The Supreme Court has made a landmark decision in ruling that Disability Living Allowance (DLA) regulations contravene the human rights of a severely disabled child.
Cameron Mathieson was diagnosed with cystic fibrosis and muscular dystrophy soon after his birth. In July 2010, he was admitted to Alder Hey Children’s Hospital in Liverpool with a chronic bowel obstruction and remained there until August the following year.
Sadly, Cameron died in October 2012.
The 84-day Rule
DLA payments are withdrawn after a hospital stay of over 84 days and Cameron’s payments were taken away after his 84th day in Alder Hey. This caused his family significant financial hardship and prevented his parents from providing essential care for Cameron and support to hospital staff.
Caring for a seriously ill child can be a huge burden for some families. DLA payments allowed Cameron and his family to fund arrangements with the hospital, whereby one of his parents would remain in hospital at all times as Cameron’s primary caregiver and provider of essential advice to hospital staff about Cameron’s specific care needs.
Like many severely disabled children, it was Cameron’s parents who understood his specific needs best and who could interpret and articulate them to hospital staff. They argued that the withdrawal of DLA payments, particularly when they were providing the same level of care in the hospital as they provided at home, was a disproportionate infringement of Cameron’s human rights.
A Violation of Human Rights
The Supreme Court found that the DLA regulations on withdrawing payments after 84 days contravened Cameron’s human rights.
They said that DLA was a “possession” for the purposes of Article 1 of Protocol 1 of the European Convention on Human Rights, and went on to find that the regulations breached Article 14 of the European Convention – essentially on the basis that the Secretary of State for Work and Pensions had not acted proportionately in implementing the regulations, and had not sought to achieve a legitimate aim.
It is too early to know the likely effects of this judgment, though I hope that other families and carers of severely disabled children will be able to receive DLA to maintain essential care services for them whether they are at home or in hospital.
It is encouraging to see the Supreme Court take such a clear and practical approach, not only to human rights but also to the care needs of the severely disabled and the obligations and dedication of the people who care for them.
The judgement should be a reminder to us all – certainly to the Secretary of State – that, at a time when human rights and proposed benefit cuts are in the spotlight, a balance needs to be struck between the need to best use limited resources in relation to the provision of care and support and the need to act fairly and proportionately when interpreting the law and human rights.
Richard Copson is a Principal Lawyer in Slater and Gordon’s Court of Protection team and specialises in disability rights.
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