Suspension of DLA after 28 days in hospital did not violate Article 14 ECHR, in case of an adult patient with severe learning disabilities

The Appellant, MOC, born in 1961, had learning disabilities, Down’s syndrome and was deaf and blind. He also had a number of significant physical disabilities.  MOC had been residing with his sister MG in her home, where around-the-clock care was provided by MG and her family.  MG had been appointed to act as his deputy by the Court of Protection and was his appointee for benefit purposes.  In July 2016, MOC entered hospital as an in-patient and after 28 days payment of his disability living allowance (DLA) was suspended under the “Hospitalisation Rule” (Social Security (Disability Living Allowance) Regulations 1991, SI 1991/2890 regs 8 and 12A).  MG submitted an appeal against the decision to suspend MOC’s DLA to a First-tier Tribunal (FTT), relying on the Supreme Court’s decision in Mathieson v SSWP [2015] UKSC 47.

The FTT made a finding that responsibility for the monitoring and care of the Appellant lay with the nursing staff, and not MG and that the Hospitalisation Rule therefore applied.  When the appeal came before the Upper Tribunal (‘UT’) the Respondent relied on a witness statement filed by the Head of DLA and Personal Independence Payment Policy which stated that the NHS was expected to meet the basic needs of adults in hospital and that members of a patient’s family were not expected to meet those needs. The UT Judge rejected the Appellant’s Article 14 argument based on Mathieson holding, that capacity was unsuitable as a key element in identifying a “status” for Article 14 as it was too “potentially evanescent”. 

The UT Judge went on to consider the issue of justification in case his conclusion on status was incorrect.  The UT Judge said that whilst anyone acting as a deputy would need to have an understanding of the patient’s needs and wishes, it did not follow that it has to be acquired from a hands-on caring role.  The UT Judge concluded that there was no evidence that the NHS would require carer input in the care of a patient with severe learning disabilities to the extent claimed by MG.  The UT Judge said the rationale for the Hospitalisation Rule was the avoidance of double provision from public funds for the same contingency but in the present case, the needs of the patient were being met by the NHS and the Secretary of State was entitled to draw the line as she did.

Before the Court of Appeal, the Appellant made an application to amend the grounds so as to read that the UT Judge erred in finding that “a severely disabled adult in need of lengthy in-patient hospital treatment who for the time being is being treated as unable to make decisions as to care or medical treatment” could not be a status for the purposes of Article 14.  On behalf of the Appellant it was submitted:

• two main issues arise under the appeal, one relating to MOC’s status; and the second on the UT’s conclusion on justification.  The Judge erred on the status issue, and this fundamental error then tainted his approach to the issue of justification;
• that lack of capacity should be treated as a protected status due to its parasitical effects rather than its legal definition;
• in concluding that MG’s work was that of a family member or friend, the UT failed to recognise that in this case, the law had recognised that the protective functions of a welfare deputy were necessary;
• that the Hospitalisation Rule disadvantages MOC because the suspension of the care component of DLA has an adverse impact on his deputy’s ability to fulfil her functions on his behalf in relation to his care and treatment;
• if the person fulfilling the deputy role does not duplicate care provided by the NHS but acts to protect MOC’s autonomy and agency, then the rationale of the Judge’s justification based on non-duplication falls away;
• the role of the deputy, principally communicating effectively in the way MOC would wish, is not met by nursing care;
• if the Court agreed with those submissions, then the factual inquiry below was not directed to the key questions, especially concerning the deputy’s role and functions; and the case should be remitted for relevant findings of fact to be made.

The Court of Appeal dismissed the appeal.  On the issue of MOC’s status Singh LJ said:

“I have reached the conclusion that the Judge cannot be criticised for reaching the conclusion which he did on the question of status. He was right to observe that the question of capacity as such is not a status. First, the scheme of the 2005 Act was designed to move away from a status-based approach to a functional approach, in other words, to focus on particular decisions at a particular time. Secondly, there needs to be reasonable certainty: a person’s capacity may change from time to time and may do so quickly. That is not a sound foundation for the “status” required by Article 14,” (at [65]).

Peter Jackson LJ said:

"I agree with Singh LJ. The appeal does not turn on the issue of status, but I particularly agree with what Judge Ward said at para. 22 (see para. 34 above). It is the function of a welfare deputy to make decisions on behalf of a person lacking capacity, not to provide care, or indeed to direct it. In reality, the devoted support provided to MOC by MG was provided as a family member and not as his welfare deputy. More fundamentally, I agree with Singh LJ (see para. 65) that there are good reasons of principle and practicality why decision-making capacity does not provide a sound foundation for an Article 14 status. In my view, status is likely to be found in the disability itself, and not in the separate matter of capacity, and that is the conclusion to be reached in the present case,” (at [76]).

On justification, the Court agreed with the UT Judge, holding that the Hospitalisation Rule did have an objective and reasonable basis such that it satisfied the principle of proportionality (at [70]) adding that as the issue concerned a legislative measure of general application it was not affected by the facts of this particular case (at [72]).

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Click here to download the full judgment – MOC (by MG) v SSWP [2022] EWCA Civ 1