ML v Secretary of State for Work and Pensions (DLA)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Markus |
| Neutral Citation | [2016] UKUT 323 (AAC),[2016] UKUT 323 (AAC),[2017] AACR 2 |
| Subject Matter | DLA,AA: personal care,Human rights law,AA: personal care - other,Human rights law - article 14 (non-discrimination),Markus,K |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Date | 08 July 2016 |
[2017] AACR 2
(ML v SSWP)
1
[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 t he care services
provided by the home meant that regulation 9 did not apply, either because n ot 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 discri minatory contrary t o Art icle 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:
1. the statutory requirement under regulation 9 was met for any p eriod where the claimant was resident in a
care home and the costs of any qualifying services were publicly funded, and it was n ot necessary under the
legislation for all three qualifying services to be provided to him (paragraph 14);
2. the statutory definition of “care home” in section 72(9) required the provision of accommodation and
personal care (or nursing car e) 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);
3. (obiter) it was t he statutory responsibility of the Care Quality Commission (CQC) to assess the quality of
care in residential care homes a nd 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, t here 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);
4. 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 h ome, 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
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