I had the privilege to act for the Mathieson family in the Upper Tribunal and the Supreme Court. This blog post has been approved by Mr Mathieson and his solicitor, Mitchell Woolf at Scott-Moncrieff and Associates. This post is dedicated to Cameron’s memory as a little boy who has left a great legacy for other families with severely disabled children.
The Supreme Court’s judgment yesterday in Mathieson is an example of the state running far behind the way society now responds to childhood disability.
The issue for the Supreme Court was whether the rule which suspends payment of Disability Living Allowance (DLA) to disabled children once they have been in hospital for 84 days breached the human rights of Cameron Mathieson. Cameron was a severely disabled boy (aged 3 at the time his DLA was suspended) who had both extremely complex needs and the most loving family a little boy could wish for. As the judgment records, the suspension of Cameron’s DLA had a very significant impact on the family’s finances – and indeed on Cameron himself, in that for example fewer family visits could be arranged to him in hospital once DLA was suspended.
The family challenged the suspension of Cameron’s DLA through a lengthy legal appeal. They lost in the First-Tier Tribunal, in the Upper Tribunal and in the Court of Appeal. Cameron sadly passed away during the Tribunal process but to their immense credit his parents continued the fight, in large part to benefit other families.
At each stage prior to the Supreme Court, the Tribunal or Court accepted the Secretary of State’s argument that allowing DLA to continue would be ‘double provision’, because all children’s disability-related needs are met for them in hospital by the NHS. However the Supreme Court comprehensively and unanimously rejected this argument.
The leading judgment by Lord Wilson shows full acceptance of the modern reality of paediatric care, being that families and NHS professionals are partners in the care of sick disabled children in hospital. Essential evidence was produced by the charities Contact a Family and The Children’s Trust to show that in almost every case the level of parental care stays the same or goes up when a disabled child is admitted to hospital. The Citizens Advice Bureau at Great Ormond Street Hospital gave stark evidence that if parents seek to leave their children at GOSH then hospital social workers are informed – because parents are required to attend hospital and ‘take an active part in [the child]’s medical management’.
Lord Wilson recorded that the government simply could not answer this evidence. At para 37 he stated: ‘…there is nothing before the court to indicate that…the Secretary of State has asked himself: are benefits nowadays overlapping to an extent which justifies the suspension of a child’s DLA following his 84th day in hospital?’.
So the Supreme Court found that the rule discriminated against Cameron contrary to Article 14 of the European Convention on Human Rights. Because the rule is set out only in secondary legislation (as opposed to an Act of Parliament) the Secretary of State acted unlawfully under section 6 of the Human Rights Act 1998 in following it and suspending Cameron’s benefits. The family will therefore be entitled to a back payment of the sums they should have received. All this is summarised much more elegantly by Lord Wilson in para 48 of his judgment.
What does this mean for other families? As Lord Wilson noted at para 49, ‘Decisions founded on human rights are essentially individual’. So while the rule remains, the question will need to be asked in every case where a disabled child has been in hospital for 84 days whether it would breach his or her human rights to suspend payment of his DLA. Where his or her family are continuing to provide a high level of care to the child it would seem that the answer to this must inevitably be yes and the benefit must continue. As Lord Wilson noted (also para 49), ‘the court’s decision will no doubt enable many other disabled children to establish an equal entitlement [to Cameron]’.
At present it will be necessary for other families to appeal to the First-Tier Tribunal to challenge any suspension decision made under the existing rule. Evidence will need to be presented to show that the family continue to be actively involved in the child’s care in hospital. However it is to be hoped that the Secretary of State will respond quickly and either scrap the rule or at least modify it significantly to take full account of the Supreme Court’s judgment so that such appeals become unnecessary.
This still however leaves other important questions unanswered. The most obvious is the position of 16 and 17 year olds, who are children for the purposes of national and international law but who are treated as adults under the benefit rules, so lose payment of their DLA after just 28 days in hospital. Equally, what about disabled young people over 18, whose families continue to provide them with significant support but who also lose their DLA after 28 days in hospital? It is likely that these questions will need to be answered through further litigation unless the Secretary of State does the right thing and scraps these rules entirely.
Any Supreme Court judgment has wider implications, and there are at least three I want to highlight from the judgment in Mathieson:
- The Justices have taken a very liberal approach to the vexed question of what constitutes a ‘status’ for the purpose of Article 14 ECHR. All five Justices concluded that Cameron has a relevant ‘status’ as a sick disabled child in hospital, as opposed to disabled child cared for at home – see eg Lord Wilson at paras 19-23. It is particularly helpful for future cases that Lord Wilson strongly suggests at para 23 that different levels of impairment can amount to a difference in ‘status’.
- Mathieson is the latest in a line of recent Supreme Court judgments, most notably in the Benefit Cap case, where the international human rights conventions have played a significant role. At para 41, Lord Wilson found that the Secretary of State was in breach of his international law obligation to treat disabled children’s best interests as a primary consideration – this obligation being imposed by Article 3(1) of the UN Convention on the Rights of the Child and Article 7(2) of the UN Convention on the Rights of Persons with Disabilities. This then assisted the court in finding a breach of Article 14 ECHR, because of the requirement to read the ECHR in harmony with the principles of international law (see Neulinger v Switzerland and Lord Wilson in Mathieson at para 44). There is therefore a growing trend in the Supreme Court (if not yet in the Court of Appeal) towards giving significant weight to relevant international instruments in deciding human rights cases.
- There is a significant run of cases which state that the appellate courts should defer to the expertise of specialist tribunals. Lord Wilson considered those cases in his judgment at paras 45-48; while accepting the principle, he held that the Upper Tribunal had made errors of law in its decision such that its decision did not need to be followed (by contrast to Obrey v Secretary of State for Work and Pensions).
One further issue did not get any consideration in the judgment, which is the relevance of the right to respect for family and private life contained in Article 8 ECHR to the decision to suspend payment of Cameron’s DLA. Because it was accepted by the Secretary of State that the decision fell within the scope of Article 1 of the First Protocol to the ECHR (the right to peaceful enjoyment of ‘possessions’, which includes state benefits), Lord Wilson did not find it necessary to consider the arguments addressed to Article 8. It may be that those arguments take on more significance in another case where (unlike DLA) the benefit is paid not to the child but the parent.
On a practical level, Cameron’s case is an excellent example of strategic litigation in action. The potential to challenge the 84 day rule through an appeal relying on the Human Rights Act was identified in discussions between the charities and lawyers. Cameron’s family received pro bono assistance from the estimable Mitchell Woolf at Scott-Moncrieff and Associates in the First-Tier Tribunal. Some exceptional legal aid funding was obtained in the Upper Tribunal and standard legal aid funded the appeal in the Court of Appeal and the Supreme Court. Throughout the appeal the charities gave fantastic support on social and mainstream media as part of their Stop The DLA Takeaway campaign. In my view Cameron’s case provides an excellent example of how litigation can form an important part of a wider campaign to bring about social change – and hopefully one that can be followed in other areas. The key message is that lawyers and campaigning charities need to work closely together from the outset.
All these implications will play out in future cases. At present we have a further example of the Supreme Court taking disabled people’s rights seriously and applying rigorous scrutiny to the state’s justification for its policies. We should all welcome the fact that we live in a society where the highest court is both willing and able to tackle injustice in state decision making such as that present in Cameron’s case. Given the direction of travel it is likely that a number of other such challenges relating to disabled people’s human rights will continue to come before the highest court.