AM (by His Father CM) v The Secretary of State for Work and Pensions

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Laws,Lord Justice Underhill,Lord Justice Ryder
Judgment Date05 February 2014
Neutral Citation[2014] EWCA Civ 286
Date05 February 2014
Docket NumberCase No: C5/2013/1597 & A

[2014] EWCA Civ 286





Royal Courts of Justice


London, WC2A 2LL


Lord Justice Laws

Lord Justice Ryder

Lord Justice Underhill

Case No: C5/2013/1597 & A

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

Mr I Wise QC & Mr J Bunting (instructed by Scott-moncrieff & Associates) appeared on behalf of the Applicant

Mr T Burley (Instructed by Treasury Solicitors) appeared on behalf of the Respondent

Lord Justice Laws

This is an appeal with permission granted by Sir Stanley Burnton against the determination of the Administrative Appeals Chamber of the Upper Tribunal (Upper Tribunal Judge Ward, of 15 January 2013. The Upper Tribunal set aside the earlier determination of the First Tier Tribunal ("the FTT") but remade the decision in the case in identical terms. The Upper Tribunal rejected the appellant's contention that the rights under Articles 8 and 14 of the European Convention on Human Rights enjoyed by his son, CM, who was born on 19 June 2007 but died on 12 October 2012, had been violated by Conventions 8 and 10 of the Social Security Disability Living Allowance Regulations 1991. The relevant effect of those provisions is to suspend payment of disability living allowance ("DLA") to a child who has been in hospital for more than 84 days. This court is asked to say that this rule is repugnant to Article 8 and Article 14 of the European Convention.


The appellant in the case was originally CM himself but since his untimely death the proceedings have been continued by his father, a course approved in this court by Sir Stanley Burnton granting permission to appeal.


The facts of the case are described in the Upper Tribunal's judgment and in the witness statement of the appellant, as I may now refer to the father. The following account is adapted from the helpful summary given in paragraphs 12 to 16 of the appellant's skeleton argument prepared by Mr Wise QC and his junior.


In early infancy CM was diagnosed with a number of severe medical conditions. They included cystic fibrosis, Duchenne's muscular dystrophy, clotting disorder, deep vein thrombosis in the right leg and developmental delay. There were also after effects of bowel surgery. He was one of only two children in the United Kingdom with the combination of cystic fibrosis and Duchenne's muscular dystrophy.


CM required a complex daily regimen of daily therapies, including chest percussion and postural drainage when he was well, and the provision of nebulised antibiotics through specially provided equipment when he had respiratory pathogens. He also needed vitamin supplements, antibiotics and sodium and pancreatic supplements each day.


Before his admission to hospital he lived with his father, mother and three older siblings. In order to administer medicines, communicate with their son and provide treatment his parents developed a considerable understanding of his conditions and the treatments which he required. His father, for example, trained in what is known as makaton at his own expense so as to facilitate communication with his son.


Before CM was admitted to hospital he was entitled to DLA at the higher rate of what is called the mobility component and the highest rate of the care component. It was on 4 July 2010, when he was only three, that he entered the Alder Hay Children's Hospital and remained there for a prolonged period. After 84 days the respondent Secretary of State ceased to pay the DLA. That remained the position until CM was at length discharged from hospital at the end of August 2011.


In the hospital there is no doubt at all but that CM's parents continued to provide with him with care. Miss Eleanor Burrows, who is an advanced nurse specialist in cystic fibrosis at Alder Hay, confirmed in a letter of 28 October 2010 that:

"CM's care needs far exceed those of any other child in our clinic and we rely heavily on his parents to undertake his daily care whilst he is in hospital. They have an essential role to play in CM's daily care and are independent with a wide range of activities to ensure that he is being cared for at all times by them within the hospital setting. We rely on them to monitor his condition daily and report any deterioration in his condition. They are involved in the daily ward round discussions and all decisions regarding CM's care and on several occasions have recognised deteriorations in CM before anyone else."


It is right that we should acknowledge the recognition at paragraph 2 of the FTT determination that these were loving and caring parents who were utterly devoted to the care of their son.


There is also evidence from the father as to the extent to which he and his wife participated in their son's care and in addition the financial burden of doing so. They bought meals at the hospital. There were transport costs and other matters. The father estimates that he incurred total additional expenditure of some £8,000 while CM was in hospital. The loss that was occasioned by the suspension of DLA amounted to a little over £7,000.


In due course the Upper Tribunal was to conclude at paragraph 50 of its determination that follows:

"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."


Mr Wise seeks leave to adduce new evidence in the shape of a report, "Stop the DLA take away Survey Report", produced by Contact the Family and the Children's Trust in March 2013. The report sets out the results of an online survey of 104 families having children who have spent long periods in hospital. The document is before us. It shows, putting it very broadly, that in a very substantial majority of the cases surveyed, parents provided high levels of care for their child while he or she was in hospital and incurred substantial expenditure in doing so. We have read and considered this evidence on a provisional basis.


We turn briefly to the Regulations. It is not necessary to set out the legislation at any length. The general rule is that:

"DLA is not payable while the person in question is maintained free of charge while under going medical or other treatment as an inpatient (a) in a hospital or similar institution under the National Health Service act. See regulation 8.1."

But exceptions provide:

"Notwithstanding regulation 8.1 DLA remains payable for the first 28 days of the person's stay in hospital (see regulation 10.1) or if the person is a child under 16 years, 84 days (regulation 10.2)."


Without condescending to the detail it is important, as Mr Buley for the Secretary of State pointed out this morning, that DLA under the regulations is provided (primarily certainly) in connection with bodily functions; see section 71(1) of the Social Security Contributions and Benefits Act 1992.


The policy of the general rule as to the withdrawal of DLA while the subject is in hospital was described by the Minister in Parliament on 25 March 2003, House of Commons Debate 26 WH to 28 WH, as based on "the rule against overlapping provisions": that is "that the state will not pay two benefits for the same contingency." The Minister stated that "all in patients' disability related needs are met by the NHS." She added, and this is of obvious significance in the present case:

"The difference between the arrangements for adults and for children is a recognition of the therapeutic value of visits and treats for a disabled child who is adjusting to life in hospital."


We have the whole passage from Hansard before us, and have of course considered it. It is substantially referred to in Mr Buley's skeleton argument for the respondent.


As is well known, Article 8 of the European Convention on Human Rights provides:

"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 provides:

"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."


As is apparent from that text, Article 14 is not freestanding. It requires the other substantive Convention rights to be secured without discrimination. It does not require a breach of any of those rights to be proved; rather it sets a standard for the distribution of the Convention rights by the Member States of the Council of Europe.


It is well established by authority that not every difference in treatment on the stated grounds in the context of any of the Convention rights...

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