 EHRR 203 ), and previous employment with the KGB ( Sidabras v Lithuania (2004) 42 EHRR 104 ) have all been held to fall within “other status” in article 14 .

 

44 If persons living in a certain type of home (e g flats) were treated differently from those living in another type (e g houses), that would clearly, I think, potentially fall within article 14 (cf Chassagnou v France (1999) 29 EHRR 615 para 121. That would suggest that treating homeless people differently from those with homes should also potentially fall within article 14 . Mr Howell said that a case of discrimination between those who lived in flats and houses might be said to fall within article 14 on the basis that occupiers will almost always have some sort of interest in, or rights over, their homes, and hence the difference in treatment would fall within the express “property” status. He may very well be right, but it does not detract from the force of the point: if that is indeed the basis upon which article 14 would apply in such a case, then homelessness should be a status, as, unlike those with homes, the   homeless neither own nor enjoy rights over any residential property.

 

45 Further, while reformulations are dangerous, I consider that the concept of “ personal characteristic” (not surprisingly, like the concept of status) generally requires one to concentrate on what somebody is, rather than what he is doing or what is being done to him. Such a characterisation approach appears not only consistent with the natural meaning of the expression, but also with the approach of the ECtHR and of this House to the issue. Hence, in Gerger v Turkey (Application No 24919/94) (unreported) given 8 July 1999, the ECtHR held there could be no breach of article 14 where the law concerned provided that:

“people who commit terrorist offences … will be treated less favourably with regard to automatic parole than persons convicted under the ordinary law”, because “the distinction is made not between different groups of people, but between different types of offence”: para 69.

 

It appears to me that, on this approach, homelessness is an “other status”.

 

46 This is also consistent with what Lord Bingham of Cornhill said in Clift [2007] 1 AC 484 , para 28, namely that he did not consider that “a personal characteristic can be defined by the differential treatment of which a person complains”. I also note that, in the absence of decisions such as Gerger (unreported) given, 8 July 1999 , he would have been “inclined to regard a life sentence as an acquired personal characteristic and a lifer as having an ‘other status’”. On this basis, homelessness would appear to me to be a personal characteristic a fortiori, and there is no Strasbourg jurisprudence to justify a contrary conclusion.”

 

33. This is not a case where the claimant needs, in order to establish a “status”, to rely on the differential treatment of which he complains: the ground for asserting a “status” is not that of having had the payability of DLA withdrawn.

 

34. Nor do I consider that the principle in [43] of RJM leads to a  result adverse to C.  While what was “being done to him” was  the making available, in hospital, of medical and nursing care, that is merely a consequence of who C was, namely a very disabled child.  The context in which what is being done to a person is raised is illustrated by the example of the sentencing regime applied to convicted terrorists in Gerger v Turkey.  Further, I note that the House of Lords in RJM  did not treat this principle as precluding homelessness from being a “status”, even though many people who are homeless must be so because something (the eviction from or refusal of access to accommodation) being done to them.

 

35. The treatment of C was accordingly on the ground of “status”.  I have not overlooked the illuminating discussion by Lord Walker of Gestingthorpe of “personal characteristics” in the context of “status” which appears at [5] but, for the reasons below, I do not consider that it is necessary to pinpoint in which of the concentric circles of personal characteristics to which Lord Walker refers one should categorise the fact of C being disabled in respects, or to a degree, necessary to require hospital treatment for more than 84 days.  This is because of the correct approach to the question of justification, to which I now turn.

 

Article 14: justification

 

36. In Humphreys v Revenue and Customs Commissioners [2012] UKSC 18; [2012] 1 WLR 1545 Baroness Hale (with whom all the other members of the Court agreed)  referred to the decision of the Grand Chamber in Stec v United Kingdom (2006) 43 EHRR 1017 observing  at [16] ff:

 

16 The court repeated the well known general principle that

 

“A difference of treatment is, however, discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised” (para 51).

However, it explained the margin of appreciation enjoyed by the contracting states in this context, at para 52:

 

“The scope of this margin will vary according to the circumstances, the subject matter and the background. As a general rule, very weighty reasons would have to be put forward before the court could 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 choice unless it is ‘manifestly without reasonable foundation’.”

 

37. Baroness Hale proceeded to review relevant caselaw at [17] to [19], concluding that:

 

“It seems clear from Stec , however, that the normally strict test for justification of sex discrimination in the 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 widow's pensions to men in Runkee v United Kingdom [2007] 2 FCR 178 , para 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 para 50, apply a fortiori to the indirect sex discrimination with which we are concerned.”

 

38. The point was that certain categories of ground, sometimes referred to as “suspect”  might prior to Stec have affected the approach to be taken to justification, even in cases concerning state benefits, but this was no longer so.

 

39. It does appear that the contrary position was not argued in Humphreys (see [20] of that case).  Mr Broach however accepts that the Upper Tribunal is bound by Humphreys on this point, while reserving the right to argue that the point was wrongly decided should this case go further.

 

40. The material filed on behalf of the Secretary of State going to justification is limited to two extracts from Hansard.  The first, from House of Commons Hansard Debates for 4 Mar 1992, Column 399,  records a speech by Miss Ann Widdecombe, then the Under-Secretary of State for Social Security, when proposing amendments addressing technical defects in the 1991 Regulations.  She observed:

 

“We believe that it is sensible not to pay a DLA care component when the care needs are already being met from public funds. As hon. Members may recall, we have decided, from April, to allow children in hospital to continue getting the DLA care component for 12 rather than four weeks, which will be of substantial help to the parents of children who spend protracted periods in hospital.”

 

41. A rather fuller explanation is provided by the second extract, from House of Commons Hansard Debates for 25 March 2003, columns 26WH-28WH, where the then Parliamentary Under Secretary of State for Work and Pensions (Ms Maria Eagle) is answering questions from a Member about a different aspect of the hospitalisation rules in relation to DLA:

 

“The Government recognise that the need for financial security does not cease when people are in hospital and that they are likely to have ongoing domestic commitments. Many income maintenance benefits are downrated once the recipient has been a hospital in-patient for six weeks. When my right hon. Friend the Minister for Pensions took his post, he committed himself to changing the rules on hospital downrating of benefit, particularly as that relates to retirement pension, but also in respect of such benefits as income support, and incapacity and housing benefit. From October, such benefits will be downrated after 13 weeks, rather than six.

The average hospital stay lasts about six days, and the vast majority—more than 97 per cent.—last less than six weeks. Nevertheless, we estimate that the change made by my right hon. Friend the Minister for Pensions, which is to be introduced in October, will benefit a further 26,000 people at any one time. For some 18,000 of them, that change will be in respect of their retirement pension; for the rest, it will be in respect of other income maintenance benefits. Those who need longer hospital stays will have the extra seven weeks to plan their future financial arrangements.

I want to explain the rationale for hospital downrating, because when one discusses the subject with people, they do not necessarily immediately understand it. However, I do not say that that is right or wrong. The rationale basically comes down to the rule against overlapping provision, which is a founding principle of the welfare state and has been with us as long as the welfare state itself. That principle pops up in all sorts of places in the benefit system, and it basically means that the state will not pay two benefits for the same contingency. It will not pay benefit or income maintenance—such as income support, incapacity benefit or housing benefit—when the needs for which they are paid, namely maintenance, are met free of charge by the national health service for a hospital in-patient. That is why the issue arises, and why benefits are downrated at all after a period of hospital admission. That is the basic rule.

I come to disability living allowance and attendance allowance. As my hon. Friend said, since the changes to hospital downrating were announced, it has been asked why such changes have not been extended to DLA and AA. Those allowances involve different considerations. They are not paid for normal day-to-day living and they are not for income maintenance, although my hon. Friend said that that is what his constituent is using them for. They are paid as a contribution towards the extra costs faced by severely disabled people who need help with care or have walking difficulties. The rationale behind those "extra cost" benefits is different from that behind benefits such as retirement pension or income support. Of course, the state will still pay out money to people who receive such benefits, once they have been assessed.

The reason for paying a benefit is not necessarily apparent to those receiving it. There is no question of there being any restriction on what the benefits should be spent on. There is no requirement for someone receiving DLA care component to spend it on care, nor is there a requirement for someone receiving the lower-rate mobility component of DLA to spend it on their mobility needs, although they may choose to do so.

…

DLA comprises three care and two mobility components, whereas attendance allowance has two care components only. 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 and AA are 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.

Different arrangements also apply for people who are using their higher-rate DLA mobility component to secure a lease or hire-purchase agreement for a Motability vehicle. My hon. Friend referred to that. In such a case, the higher- rate mobility component is still paid, so that the Motability vehicle can be available when a severely disabled person is discharged from hospital. I hope that it is obvious why an exception is made in that special case. If it were not, a person would lose a car that should have been available to them for three years. The implication of the downrating in that instance would last long after the discharge from hospital and the restoration of benefit.“

42. In considering whether the restriction on payability was pursuing a legitimate aim, Mr Broach was prepared to concede, in the context of the interference with rights under article 8 which he asserted, that the aim was one of securing economic well-being.  I consider that that concession was rightly made in the light of the evidence above and that that evidence likewise establishes that a legitimate aim was being pursued for the purposes of justification under article 14.

 

43. As to proportionality, a number of points may be made.  First, it does not matter if the policy in 1991 was not formulated with an awareness of the extent to which some 20 years later parents of severely disabled children might find themselves involved as partners in care of the child.  What matters is whether the position can be justified now: Wilson v First County Trust Ltd (No2) [2004] 1 AC 816, at [144] cited in RJM at [52].

44. Further, I accept that it is permissible in this context for the legislature to draw “bright lines”, so as to make distinctions between categories of persons on a relatively broad brush notwithstanding  that this might lead to hardship in particular cases. As Lord Hoffman observed in R(Carson and Reynolds) v Secretary of State for Work and Pensions [2005] UKHL 37; ]2006] 1 AC 173:

“45 Ms 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 ground of her age. There is no doubt that the relevant Regulations, endorsed by Parliament, deliberately gave less to those under 25. But this was not because the policymakers 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 of 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 Ms Reynolds complains easily withstands scrutiny and there is no unlawful discrimination in terms of article 14 .”

 

45. 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 dis-apply 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 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 Broach’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, though that in my view still leaves the question of why a bright line is set where it is. 

46. Integral to the rationale identified by the Minister, Ms Eagle of avoiding double counting is her expressed view that “All in-patients' disability-related needs are met by the national health service.”  (Mr Broach says that is wrong: but the stated example – C’s need for a particular fizzy drink to help with the management of his diet – is not something which would ever be covered, of itself, by DLA either.)  I am not persuaded that the evidence in this case suggests that, at the most basic level of the sort of attention in connection with bodily functions needed to establish a claim for the care component of DLA the situation was, in general, any different at the time we are considering from that stated by Ms Eagle.  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 and supplements or performing physiotherapy, as well as a whole host of activities directing 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.  But even if I am wrong in that and 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.  As long as the general position is that the NHS will meet all in-patients’ disability-related needs (in the sense of those that might otherwise found an entitlement to DLA), the position has a rational foundation.  Hospitalisation remains a proxy, albeit an inexact one, for the provision of care from an alternative source and for a consequential impact on costs. 

47. I also consider that it so relevant that some care has gone into determining the effects of hospitalisation on particular benefits, depending on the need which that benefit serves.  Thus, as the Minister noted, different rules exist for income replacement benefits, where ongoing financial commitments may exist in respect of a person despite his or her admission to hospital.  It is relevant here to note also the provisions mentioned in [21] so that a family who is on income support, child tax credit or housing benefit (and there may be others) will retain the beneficial treatment that they receive in recognition of their child’s needs.  The need for extra help with housing costs, for instance, is not something which could be adjusted readily to reflect the fact that a child was in hospital rather than at home.  Though it is not the subject of the present case, the special provision to which the Minister referred for allowing Motability vehicle contracts to be maintained falls within a similar category.

48. The preservation of favourable treatment in income related benefits such as income support or child tax credit means that the family of a child whose food and basic care needs are being met by the NHS while he is in hospital will still be receiving the additional payment to which they were entitled as a consequence of the child’s disability which, as it would not be being used on supporting the child at home, would be available towards supporting a child in hospital through visits, treats and so on.

49. I note that “the therapeutic value of visits and treats for a disabled child who is adjusting to life in hospital” is also given by Ms Eagle as the rationale for the increase in the case of children from 28 to 84 days of the period before the payability restrictions apply.  This is on one level not consistent with the qualification conditions for DLA, but may be seen as an acknowledgment of the reality that a person’s DLA does not have to be spent on directly alleviating what it was that qualified a person for the benefit in the first place (as to which some children while in hospital may be better placed than a child not in hospital) and a policy choice made by Parliament, as the democratically elected body.

50. 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.

51. Mr Broach submits that the impact on public finances of disregarding the payability rule in cases of hardship would be relatively modest.  He argues, in relation to care component alone, that it would be either £650,000 annually, or £1 million, depending on the method of calculation adopted.  While this is in relative terms modest in the context of the overall social security budget, it is in absolute terms a substantial sum and the Upper Tribunal, like any court, is ill-equipped to assess the implications of spending it, when to do so would result either in a need for the State to increase its revenue or in unknown economies elsewhere. 

52. The State does have a considerable margin of appreciation in these cases and, even accepting the evidence at its highest as to the implications of ceasing payment of DLA for C and his family, I would still conclude that the steps adopted were far from being “manifestly without reasonable foundation".  As a result the respondent has justified the difference in treatment for the purposes of Article 14, read with A1P1.

Article 14: a failure to treat different situations differently?

53. Mr Broach also submits that the appellant was entitled to rely on Thlimmenos v Greece (2001) 31 EHRR 15, which established that:

“The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.”

54. The argument is that the needs of a three-year child, such as C was at the relevant time, for the continuation of the sort of support that would be facilitated by maintaining payability of DLA beyond the 84 day cut-off are different from that of many, though not all (say) 15 year olds, to whom the rule also applies.  In my view there legitimacy of a “bright line” rule provides the answer to this question also.  There is no evidence before me as to any alleged differing needs of children of different ages who have disabilities and who are in hospital.  While it is possible that how one might respond to a disabled child’s needs in hospital might differ, depending on whether the child is 3 or 15, it is also possible that a child’s disability may reduce the relevance of age-related development milestones to need in any event.  In the absence of any evidence I would conclude that the State is entitled to adopt the position that such a child of either age would be liable to require or to be in a position to benefit from additional payability of DLA in one way or another, on the basis that their situations are not significantly  different.  If I am wrong in that, then the need to deal with a spectrum of ages and disabilities in a reasonably efficient manner provides an objective and reasonable justification for imposing a uniform rule as to payability for children under the age of 16.

Article 8: applicability and interference?

55. In R(L) v Commissioner of Metropolitan Police [2009] UKSC 3, [2010] 1 AC 410, Lord Hope of Craighead observed:

“23 The word “engaged”, which Ms Barton used when she said that article 8 was not engaged in this case at all, requires to be examined with some care. It does not form part of the vocabulary of the European court and, as Laws LJ said in Sheffield City Council v Smart [2002] HLR 639 , para 22, its use is liable to be misleading and unhelpful. In Harrow London Borough Council v Qazi [2004] 1 AC 983 , para 47 I said that I would not for my part regard its use as objectionable, so long as there was no doubt what it means in this context. I drew attention to the words of Sir Gerald Fitzmaurice in his dissenting opinion in Marckx v Belgium (1979) 2 EHRR 330 , in which he said that the question was whether the provision was “applicable”—a concept which is juridically distinct from that of whether the provision has been breached. In other words, the question is whether the issue that has been raised is within the scope of the article. If it is not within its scope, the question of a possible breach of it does not arise at all. If it is, the question whether there is an interference with it which requires to be justified under article 8(2) is a separate question. The question whether something falls within the ambit of any of the rights or freedoms set forth in the Convention for the purpose of the prohibition of discrimination in article 14 reflects this approach.”

56. I derive assistance as to the scope of the article from the analysis in M v Secretary of State for Work and Pensions  [2006] UKHL 11; [2006] 2 AC 91.  That case was brought by a woman living with her same sex partner, who claimed that the child support regime treated her less favourably than it would have treated a woman living with a man.  In order to do this she needed to establish not that her rights under article 8 had been infringed, but that her situation fell “within the ambit or scope” of article 8 and/or A1P1, so as to open the door to a potential claim based on article 14.  Lord Bingham of Cornhill observed at [5]:

“…I do not think the enhanced contribution required of Ms M impairs in any material way her family life with her children and former husband, or her family life with her children and her current partner, or her private life. No doubt Ms M has less money to spend than if she were required to contribute less …  . But this does not impair the love, trust, confidence, mutual dependence and unconstrained social intercourse which are the essence of family life, nor does it invade the sphere of personal and sexual autonomy which are the essence of private life.”

57. If one looks at the sort of factors to which Lord Bingham referred in M, one can see in the circumstances of this case how very strongly love, trust, confidence and mutual dependence were being brought to bear in the care provided by C’s parents to C and by the consequences borne by all the family. “Unconstrained social intercourse” from Lord Bingham’s list however merits further examination, as clearly the effect of one of C’s parents being at the hospital was that the parents and children were all able to enjoy one another’s company to a lesser degree than might otherwise have been the case and (let us assume) this effect was exacerbated by the non-payability of DLA after 84 days.  I note that there are many, who, as a result of choices lovingly and conscientiously undertaken, are unable to spend as much time with other members of their family as they might wish, including those who have to work away from home and those who care for sick or infirm relatives  in other contexts and that one or other of C’s parents, taking turns, was able to spend valuable (and , it appears, more or less unlimited) time supporting and caring for their son in hospital, itself surely a manifestation of family life.  It may be that the degree of impact which there was on the family’s ability to be together was sufficient to differentiate the situation from that in M and to bring it within the scope of article 8, but ultimately that is not a question which I need to decide.  So far as article 8 goes, the key question is, rather, whether there was an interference with article 8 rights (to which whether a situation falls within the scope is merely a necessary precondition); so far as article 14 goes, the applicability of A1P1 in any event means that it is not necessary to rely on the matter falling within the scope of article 8.

58. So family life did continue to be exercised, albeit with additional difficulties.  (The situation can in my view be distinguished from that in Anufrijeva v Southwark LBC [2003] EWCA Civ 1406 and so the dicta at [43] of that case do not assist Mr Broach.)  Article 8 confers a qualified right to respect for family life.  It does not guarantee family life, much less any particular model of it, or that family life will run as smoothly as could be devised in the circumstances or be as it might be if the circumstances were different.  Can it be said that the State, by failing to continue payment of DLA beyond 84 days, was failing to exhibit respect for that family life?  In my view it cannot.  The State was, through the National Health Service, providing treatment, hospital accommodation and (in partnership with C’s parents) care.  C’s family were continuing to receive other benefits at a level unaffected by C’s hospitalisation.  As regards the DLA payable in respect of children who, like C, found themselves in hospital for a prolonged period, the State could have taken the view that the provision of care in an NHS setting justified the withdrawal of payment after 28 days, on the basis that those under and over the age of 16 who were in hospital were in the same situation in this regard, but it has not, instead extending the period for those under 16 to triple the length applicable to those over 16, an extension from which C’s family had benefited.  As DLA in respect of children will be paid to an appointee who is likely to be a parent and involved in visiting the child in hospital, the provision, through the additional period in which payability of DLA is maintained, of additional spending power to that person for the child’s benefit appears to me to be promoting family life rather than showing a lack of respect to it.  Of course, if money were no object, it would always be possible to go further, but I find it impossible to accept that, when money is not limitless, the State has failed to show respect for family life by not making additional provision to the provision, material in amount and targeted towards the families of children in hospital, which it has already made.  Consequently there has been no infringement of article 8.

59. Nor do I think it makes any difference that C was first awarded DLA and then it was effectively removed by the payability rule.  Both are two sides of the same coin, namely the statutory conditions for receiving DLA. The crucial question remains whether there was an interference with article 8 rights, which I have concluded there was not.

Article 8: justification (if relevant)

60. If, however, I were to be wrong in the foregoing conclusion, I would in any event conclude that any interference there might be thought to be in the present case with article 8 rights could be justified.  Mr Broach accepts, rightly, that any such interference would fall within the “economic well-being” aim in article 8(2).  There is then a difference between counsel as to whether the approach in Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167 is applicable outside its immigration context.  I do not need to resolve that, as even applying Huang, I would conclude that the extent of any interference there might be thought to be with rights protected by article 8 was no more than necessary to achieve the above legitimate aim and that the measure struck a fair balance between the rights of the individual and the public interest.

61. My reasons, like the parties’ arguments, are largely those applicable to justification under article 14. However, in acknowledgment of an argument raised by Mr Broach, I would add that I consider that article 3 of the UN Convention on the Rights of the Child (itself qualified by article 4 where economic, cultural or social rights are involved) does not materially assist his argument.  ZH (Tanzania) [2011] UKSC4, on which he relies, concerned a decision taken regarding the welfare of an individual child and is thus distinguishable.  Though I do not dispute the relevance of the Convention in interpreting the European Convention on Human Rights, I doubt that article 3 of it has any significant relevance to the present context, where a cost-neutral implementation of what is sought might result in damage to the interests of other children, not before the Upper Tribunal.

Evidence

 

62. It follows from the conclusions I have reached that the admissibility or otherwise of the additional evidence from C’s father does not hold the key to the outcome of this case and so I say no more about it.

 

Error of law

 

63. The First-tier Tribunal did not have the assistance that was available to me (for which I am grateful to both counsel).  Very regrettably, although the Secretary of State had been directed by a First-tier Tribunal judge to make a submission addressing the human rights issues, he failed to do so, a failure which has not been adequately explained.  The tribunal expressed its reasons on the human rights points briefly, saying (I summarise):

 

a. Article 8 is not engaged;

b. If the provision of DLA is not needed to satisfy the UK government's obligations under art 8, its suspension in circumstances provided by regulation 8(1) cannot be a breach of those rights;

c. in the alternative, the suspension of DLA is a discretionary area of judgement for the executive and the courts should not interfere, whether the case is considered under article 8 or article 14.

 

64. Of these paragraphs:

 

a. may have been wrong for the reasons given above but the materiality of the point is subsumed into whether there was an interference with rights protected by article 8

b. while I agree with the tribunal in the result, that there was no breach of article 8, I do so for different reasons

c. is an error of law, in that at any rate in relation to article 14, the question of whether there was an objective justification in the sense that it served a legitimate aim and bore a reasonable relationship of proportionality to that aim required to be examined by the tribunal.  However, having carried out the exercise referred to I have concluded that there was an objective justification. 

 

Disposal of the appeal

 

65. As the tribunal’s statement of reasons does appear erroneous on its face, I have concluded that it is better to set the decision aside and to remake it in identical terms. This, accordingly, means that for effective purposes, the appeal has failed.

 

Concluding remarks

 

66. I venture to extend my sincere respect to C’s parents for all that they were able to accomplish for C in his short life and my sympathy in their bereavement.  I am however unable to conclude that the challenged legislation infringed his human rights.

 

 

C.G.Ward

Judge of the Upper Tribunal

15 January 2013