Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47

Cameron Mathieson, a severely disabled child, had his Disability Living Allowance suspended after 84 days as an NHS in-patient. The Supreme Court held this violated his rights under Article 14 ECHR taken with A1P1, as the Secretary of State failed to justify the discriminatory treatment.

Facts

Cameron Mathieson was born in 2007 with cystic fibrosis and Duchenne muscular dystrophy, conditions described by the First-tier Tribunal as among the most severe and profound disabilities likely to come before a tribunal. From 4 July 2010 to 4 August 2011, he was an in-patient at Alder Hey Hospital, Liverpool. Throughout this period, his parents remained his primary caregivers, providing chest physiotherapy, administering nebulised antibiotics, feeding by nasogastric tube, administering warfarin, and changing stoma bags up to eight times daily.

By notice dated 3 November 2010, the Secretary of State suspended payment of Cameron’s Disability Living Allowance (DLA), comprising both the highest rate care component and higher rate mobility component, with effect from 6 October 2010, on the basis that he had been an in-patient for more than 84 days under regulations 8, 10, 12A and 12B of the Social Security (Disability Living Allowance) Regulations 1991. The family suffered a loss of approximately £7,000 in income while incurring around £8,000 in additional expenses. Cameron sadly died on 12 October 2012, and his father continued the appeal.

Issues

The central question was whether the Secretary of State, by suspending payment of DLA pursuant to the 84-day rule, violated Cameron’s human rights under Article 14 of the European Convention on Human Rights (prohibition of discrimination), taken in conjunction with Article 1 of Protocol 1 (peaceful enjoyment of possessions) and/or Article 8 (family life). This required determination of:

• Whether Cameron held a relevant ‘status’ for the purposes of Article 14;
• Whether the suspension fell within the scope/ambit of A1P1 (conceded) or Article 8;
• Whether the differential treatment was objectively and reasonably justified.

Arguments

Appellant

Mr Mathieson argued that Cameron’s status as a severely disabled child requiring lengthy in-patient hospital treatment placed him in a position discriminated against, contrary to Article 14, compared with severely disabled children not requiring such treatment. He contended that the modern reality of paediatric in-patient care is that parents continue as primary caregivers, incurring substantial additional costs, such that the ‘overlapping benefits’ rationale for the 84-day rule no longer held. He relied on evidence from two charity reports (‘Stop the DLA Takeaway’) showing 99% of carers provided the same or more care during hospitalisation and 93% incurred increased costs, and on the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities.

Respondent

The Secretary of State conceded the case fell within the scope of A1P1 but contested status under Article 14. He argued the 84-day rule was a legitimate bright-line rule designed to avoid double provision from public funds, as in-patients’ disability-related needs are met by the NHS. He pointed to the continued availability of other benefits to the family (child benefit, child tax credit, increased income support) and contended the rule should be upheld unless ‘manifestly without reasonable foundation’.

Judgment

Lord Wilson (with whom Lady Hale, Lord Clarke and Lord Reed agreed) allowed the appeal. Lord Mance delivered a concurring judgment (with whom Lord Clarke and Lord Reed also agreed).

Status

Drawing on R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63 and Clift v United Kingdom, Lord Wilson held that Cameron, as a severely disabled child in need of lengthy in-patient hospital treatment, had a status falling within the prohibited grounds under Article 14. Disability is a recognised prohibited ground (Burnip v Birmingham City Council), and discrimination between disabled persons with different needs engages Article 14 no less than discrimination between disabled and able-bodied persons.

Justification

Applying the ‘manifestly without reasonable foundation’ test from Stec v United Kingdom and Humphreys v Revenue and Customs Comrs, Lord Wilson scrutinised the justification carefully. The court accepted that bright-line rules have intrinsic merits but only within reason. Crucially, the Secretary of State adduced no evidence to counter the charities’ survey findings demonstrating that the substantial majority of parents continue to provide significant care and incur additional costs during their child’s hospitalisation. The 1991 rationale (parents merely making ‘visits’ and bringing ‘treats’) no longer reflected modern paediatric practice, where parental participation in care is the norm.

Lord Wilson also held that the Secretary of State had breached the procedural rule under 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 by never evaluating the impact of the 84-day rule on affected children. He held the international conventions could legitimately inform interpretation, following the majority in R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16.

Errors in the Upper Tribunal

Lord Wilson identified two errors: (i) the tribunal wrongly focused on the narrow attention to bodily functions rather than the broader question of whether disability-related needs continued and were met by parents; and (ii) the tribunal’s view that NHS staff would have provided the care if parents did not was irrelevant, and its assumption that only a small minority of families were affected was not supported by evidence and was contradicted by the second charity report.

Lord Mance’s concurrence

Lord Mance found the appeal more finely balanced, emphasising that courts should not be over-ready to criticise broadly-drawn social benefits legislation. However, he agreed that the evidence showed Cameron continued to have disability-related needs met by his parents throughout hospitalisation, and that the withdrawal of DLA after 84 days was not justified by any matching reduction in those needs.

Outcome

The court held the Secretary of State acted unlawfully under section 6 of the Human Rights Act 1998. Cameron was entitled to continued payment of DLA from 6 October 2010 until reinstatement. The court declined to make a formal declaration or to use section 3 of the 1998 Act to read down the regulations, recognising the Secretary of State must be given the opportunity to consider adjustments short of complete abrogation.

Implications

The decision establishes that the suspension of DLA after 84 days of hospitalisation may violate the human rights of severely disabled children whose parents continue to provide substantial care in hospital. The court was careful to note that decisions on human rights are essentially individual, and the ruling does not automatically mean every suspension under the 84-day rule will be unlawful, though it will enable many other disabled children to establish equivalent entitlement.

The judgment reinforces the principle that bright-line rules in welfare legislation, while permissible, must be supported by evidence reflecting current realities. Where the empirical foundation for a rule has eroded, the rule may no longer satisfy the justification test under Article 14, even applying the deferential ‘manifestly without reasonable foundation’ standard.

The case is significant for confirming that international conventions, including the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities, can inform the interpretation of Convention rights and the justification analysis under Article 14, following the majority in SG. It also affirms that a procedural failure to evaluate impact on children, as required by Article 3.1 UNCRC, may generate a substantive violation of the children’s best interests principle.

For practitioners, the decision matters for those advising families of disabled children, those involved in welfare benefits litigation, and those engaged in human rights challenges to social security provisions. It also serves as a reminder to government departments to maintain an evidence-based justification for differential treatment, particularly affecting vulnerable groups. The court left open the manner in which the Secretary of State might refine the criteria for DLA cessation to avoid future violations.

Verdict: Appeal allowed. The Supreme Court held that the Secretary of State’s decision of 3 November 2010 to suspend payment of DLA to Cameron Mathieson violated his rights under Article 14 ECHR taken with Article 1 of Protocol 1, and was therefore unlawful under section 6 of the Human Rights Act 1998. Cameron was entitled to continued payment of DLA from 6 October 2010 until the date payment was reinstated.

Source: Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47