ML v Secretary of State for Work and Pensions (DLA)

For regulation 9 of the Social Security (Disability Living Allowance) Regulations 1991, a care home is an establishment providing accommodation with personal or nursing care. The inquiry concerns the establishment’s character, rather than the quality or quantity of care provided to an individual resident. Public funding of any qualifying service is sufficient; all qualifying services need not be publicly funded.

The suspension of the care component of DLA for residents in publicly funded care homes pursues the legitimate aim of preventing double public provision. It is justified as a bright-line rule where care needs are met in the substantial majority of cases. Isolated failures in care provision do not establish unlawful discrimination under article 14.

ML, an adult with autism and learning difficulties, received the highest-rate care component and the mobility component of DLA. Following a period of detention under the Mental Health Act 1983, he lived in a residential home between September 2011 and September 2013. His placement was partly NHS-funded under section 117.

The Secretary of State superseded the earlier award and suspended the care component under regulation 9 of the Social Security (Disability Living Allowance) Regulations 1991. The First-tier Tribunal dismissed ML’s appeal, notwithstanding accepted deficiencies in the care provided. With permission, ML appealed to the Upper Tribunal. He contended that the home did not provide personal care and that the suspension was discriminatory contrary to article 14 of the Convention.

1. Appeal dismissed. The First-tier Tribunal made no error of law in holding that regulation 9 applied. The home provided accommodation and was an establishment providing personal care. The statutory definition in section 72(9) of the Social Security Contributions and Benefits Act 1992 concerns the nature and function of the establishment, not the quality of care actually delivered to a particular resident.

2. Section 72(8) requires public funding of the costs of any qualifying service. It does not require that accommodation, board and personal care are all provided or funded. The family’s evidence of serious deficiencies did not establish that ML received no personal care. The CQC reports also made it impossible to conclude that the care was so deficient as to take the home outside regulation 9.

3. The statutory CQC registration and inspection regime reinforces that construction. It is not for the DWP or a tribunal to conduct a separate assessment of the quality of care, save perhaps where an inspection process has gone seriously wrong. The adequacy of residential care is secured through that specialist regulatory regime.

4. Assuming that residence in a care home could amount to a protected status under article 14, the difference in treatment was objectively justified. Avoiding double public provision for the same care needs is a legitimate aim. Unlike Mathieson v SSWP [2015] UKSC 47, there was no evidence of a structural mismatch between the DLA rule and the position of the substantial majority of care-home residents. In the great majority of cases their care needs are met through the publicly funded placement.

5. Regulation 9 is therefore compatible with article 14. Any cases in which care is inadequately delivered are hard cases falling on the wrong side of a justified bright-line rule; deficiencies should be addressed through the CQC regime rather than by continuing DLA care payments.

• Upper Tribunal (Administrative Appeals Chamber): dismissed ML’s appeal and upheld the First-tier Tribunal’s conclusion that regulation 9 of the Social Security (Disability Living Allowance) Regulations 1991 suspended the care component during residence in the publicly funded home.
• First-tier Tribunal: dismissed the appeal against the Secretary of State’s superseding decision that the care component was not payable during the residential placement.
• Secretary of State: superseded the earlier DLA award on 25 June 2013. After the Upper Tribunal hearing, the mobility component was revised to the higher rate by agreement.