MH v Secretary of State for Work and Pensions (PIP)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Lane |
| Neutral Citation | [2017] UKUT 424 (AAC) |
| Subject Matter | Human rights law,Personal independence payment – mobility activities,Human rights law - article 14 (non-discrimination),Personal independence payment – mobility activities - Mobility activity 2: moving around,Lane,S |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Date | 24 October 2017 |
[2018] AACR 15
(MH v SSWP)
1
[2018] AACR 15
(MH v Secretary of State for Work and Pensions (PIP)
[2017] UKUT 424 (AAC))
Judge Lane CPIP/2017/2016
24 October 2017
Human Rights – Article 14 ECHR – whether suspension of the mobility component for
long-term in-patients of hospitals or similar institutions constitutes unlawful
discrimination
The claimant was a resident in-patient at a Neurodisability Centre, a publicly funded institution similar to a
hospital, where he required round-the-clock care. Thorough an appointee he succ essfully cla imed Personal
Independent Payment (PIP ). However, payment of benefit wa s subsequently suspe nded on the basis that he was
an in-patient under regulation 29 of the Social Security (Personal Independent Payment) Regulation 2013. T he
First-tier Tribunal upheld that decision and the claimant appealed to the Upper Tribunal. The appea l concerned a
single issue, namely whether section 8 6 of the Welfare Reform Act 2012 and regulation 29 d iscriminated
unjustifiably against a person who was an in-patient in an institution similar to a hospital and whose care was
maintained out of public funds by providing that the mobility component of PIP was not payable to such a
person. The claimant’s representatives argued that the claimant was being treated differently than disabled
people living at home or in care homes, who would retain payment of the mobility component (i f awarded) and
that the regulations were in breach of Article 14 of the European Convention on Human Rights (ECHR), as
incorporated into UK law by the Human Rights Act 1998, and the UK’s obligations under the UN Co nvention on
the Rights of Persons with Disabilities (UNCRPD). The Secretary of State argued that payment of the mobility
component to in-patients would amount to double provision as assistance was alr eady provided by the NHS in
such cases and that the suspension of benefit was justified to target scarce resources.
Held, dismissing the appeal, that:
1. there were insufficient similarities between in-patients and disabled claimants living at home to require
justification under ECHR in respect of the different treatment. Claimants who can live at home remain in their
community and are likely to have a range of mobility need s in that community similar to those they had before
becoming d isabled, and similar to those of non-disabled people living at home. These require the claimant to
venture outdoors, or have someone run their errands for them (paragraphs 27 to 28);
2. in-patients and care home residents are also not true comparators. In-patients as a cla ss are substantially
less likely to need to mobilise beyond the perimeter of the estab lishment in comparison to those living in care
homes. It was incorrect to say that the mobility needs of in-patients was as great, if not greater, than those at
home or in a care home (paragraphs 29 to 31 and 42);
3. if in-patients and care home residents were comparable groups, there was a plain overlap between the
scope of the mobility component and the assistance pro vided to in-patients by the NHS and NHS continuing care
packages. On that basis, t here was double provision. T he elimination of double provision had long been the
policy of successive Governments in relation to disability b enefits and it was a legitimate aim (paragraphs 53 to
54);
4. the Government’s economic policy to control escalating welfare spending and hence maintain the
economic wellbeing of the country was a legitimate aim under the ECHR and it was not irrational, unreasonable
or disproportionate to choose to target funds in this way (paragraph 61);
5. the UNCRPD, unlike ECHR, was not incorporated into domestic law and the tribunal did not have
jurisdiction over the Convention (paragraph 70).
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The appeal is dismissed. The decision of the First-tier Tribunal did not involve the making of
an error of law that was material to the outcome of the decision.
[2018] AACR 15
(MH v SSWP)
2
REASONS FOR DECISION
1. This decision is given following an oral hearing on 26 April 2017. I apologise for the
delay in promulgating it.
2. The appellant, MH, is severely disabled. He did not attend the hearing and brings this
appeal through his appointee, IH, who is his brother. IH was represented at the hearing by Mr
Makesh Joshi, of French and Co Solicitors. The respondent was represented by Mr T Buley
and Mr Toby Fisher, of counsel. I am grateful for their assistance.
3. The appeal concerns a single issue: whether section 86 of the Welfare Reform Act
2012 and regulation 29 of the Social Security (Personal Independence Payment) Regulations
2013 (SI 2013/377) discriminate unjustifiably against a person who is an in-patient in an
institution similar to a hospital and whose care is maintained out of public funds by providing
that the mobility component of Personal Independence Payment (PIP) is not payable to such a
person. It is argued that these provisions breach Article 14 of the European Convention on
Human Rights as incorporated into UK law by the Human Rights Act 1998.
Background to PIP
4. PIP is a points-based benefit for claimants who are mentally and/or physically
disabled. It arises under the Welfare Reform Act 2012 and its details are set out in the Social
Security (Personal Independence Payment) Regulations 2013 (the Regulations) made under
that Act. PIP will eventually replace its predecessor benefit, Disability Living Allowance
(“DLA”).
5. PIP comprises a daily living component and a mobility component. Each component
is made up of a number of general activities which are sub-divided into aspects of that
activity. These are called “descriptors”, to which points are ascribed. The activities and
descriptors are found in Schedule 1 of the 2013 Regulations.
6. If, because of their disablement, claimants score sufficient points from the descriptors
from each component respectively, they are entitled to an award of that component. This will
be at either the standard rate of benefit for that component or the enhanced rate. A claimant
needs to score 8 points for the standard rate of benefit or 12 points for the enhanced rate of
benefit. Points scored for activities in one component do not count towards the score of the
other component.
7. Even if a claimant scores sufficient points to be entitled to benefit, section 86 of the
Welfare Reform Act 2012 permits the making of regulations which prevent payment of either
or both components in certain circumstances. I shall refer to this as “suspending” payment.
After 28 days
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, payment of both components is suspended if the claimant is undergoing
medical or other treatment as an in-patient in a hospital or similar institution where the cost of
treatment, accommodation and any related services is borne out of public funds. I shall refer
to this group as “in-patients”.
8. Regulation 29 of the Regulations was made under that power.
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Regulation 30(1). There are exceptions to the rule which are not relevant to this appeal.
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