Cameron Mathieson, a deceased child v Secretary of State for Work and Pensions

A social-security benefit falling within the ambit of a Convention right must be administered without discrimination under article 14, although the Convention creates no independent entitlement to the benefit. A severely disabled child requiring lengthy in-patient treatment may have an “other status” distinct from a disabled child treated at home.

Bright-line benefit rules receive substantial judicial respect, but remain subject to careful scrutiny. A rule lacks reasonable justification where its premise does not reflect the circumstances of the substantial majority affected. Suspending disability benefit was unlawful where the child’s disability-related needs continued, his parents remained primary carers and hospitalisation necessarily increased their expenditure. The remedy remained individual: the regulations could not be read as inapplicable to every hospitalised child.

Cameron Mathieson, a deceased child v Secretary of State for Work and Pensions concerned a severely disabled child who received the highest care component and higher mobility component of disability living allowance. Payment was suspended after he had spent more than 84 days as an NHS hospital in-patient. His parents remained his primary carers in hospital and incurred substantial additional expenditure.

The First-tier Tribunal dismissed the child’s appeal. The Upper Tribunal set that decision aside for error of law but itself dismissed the appeal. The Court of Appeal, in [2014] EWCA Civ 286, also dismissed the appeal.

The central issue before the Supreme Court was whether applying the 84-day suspension rule violated article 14 of the European Convention on Human Rights, read with article 1 of Protocol 1 or article 8.

1. Disposition. The Supreme Court unanimously allowed the appeal. Lord Wilson gave the leading judgment, with which Lady Hale, Lord Clarke and Lord Reed agreed. Lord Mance, with whom Lord Clarke and Lord Reed agreed, reached the same result while emphasising the latitude properly afforded to general social-benefit rules.

2. The provision of disability living allowance fell within the ambit of article 1 of Protocol 1. Article 14 therefore applied although suspension did not independently violate, or even interfere with, the right to peaceful enjoyment of possessions. A severely disabled child requiring lengthy in-patient hospital treatment had an “other status” for article 14 purposes. The proper comparison was with a severely disabled child who did not require such treatment.

3. The difference in treatment required objective and reasonable justification. Social-security policy choices and readily administered bright lines deserve substantial respect and will generally withstand challenge unless manifestly without reasonable foundation. They nevertheless require careful scrutiny. A hard case on the wrong side of an otherwise beneficial rule will not ordinarily invalidate it, but the line should reflect a real difference between the substantial majority on either side.

4. The 84-day rule was unjustified as applied to Cameron. The evidence showed that most parents provided at least as much care after hospitalisation and incurred increased costs. Cameron’s disability-related needs continued, his parents remained primary carers and the NHS’s ability to provide care if they withdrew was irrelevant. The Upper Tribunal erred by concentrating too narrowly on attention connected with bodily functions, relying on hypothetical replacement care by NHS staff and treating affected families as a small minority.

5. The failure to assess disabled children’s best interests breached the procedural and substantive requirements identified under the relevant UN conventions. Those conventions could inform article 14 analysis where the treatment directly affected children. The finding of unjustified treatment was, however, independently sustainable without relying on them.

6. The suspension violated article 14 read with article 1 of Protocol 1 and was unlawful under section 6 of the Human Rights Act 1998. There was no need to decide the article 8 issue. The suspension decision was set aside and a decision substituted that payment should continue for the relevant period. Section 3 could not be used to read the regulations as wholly inapplicable to children. The remedy was confined to Cameron’s circumstances, leaving the Secretary of State to devise lawful adjustments for other cases.

1. United Kingdom Supreme Court: In [2015] UKSC 47, unanimously allowed the appeal, set aside the suspension decision and substituted entitlement to continued disability living allowance for the relevant period.
2. Court of Appeal: Dismissed the appeal in [2014] EWCA Civ 286.
3. Upper Tribunal: Set aside the First-tier Tribunal’s decision for error of law but itself dismissed the appeal.
4. First-tier Tribunal: Dismissed the appeal against suspension of disability living allowance.