AM (By His Father CM) v The Secretary of State for Work And Pensions

The suspension of disability living allowance for a child after 84 days in hospital did not breach Article 8. Article 8 does not generally require the state to provide or continue social-security benefits, subject to exceptional circumstances such as destitution.

Social-security benefits fall within the scope of Article 1 of the First Protocol, so Article 14 may apply. In that context, differential treatment is lawful unless it is manifestly without reasonable foundation. The best interests of children remain a primary consideration but do not replace that test. A bright-line rule is permissible where it reflects a qualitative difference in the location and financing of care and has administrative benefits.

The child claimant was entitled to disability living allowance before admission to hospital. After 84 days as an inpatient, payment stopped under the Social Security Disability Living Allowance Regulations 1991. His parents continued to provide substantial care and incurred additional expenditure.

The First-tier Tribunal rejected the challenge. The Upper Tribunal set aside that determination but remade the decision in identical terms. The child died during the proceedings, which were continued by his father. The appeal concerned whether the 84-day rule violated Articles 8 and 14 of the European Convention on Human Rights, including whether the rule was justified and whether a bright-line approach was lawful.

The Court of Appeal dismissed the appeal. The cessation of disability living allowance after the relevant hospital period under the Social Security Disability Living Allowance Regulations 1991 was lawful.

1. Article 8 does not generally impose a positive obligation to provide state benefits. The limited possibility of such an obligation where necessary to avoid destitution was not engaged. Withdrawal of an existing benefit was not materially different from failure to grant one, and no direct violation of Article 8 was established.
2. Article 14 is not freestanding. Social-security payments fall within the scope of Article 1 of the First Protocol, so a discrimination complaint could be raised without establishing a breach of another substantive Convention right. The Court proceeded, without finally deciding the point, on the basis that the claimant’s circumstances constituted an Article 14 status.
3. The applicable justification test was whether the difference in treatment was manifestly without reasonable foundation. As explained in Humphreys [2012] volume 1 WLR 154 52, a wide margin generally applies to economic and social policy, although the justification remains subject to careful scrutiny. The best interests of children are a primary consideration, but do not replace the applicable Article 14 test. Zoumbas [2013] 1 WLR 3690 concerned Article 8 proportionality, while the formulation in JS v the Secretary of State for Work and Pensions [2013] EWHC Admin 3250 was consistent with the approach required here.
4. The rule-maker was entitled to adopt a bright-line rule. The qualitative difference between care provided in hospital and care provided in the community, including the location and financing of care and the purpose of disability living allowance under section 71(1) of the Social Security Contributions and Benefits Act 1992, supplied a reasonable foundation. Administrative efficiency was also relevant. The new survey evidence added little, and the proposed individualised exception was unnecessary. The regulations were therefore not manifestly without reasonable foundation.

1. Court of Appeal (Civil Division) — The appeal from the Upper Tribunal was dismissed: [2014] EWCA Civ 286.
2. Upper Tribunal (Administrative Appeals Chamber) — On 15 January 2013, the Upper Tribunal set aside the First-tier Tribunal’s determination but remade the decision in identical terms, rejecting the Convention challenge.
3. First-tier Tribunal — The earlier determination was set aside by the Upper Tribunal. Its date and citation were not stated in the judgment.