ML CDLA 4367 2014
| Jurisdiction | UK Non-devolved |
| Judge | Judge K Markus QC |
| Judgment Date | 08 July 2016 |
| Neutral Citation | 2016 UKUT 323 AAC |
| Subject Matter | Human rights law |
| Respondent | Secretary of State for Work and Pensions (DLA) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CDLA 4367 2014 |
| Appellant | ML |
[2017] AACR 2
(ML v Secretary of State for Work and Pensions (DLA)
[2016] UKUT 323 (AAC))
Judge Markus QC CDLA/4367/2014
8 July 2016
Human rights – suspension of DLA care component in residential care home not discrimination – Article 14
Disability living allowance – personal care – quality of care provision not relevant under regulation 9
The claimant, who had autism and learning disabilities, had lived for some two years in a residential care home partly funded by the NHS. The Secretary of State decided that the care component of disability living allowance (DLA) was not payable for this period under section 72(8) of the Social Security Contributions and Benefits Act 1992 and regulation 9(1) of the Social Security (Disability Living Allowance) Regulations 1991. The First-tier Tribunal upheld that decision, deciding that the claimant had been resident in a care home where he had received accommodation, board and personal care paid for by public funds under the Mental Health Act 1983. The claimant appealed to the Upper Tribunal where it was argued on his behalf, first that the inadequacy of the care services provided by the home meant that regulation 9 did not apply, either because not all three “qualifying services” were provided to the claimant or because the personal care he received was too poor to satisfy section 72(9), and secondly that the regulation was discriminatory contrary to Article 14 of the European Convention on Human Rights: Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47; [2015] 1 WLR 3250; [2015] AACR 19.
Held, dismissing the appeal, that:
- the statutory requirement under regulation 9 was met for any period where the claimant was resident in a care home and the costs of any qualifying services were publicly funded, and it was not necessary under the legislation for all three qualifying services to be provided to him (paragraph 14)
- the statutory definition of “care home” in section 72(9) required the provision of accommodation and personal care (or nursing care) but was silent as to the quality of the personal care provided. It was concerned with the nature or function of the establishment not the services actually provided to any particular individual. Regulation 9 applied if the claimant was in an establishment which had the characteristics of a care home (paragraphs 15 to 18)
- (obiter) it was the statutory responsibility of the Care Quality Commission (CQC) to assess the quality of care in residential care homes and to correct inadequate provision. A care home could not be registered unless the CQC was satisfied that care was being provided in accordance with the statutory framework, including meeting the individual needs of the residents. Where the CQC had judged that those standards were met, there was no proper basis for the DWP or tribunals to intervene, as the CQC was the independent and expert body set up to make such judgments (paragraphs 18 to 21)
- Regulation 9 was a proportionate means of avoiding duplication of state provision to meet the care needs of disabled people: Mathieson distinguished. Where the system operated as it should, the care needs of disabled people in residential homes would be met. The system recognised that there will be failings and had processes in place to remedy them. As the state was paying for care in the residential home, it was entitled to adopt a position whereby deficiencies were remedied, rather than paying extra to substitute for inadequate care. In the light of the above, regulation 9 was compatible with Article 14 and the claimant did not suffer discrimination contrary to Article 14 (paragraphs 44 to 45).
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
DECISION
The appeal is dismissed.
REASONS FOR DECISION
Background
- At the time of the Secretary of State’s decision which is the subject of this appeal, ML was 21 years old. He has autism and learning difficulties. His father (RL) is his appointee.
- A new claim for disability living allowance (DLA) was made for ML on 29 January 2010. On 16 February 2010 he was awarded the lower rate mobility component and the highest rate care component of DLA with effect from 29 January 2010. The Secretary of State now agrees that the mobility component should have been awarded at the higher rate from that date. On 20 June 2016, after the Upper Tribunal appeal hearing, the Secretary of State revised the decision accordingly. That reflects the agreed position of the parties at the hearing.
- Between September 2011 and September 2013, after a period of detention in hospital under the Mental Health Act 1983, ML resided in a residential care home (“the Home”). The Home was registered as “caring for adults under 65 years” with learning or physical disabilities. ML’s placement was funded in part by the NHS pursuant to section 117 Mental Health Act. On 25 June 2013, by way of supersession of the decision of 16 February 2010, the Secretary of State decided that the care component was not payable while ML was resident in the Home. RL appealed unsuccessfully to the First-tier Tribunal and, with the permission of the First-tier Tribunal, now appeals to the Upper Tribunal.
Statutory framework
- Section 72 of the Social Security Contributions and Benefits Act 1992 empowers the making of regulations to provide that the care component of DLA will not be payable where a person is resident in a care home at public expense, as follows:
“(8) Regulations may provide that no amount in respect of a disability living allowance which is attributable to entitlement to the care component shall be payable in respect of a person for a period when he is a resident of a care home in circumstances in which any of the costs of any qualifying services provided for him are borne out of public or local funds under a specified enactment.
(9) The reference in subsection (8) to a care home is to an establishment that provides accommodation together with nursing or personal care.
(10) The following are qualifying services for the purposes of subsection (8) –
(a) accommodation,
(b) board, and
(c) personal care.”
- Regulation 9 of the Social Security (Disability Living Allowance) Regulations 1991 (SI 1991/2890) (“the DLA Regulations”), made pursuant to that power, includes the following:
“(1) …a person shall not be paid any amount in respect of a disability living allowance which is attributable to entitlement to the care component for any period where throughout that period he is a resident in a care home in circumstances where any of the costs of any qualifying services provided for him are borne out of public or local funds under a specified enactment.
(2) The specified enactments for the purposes of paragraph (1) are –
(a)
…(v) the Mental Health Act 1983”
The decision of the First-tier Tribunal
- RL submitted that the Home was not a “care home” within regulation 9 and that qualifying services were not provided to him there, and so he argued that the care component of DLA should not have been suspended.
- The tribunal noted that it was accepted that ML was resident at the Home during the period in question. Its reasons on the issue were as follows:
“30. Mr [RL] told the Tribunal that [ML’s] family had been unhappy with the quality of the care [ML] received at [the Home]. Family members visited every day to provide additional care in relation to the maintenance of his personal hygiene. Eventually they made the decision to remove him from the home because they considered he was not being looked after properly.
31. The Tribunal accepted [RL’s] evidence in relation to the deficiencies of the care provided to [ML] by [the Home]. However, we found on the facts that [the Home] was indisputably a ‘care home’ within the terms of the regulation. It provided ‘accommodation’ and ‘personal care’.
32. Once it has been established that the residence is a ‘care home’ there is no scope within the wording of Regulation 9 for an analysis of the nature and quality of the care services it provides.”
- The tribunal also decided that ML received all three qualifying services listed in section 72(10) of the 1992 Act, notwithstanding that the family was unhappy with the quality of the personal care provision. Funding was provided under a specified enactment (the Mental Health Act 1983). Accordingly the tribunal...
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