Cox's (Lorraine) Application

JurisdictionNorthern Ireland
JudgeMcAlinden J
Judgment Date07 July 2020
Neutral Citation[2020] NIQB 53
CourtQueen's Bench Division (Northern Ireland)
Date07 July 2020
Neutral Citation No: [2020] NIQB 53
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: McA11286
Delivered: 07/07/2020
and 22/10/2020
[1] The applicant, Ms Lorraine Cox, is challenging the requirement enshrined in
legislation that claimants who apply for Universal Credit (UC) and Personal
Independence Payment (PIP) on grounds of terminal illness must demonstrate that
death can reasonably be expected within six months. The hearing of the application
proceeded by way of a rolled-up hearing on 18 and 19 June 2020 with the legal
representatives present in Court. Ms Quinlivan QC led Mr Aidan Magowan for the
applicant, instructed by the Law Centre (Northern Ireland). Dr McGleenan QC led
Mr McAteer for the respondents, the Department for Communities and the Secretary
of State for Work and Pensions, instructed by the Departmental Solicitor’s Office and
the Crown Solicitors Office. I am indebted to counsel for the quality of their oral and
written submissions and I am indebted to the former Attorney General, Mr Larkin QC
for his written submissions on the Order 120 RCJ matters.
[2] This application concerns the provisions of Article 87(4) of the Welfare Reform
(Northern Ireland) Order 2015 (“the 2015 Order”) which is secondary Westminster
legislation made under the Northern Ireland (Welfare Reform) Act 2015 which made
provision for the implementation of, inter alia, the Universal Credit and Personal
Independence Payment benefits systems in Northern Ireland. The application also
concerns the provisions of Regulation 2 and Schedule 9, paragraph 1 of the Universal
Credit Regulations (Northern Ireland) 2016 (“the 2016 Regulations”). In these
proceedings, the applicant contends these provisions, insofar as they require
claimants who apply for Universal Credit (UC) and Personal Independence Payment
(PIP) on grounds of terminal illness to demonstrate that death can reasonably be
expected within six months, are incompatible with her rights under
European Convention for the Protection of Human Rights and Fundamental
Freedoms (“ECHR”), read with Article 8 ECHR and/or Article 1 of the First Protocol
to the Convention (“A1P1”).
The Facts
[3] The applicant, now aged 40 years, is a divorced woman with three children
now aged 7, 12 and 14 years. She previously worked as a self-employed beautician,
before taking up firstly full-time and then part-time employment in an administrative
capacity for a haulage company.
[4] In either August or September 2018, the applicant who had been under medical
investigation for some time, was given a definitive diagnosis of Motor Neurone
Disease (amyotrophic lateral sclerosis). It is hard to imagine a more devastating
diagnosis for a single mother of three young children. This illness is a progressive
neurological condition for which there is no effective treatment or cure. The
progression of the illness is unpredictable but it would seem that 50% of those
individuals diagnosed with the condition die within three years of diagnosis. In
relation to the applicant’s prognosis, it would seem that at the time of diagnosis, she
was given an estimated life expectancy of between two to five years and she was
advised that as her illness progressed, her loss of motor function would become more
severe and her concomitant care and mobility needs would increase.
[5] On 7 March 2018, when the applicant was under medical investigation in
respect of neurological symptomology, the applicant made an application for PIP, the
successor benefit to Disability Living Allowance (DLA). This benefit is a non-means
tested, non-contributory benefit which is intended to assist claimants meet some of
the extra costs arising from having a long-term health condition that is expected to last
for twelve months or longer. Just like the benefit it replaced, PIP has care and mobility
components. In order to claim the benefit, the applicant was required to complete a
detailed application form and this form invited the applicant to give details of her
medical condition, any ongoing treatment and medication and to provide detailed
information on how her medical condition affected how she was able to carry out day-
to-day activities.
[6] These day-to-day activities included food preparation, eating and drinking,
managing treatments, washing and bathing, toileting, dressing and undressing,
communicating, reading, mixing with other people, making decisions about money,
going out and moving around. Without going into her personal details, it is clear from
a perusal of the completed form in this case that the applicant was required to divulge
personal information about her functional abilities and the impairment of these
abilities, her level of dependence on others (including the need for help with personal
self-care), and the impact her illness was having on her and her family. In her initial
application, the applicant described her condition as “Motor Neurone Disease
ongoing investigations.”
[7] On 25 July 2018 the applicant was informed in writing that her application had
been assessed and it was adjudged t hat she was not entitled to PIP. On 9 August 2018,
the applicant applied for this decision to be reconsidered and on 16 November 2018
she was awarded the standard (as opposed to the enhanced) rate for help with daily
living from 7 March 2018 (the date of the initial application) up to 3 July 2021. It is
worthy of note that there is presently £29 per week of a difference between the
standard rate and the enhanced rate for help with daily living. The applicant lodged
an appeal with the Tribunal seeking to establish her entitlement to the enhanced rate
and this appeal was unsuccessful on 3 April 2019 with the Tribunal upholding the
applicant’s entitlement to the standard rate.
[8] The applicant then sought a supersession of her PIP claim and was required to
attend for a further assessment. On 9 April 2019, the applicant notified the
Department for Communities of a change in her condition and on 10 May 2019, she
stated that her condition was Motor Neurone Disease fully diagnosed. On
10 September 2019, it was determined that the applicant was entitled to the standard
rate for help with daily living component from 10 September 2019 up to 1 January
2022. On 5 November 2019, the Department was notified of a change in the applicant’s
condition and the applicant sought a mandatory reconsideration of her case on 12
November 2019. On 24 November 2019, the applicant was awarded the enhanced rate
of PIP for help with daily living and the standard rate for help with mobility from 9
April 2019 to 1 January 2022.
[9] On 19 February 2020 in response to the notification of a change in the
applicant’s condition which had been made on 5 November 2019, the applicant was
assessed as being entitled to the enhanced rate of PIP for help with daily living and
the enhanced rate of PIP for help with mobility. This is the maximum amount payable
under the PIP regime and this award was backdated to 5 November 2019.
[10] In summary, in respect of the application for PIP; following her initial
application on 7 March 2018 and as a result of availing of internal review and external
appeal procedures, the applicant has been paid the following rates of PIP:
(a) From 7 March 2018, the standard rate PIP for help with daily living up to
8 April 2019;
(b) From 9 April 2019, the enhanced rate of PIP for help with daily living and the
standard rate of PIP for mobility up to 4 November 2019; and
(c) From 5 November 2019, the enhanced rate of PIP for help with daily living and
the enhanced rate of PIP for help with mobility.
[11] The payment of PIP is ordinarily dependent upon an applicant being able to
establish functional impairment impacting upon the ability to perform activities of
daily living and the ability to mobilise. It is ordinarily necessary for an applicant to
demonstrate that such impairments and needs have been in existence for at least three

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