MOC v SSWP  EWCA Civ 1
The WLR Daily case summaries
Court of Appeal
MOC v Secretary of State for Work and Pensions
2021 Dec 2; 2022 Jan 11
Peter Jackson, Singh, Andrews LJJ
Social security— Disability living allowance— Suspension— Vulnerable adult with severe disabilities admitted to hospital— Regulations requiring suspension of allowance after 28 days as inpatient in hospital— Whether unlawful discrimination in breach of Convention right on ground of “status”— Whether relevant status including severely disabled adult lacking capacity — Whether hospitalisation rule manifestly without reasonable foundation— Human Rights Act 1998 (c 42), Sch 1, Pt I, art 14, Pt II, art 1 — Social Security (Disability Living Allowance) Regulations 1991 (SI 1991/2890), regs 8(1)(a), 12A(1)(a)
The claimant was a vulnerable adult with severe multiple disabilities and in receipt of the highest rate of both the care component and mobility components of disability living allowance (“DLA”). He was admitted to an NHS hospital for more than a year before being discharged to a nursing home within an NHS hospital. The Secretary of State, having been notified of the hospital admission, invoked the so-called “hospitalisation rule” and suspended payment of DLA after the claimant had spent 28 days in the publicly-funded hospital pursuant to regulations 8 and 12A of the Social Security (Disability Living Allowance) Regulations 1991. The rationale for the decision was to avoid duplication of public funding for the same purpose. Payment of the mobility component was resumed after the transfer to the nursing home. The claimant’s sister was appointed to act as his deputy pursuant to the Mental Capacity Act 2005 and she appealed on his behalf to the First-tier Tribunal, which dismissed the appeal. A second appeal to the Upper Tribunal was also dismissed. The issue for the court was whether the hospitalisation rule was unlawful as being indirectly discriminatory against the claimant because of his relevant “status” contrary to article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms concerning protection from discrimination read with article 1 of the First Protocol of the Convention concerning the protection of property as scheduled to the Human Rights Act 1998.
On the claimant’s further appeal—
Held, appeal dismissed. It was important in a case under article 14 of the Convention, particularly where indirect discrimination was alleged, to know the alleged status relied upon as it affected the nature of the evidence that should be adduced by the parties. The question of capacity was not suitable as a key element in identifying a status for the purposes of article 14. The scheme of the Mental Capacity Act 2005 was designed to move away from a status-based approach to a functional approach by focusing on particular decisions at a particular time. Also, there needed to be reasonable certainty as a person’s capacity might change periodically and might do so quickly. Consequently, there were good reasons of principle and practicality as to why decision-making capacity did not provide a sound foundation for an article 14 status. There was no logical connection between the purpose of DLA and the role of a deputy appointed under the 2005 Act. Where indirect discrimination was alleged, it had to be proved as a matter of fact on relevant evidence. A claimant needed to demonstrate that a neutrally formulated measure affected a disproportionate number of members of a group of persons sharing a characteristic which is alleged to be the ground of discrimination. Such evidence was not placed before the Upper Tribunal below. In terms of the question of justification, the relevant legislation had an objective and reasonable basis so as to satisfy the principle of proportionality in circumstances where indirect discrimination was alleged. Accordingly, the hospitalisation rule was not unlawful (paras 61, 65, 66, 68, 69, 70, 73, 75, 76).
R (SC) v Secretary of State for Work and PensionsB, SC(E) applied.
Decision of the Upper Tribunal (Administrative Appeals Chamber)B;  PTSR 1337 affirmed. Amanda Weston QC, Desmond Rutledge and Ollie Persey (instructed by Merseyside Law Centre, Liverpool) for the claimant.
Joanne Clement and Alice Richardson (instructed by Treasury Solicitor) for the Secretary of State.
Scott McGlinchey, Barrister
Human Rights Act 1998 (c 42), Sch 1, Pt I, art 14, Pt II, art 1
Social Security (Disability Living Allowance) Regulations 1991 (SI 1991/2890), regs 8(1)(a), 12A(1)(a)