Blog by Desmond Rutledge of the Garden Court Chambers Welfare Benefits Law Team.
The claimant, born in 1961, had learning disabilities, Down’s syndrome and was deaf and blind. He also had a number of significant physical disabilities. He had been entitled to disability living allowance (DLA) at the highest rate of each component since 1993. In mid-2016 he was admitted to an NHS hospital and was eventually discharged to a care home in August 2017. However, his sister, who was his appointee for benefit purposes and his Deputy for welfare purposes, did not report the hospital admissions to the DWP until March 2017. The DWP subsequently decided that DLA had not been payable to the claimant after 28 days as an in-patient in a publicly-funded hospital (Social Security (Disability Living Allowance) Regulations 1991, SI 1991/2890 regs 8 and 12A). The decision was upheld by a First-tier Tribunal. The appointee appealed to the Upper Tribunal, arguing that the 28-day hospital rule for adults infringed the claimant’s rights under Article.14 and A1P1 of the ECHR by analogy with Mathieson v SSWP  UKSC 47
It was common ground that the claimant had the status of a severely disabled adult in need of lengthy inpatient hospital treatment for the purposes of Article 14 of the ECHR. But an alternative status was advanced on behalf of the claimant, namely: a severely disabled adult who lacks capacity to make decisions about care and medical treatment in need of lengthy in-patient treatment. UTJ Ward held that capacity was unsuitable as a key element in identifying “status” for the purposes of article 14 as it lacked a sufficient quality of durability to constitute a status and it would give rise to administrative difficulties:
“I accept that there is no easy proxy for determining whether or not a person is lacking in capacity, whether for decisions about care and medical treatment or otherwise. In the present case, a Deputy has been appointed, with functions which make the question relatively straightforward to answer. Others may have given a lasting power of attorney in respect of personal welfare decisions, in which case the Office of the Public Guardian should have been informed if it is suspected that a person is losing capacity. In yet further cases, no such formal arrangements will have been put in place and whether a person has capacity for a particular decision or not will have to be assessed on the spot in accordance with the provisions of the Mental Capacity Act. Whilst it may be the case that assessments of the capacity of a person who is in hospital but who does not have a Deputy nor has given a power of attorney for personal welfare may have to be carried out and should be recorded, not only would it be a considerable burden on the DWP to obtain that record and on NHS staff to provide it, but more fundamentally, if lack of capacity is the trigger for finding that there has been a breach of a claimant’s human rights, a breach which is not present when the person does have capacity, there is a risk of people moving in and out of being the subject of a breach of the ECHR on a virtually daily basis” (at para 7).
The Judge said that if the claimant had a “status” which was not defied by reference to a lack of capacity he would dismiss the appeal on the basis that any different in treatment was justified. After reviewing the evidence the Judge said:
- he was not satisfied that, in general, family members were required to assist in proving care to a person with learning disabilities who is in hospital;
- the fact that family members may wish to attend to support the patient does not make it equivalent situation to that which prevailed in Mathieson;
- it did not make a material difference that the person providing support was acting as a Deputy as the responsibilities of a Deputy are cast in terms of taking decisions, rather than the direct provision of care;
- the basic rationale for the rule was the avoidance of double provision from public funds for the same contingency.
On the evidence in this case the needs of the patient were being met by the NHS.
On those facts, the Secretary of State was entitled to rely on the DLA Regulations as they stood.
Comment: UTJ Ward has granted the claimant permission to appeal.