MOC (by his litigation friend, MG) v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Lady Justice Andrews,Lord Justice Peter Jackson |
| Judgment Date | 11 January 2022 |
| Neutral Citation | [2022] EWCA Civ 1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2021/0196 |
[2022] EWCA Civ 1
Lord Justice Peter Jackson
Lord Justice Singh
and
Lady Justice Andrews
Case No: C3/2021/0196
IN THE COURT OF APPEAL
ON APPEAL FROM
THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
(Upper Tribunal Judge Ward)
Royal Courts of Justice
Strand, London, WC2A 2LL
Amanda Weston QC, Desmond Rutledge and Ollie Persey (instructed by Merseyside Law Centre) for the Appellant
Joanne Clement and Alice Richardson (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 2 December 2021
Approved Judgment
Remote hand-down: This judgment was handed down remotely at 10 a.m. on Tuesday, 11 January 2022 by circulation to the parties or their representatives by email and by release to BAILII and the National Archives.
Introduction
In regulations which govern entitlement to, and payment of, Disability Living Allowance (“DLA”), there is what has been described in these proceedings as the “Hospitalisation Rule”. This rule provides that, if someone aged over 18 is admitted to an NHS hospital, payment of DLA is suspended after 28 days in hospital. The rationale for this is that payment would represent duplication of public funding to meet the same purpose. The issue on this appeal is whether the Hospitalisation Rule unlawfully discriminates against the Appellant, contrary to Article 14 of the European Convention on Human Rights (“ECHR”), read with Article 1 of the First Protocol (“A1P1”), which are among the Convention rights set out in Sch. 1 to the Human Rights Act 1998 (“ HRA”).
The Appellant in this case is MOC, who was born in 1961, and has complex medical conditions and disabilities. His sister, MG, has been appointed to act as his deputy by the Court of Protection. MOC has been awarded the highest rate of both the care component and the mobility component of DLA since 6 December 1993 and received similar predecessor benefits before that. On 29 June 2016 MOC was admitted to hospital, re-admitted on 23 July 2016 and has, since 26 August 2017, resided at a nursing home within a local hospital. In consequence the Hospitalisation Rule was applied to him and payment of both the care component and the mobility component of DLA were suspended after 28 days in hospital. Payment of the mobility component was reinstated on his transfer to the nursing home.
MOC's appeals to the First-tier Tribunal (Social Entitlement Chamber) (“FTT”) and subsequently to the Upper Tribunal (Administrative Appeals Chamber) (“UT”) were dismissed. He now appeals to this Court with the permission of the UT.
Factual background
MOC is a male who is now 60 years old. He has complex medical conditions and disabilities including cognitive, mental capacity and mental health issues, Down's Syndrome, deafness, blindness, dermatological issues, mobility issues, Hirschsprung Disease, double incontinence, dietary issues and severe learning disabilities.
On 6 April 1992 MOC started receiving DLA on account of his disability and, from 6 December 1993, at the highest rate of both components.
On 28 September 1996 MOC started residing with his sister MG in her home with around-the-clock care provided by MG and her family.
On 29 March 2010 the Court of Protection made an order appointing MG as MOC's welfare deputy under section 16 of the 2005 Act and authorised MG to make seven defined decisions on MOC's behalf if he is unable to make them himself when they need to be made. MG has also been MOC's appointee for benefit administration purposes for many years pursuant to the relevant social security regulations: see regulation 33 of the Social Security (Claims and Payments) Regulations 1987 (SI 1987 No. 1968).
On 29 June 2016 MOC was admitted to hospital for an emergency operation and later discharged on 1 July 2016. He was re-admitted on 23 July 2016 and on 21 September 2016, was transferred to a specialist neuro-rehabilitation unit.
On 28 March 2017 MG first notified the Respondent by telephone of the hospitalisation periods. On 10 April 2017 the Respondent suspended MOC's DLA from 24 August 2016 to 11 April 2017 on the basis that he had been in hospital for over 28 days. On 30 April 2017, MG requested a Mandatory Reconsideration of this decision and, on 26 May 2017, the Respondent issued a Mandatory Reconsideration Notice maintaining the decision. On 15 June 2017 MG was served with a Notice of Overpayment requiring payment of £2,469 for the period 24 August 2016 to 21 March 2017 plus a £50 penalty. This was put on hold pending the outcome of the appeal.
On 26 August 2017, eleven months after transferring to the specialist unit, MOC was discharged to the nursing home, where he has resided since. At this point, the mobility component of DLA again became payable and was paid. The care component, however, is not payable under regulation 8 of the DLA Regulations.
Material legislation
DLA
DLA is a non-contributory, non-means-tested benefit which is intended to provide severely disabled people with a financial contribution towards the extra costs associated with their disability. It was introduced in 1992. It replaced two earlier benefits (Attendance Allowance and Mobility Allowance) with a single benefit with two components. Sections 71 to 76 of the Social Security Contributions and Benefits Act 1992 (“the 1992 Act”) contain the provisions governing DLA. Similar provisions were originally inserted into the Social Security Act 1975 (repealed in 1992) by the Disability Living Allowance and Disability Working Allowance Act 1991. DLA is a benefit for people under 66 with a care and mobility component. The test for entitlement is found in section 72 of the 1992 Act: persons satisfying the conditions of subsections 1(b) and 1(c) are entitled to the highest rate of the care component. Section 73 of the 1992 Act governs entitlement to the mobility component. DLA is being gradually replaced by Personal Independence Payment (“PIP”) for people aged over 16 but under 66 years of age, under Part 4 of the Welfare Reform Ac 2012.
Section 73 of the Social Security Administration Act 1992 Act confers power on the Secretary of State to make regulations which may provide for adjusting benefits payable to a person undergoing medical or other treatment as an in-patient in a hospital. The relevant regulations are 8, 10, 12, 12A and 12B of the Social Security (Disability Living Allowance) Regulations 1991 (SI 1991 No. 2890) (“the DLA Regulations”). These regulations provide that, if someone aged over 18 is admitted to an NHS hospital, payment of DLA is suspended after 28 days. For convenience, this is referred to as the Hospitalisation Rule. Although this rule suspends payment, it does not remove the underlying entitlement to DLA.
On 9 May 2016, the Social Security (DLA and Personal Independence Payment) (Amendment) Regulations 2016 (SI 2016 No. 556) were laid before Parliament and came into force on 29 June 2016. Prior to this amendment, anyone under 16 would be paid DLA for the first 84 days of any hospitalisation but, following the decision of the Supreme Court in Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47; [2015] 1 WLR 3250, the regulations were amended so that anyone under 18 will continue to receive DLA payments while in hospital. The Hospitalisation Rule applies equally to those in receipt of PIP: see section 73(6) of the Social Security Administration Act 1992.
By section 1(2) of the Mental Capacity Act 2005 (“the 2005 Act”), a person must be assumed to have capacity unless it is established that he lacks it. Section 2(1) provides that:
“For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”
Section 2(2) provides that it does not matter whether the impairment or disturbance is permanent or temporary.
Section 3(1)(a)-(d) sets out the four circumstances in which a person is unable to make a decision for himself.
Under section 16 of the 2005 Act, the Court of Protection has powers to appoint a deputy if a person lacks capacity in relation to a matter or matters concerning that person's (“P's”) personal welfare or property and affairs and in accordance with several principles, including the principle of P's best interests and the principle that the powers conferred should be limited. Guidance is provided in a Code of Practice issued under the 2005 Act.
Section 16(2) provides that the Court may either (a) by making an order, make a decision on behalf of P, or (b) appoint a person (a “deputy”) to make decisions on P's behalf in relation to the relevant matter. Subsection (1) makes it clear that section 16 applies if P lacks capacity in relation to a matter concerning either (a) P's personal welfare, or (b) P's property and affairs.
Section 19 of the 2005 Act relates to the appointment of deputies. In particular, subsection (6) provides that a deputy is to be treated as P's agent in relation to anything done or decided by him within the scope of his appointment.
Section 6(1) of the HRA makes it unlawful for a public authority to act in a way which is incompatible with the Convention rights. This is subject to exceptions which are not material for present purposes. The relevant Convention rights are set out in Sch. 1 and include Article 14 and A1P1.
Article 14 of the ECHR provides that:
“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...
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