Cameron Mathieson, a deceased child (by his father Craig Mathieson) v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Lord Wilson,Lady Hale,Lord Clarke,Lord Reed,Lord Mance |
| Judgment Date | 08 July 2015 |
| Neutral Citation | [2015] UKSC 47 |
| Court | Supreme Court |
| Date | 08 July 2015 |
[2015] UKSC 47
Lady Hale, Deputy President
Lord Mance
Lord Clarke
Lord Wilson
Lord Reed
Appellant
Ian Wise QC Stephen Broach
(Instructed by Scott-Moncrieff & Associates Ltd)
Respondent
Tim Buley
(Instructed by Government Legal Department)
Heard on 26 March 2015
Lord Wilson (with whom Lady Hale, Lord Clarke and Lord Reed agree):
By notice dated 3 November 2010 the Secretary of State for Work and Pensions, in accordance with regulations, suspended payment to Cameron Mathieson, then a boy aged three, of Disability Living Allowance ("DLA") on the ground that he had by then been an in-patient in an NHS hospital for more than 84 days (12 weeks). Did the Secretary of State thereby violate Cameron's human rights?
On 10 January 2012 the First-tier Tribunal (Social Security and Child Support) dismissed Cameron's appeal against the Secretary of State's decision to suspend payment of the DLA. On 15 January 2013 the Upper Tribunal (Administrative Appeals Chamber) determined a further appeal which Cameron had brought and with which, following his sad death on 12 October 2012, his father, Mr Craig Mathieson, had proceeded pursuant to an appointment under regulation 30(1) of the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968). The Upper Tribunal set aside the decision of the First-tier Tribunal on the ground of an error of law but, in the event, it likewise dismissed the appeal. On 5 February 2014, by a judgment delivered by Laws LJ with which Ryder and Underhill LJJ agreed, the Court of Appeal dismissed Mr Mathieson's further appeal: [2014] EWCA Civ 286. Mr Mathieson now appeals to the Supreme Court.
Cameron was born on 19 June 2007. He lived in Warrington with his parents, together with his sister and two brothers who, at the time of his birth, were aged about ten, nine and two. At his birth, part of his bowel had to be removed. Shortly afterwards he was diagnosed with cystic fibrosis and, later, also with Duchenne muscular dystrophy. The conjunction of both conditions in Cameron was one of profound misfortune and grim prognosis which at that time befell only one other child in the UK. The muscular dystrophy precipitated severe developmental delay. One area of it was in Cameron's ability to communicate; so Mr Mathieson learnt the signs and symbols of Makaton in order better to communicate with him. Other conditions, including a clotting disorder and deep vein thrombosis in his left leg, made his needs even more complex. Mr and Mrs Mathieson had to learn how to administer chest physiotherapy to him, entailing chest percussion and postural drainage, for 20 minutes twice a day. Thereafter they had to prepare and administer nebulised antibiotics to him through special equipment, as well as a host of other medications and supplements. Mr and Mrs Mathieson found that Cameron's need for exceptional and sophisticated care and attention, together with the ordinary care needs of the three older children, required them to relinquish their business and, once they had spent their savings, to fall back on state benefits. The First-tier Tribunal described Cameron as having the most severe and profound disabilities likely to come before a tribunal and added that he was blessed with loving and caring parents who were utterly devoted to his care.
On 4 July 2010 Cameron, who was showing symptoms of chronic bowel obstruction, was admitted to Ward C2 in the specialist respiratory unit at Alder Hey Hospital, Liverpool. He was to remain there until 4 August 2011. The doctors considered that he had needs for an even more complex package of care, including intravenous feeding, which could not easily be set up for delivery to him by Mr and Mrs Mathieson at home.
It is important to note the role played by Mr and Mrs Mathieson at Alder Hey during the 13 months of Cameron's treatment there. In this connection Nurse Burrows, an advanced nurse specialist attached to the cystic fibrosis team at the unit, wrote a report dated 28 October 2010, which, as the fact-finder, the First-tier Tribunal unsurprisingly accepted as accurate. The nurse reported that:
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(a) Cameron's care needs far exceeded those of any other child in the clinic;
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(b) the clinic relied heavily on Mr and Mrs Mathieson to undertake his daily care in the clinic;
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(c) one or other of Mr and Mrs Mathieson was resident in the hospital at all times;
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(d) "they remain[ed] his primary caregivers";
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(e) the clinic relied on them to monitor his condition daily and on several occasions they were the first to notice deterioration in it;
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(f) they participated in all discussions and decisions about his care;
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(g) as they had done at home, they administered chest physiotherapy to Cameron at the clinic twice a day and thereafter the nebulised antibiotics;
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(h) they prepared and administered his feeding by nasogastric tube;
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(i) they administered warfarin to him in order to combat the clotting; and
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(j) they changed his stoma bags up to eight times a day.
Mr Mathieson supplemented the evidence of the nurse. He said that Ward C2 had 13 beds for children in individual rooms; that most of the children there needed constant care; that the nurses were capable and dedicated but that there were never more than three of them at any one time; that parental care of the children was recognised as essential; that the result of the need for him or Mrs Mathieson to be at the hospital meant that during those 13 months they in effect spent no time together; that each of them had at first made numerous journeys from Warrington to Alder Hey (25 miles) and back in the family car but had been constrained to reduce them because of the cost of petrol; that, until it became too expensive, they had also regularly brought the older children to see Cameron at weekends; that, on days when he was well enough and with the encouragement of the clinic, they had taken Cameron back to his nursery school in Warrington for a short time and had then returned him to Alder Hey (ie another 50-mile journey); that, although he and Mrs Mathieson had been able to sleep free of charge either on camp beds alongside Cameron or in the Ronald McDonald house for parents at Alder Hey, they had incurred further expenditure in respect of food and drink for themselves, of parking and of Cameron's laundry; and that in his estimate (which the Upper Tribunal accepted) the extra expense caused by the need for Cameron to be moved to Alder Hey had been about £8,000 over the 13 months.
DLA was introduced by the Disability Living Allowance and Disability Working Allowance Act 1991 ("the 1991 Act"). The favoured mechanism was to insert sections about it into the Social Security Act 1975 ("the 1975 Act"). One section, namely section 37ZA, provided, at subsection (1), that DLA was to consist of a care component and a mobility component. Prior to 1991 the benefit analogous to the care component had been the attendance allowance, which, by section 2(1) of the 1991 Act, was from then onwards restricted to those aged at least 65; and the benefit analogous to the mobility component had been the mobility allowance, which, by section 2(3) of the 1991 Act, was abolished. In 1992 the 1975 Act was repealed and the provisions for DLA were incorporated into sections 71 to 76 of the Social Security Contributions and Benefits Act 1992 ("the Benefits Act"). These sections remain in force. Under Part 4 of the Welfare Reform Act 2012 ("the 2012 Act"), DLA is to be replaced by the personal independence payment; and, once the scheme for making such payments is fully operable, the provision in section 90 of the 2012 Act for the repeal of sections 71 to 76 of the Benefits Act will come into force. To date, however, the personal independence payment has been introduced only for persons aged at least 16: regulation 5 of the Personal Independence Payment (Transitional Provisions) Regulation ( SI 2013/387).
Section 72 of the Benefits Act governs entitlement to the care component. Cameron's entitlement derived from the second and third, labelled (b) and (c), of the three conditions set in subsection (1), which requires the person to be "so severely disabled physically or mentally" that (b) by day, he requires from another person frequent attention throughout the day in connection with his bodily functions and (c) at night, he requires from another person prolonged or repeated attention in connection with his bodily functions. In Cockburn v Chief Adjudication Officer; Secretary of State for Social Security v Fairey (aka Halliday) [1997] 1 WLR 799 the House of Lords held that the phrase "bodily functions" relates primarily to activities which the fit person normally performs for himself and which involve a high degree of physical intimacy; and Lord Hope of Craighead, at p 821, offered examples, namely getting into and out of bed, eating, drinking, bathing, washing hair and going to the lavatory. Subsection (1A) of section 72 of the Benefits Act adds that, in relation to a person under the age of 16, the conditions in subsection (1)(b) and (c) are satisfied only if his requirements are "substantially in excess of the normal requirements of persons of his age".
Section 72(3) and (4) of the Benefits Act specifies three rates of the care component – the highest rate, the middle rate, and the lowest rate – and provides that a person who satisfies the conditions set in both (b) and (c) of subsection (1) is entitled to the highest rate.
Section 73 of the Benefits Act governs entitlement to the mobility component. Cameron's entitlement derived from the conditions set in subsection (1)(a), which...
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