MH v Secretary of State for Work and Pensions (PIP): [2017] UKUT 424 (AAC) ; [2018] AACR 15
Upper Tribunal Administrative Appeals Chamber decision by Judge Lane on 24 October 2017.
Read the full decision in
Judicial Summary
Reported as [2018] AACR 15
Human Rights – Article 14 ECHR – whether suspension of the mobility component for long-term in-patients of hospitals or similar institutions constitutes unlawful discrimination
The claimant was a resident in-patient at a Neurodisability Centre, a publicly funded institution similar to a hospital, where he required round-the-clock care. Thorough an appointee he successfully claimed Personal Independent Payment (PIP). However, payment of benefit was subsequently suspended on the basis that he was an in-patient under regulation 29 of the Social Security (Personal Independent Payment) Regulation 2013. The First-tier Tribunal upheld that decision and the claimant appealed to the Upper Tribunal. The appeal concerned a single issue, namely whether section 86 of the Welfare Reform Act 2012 and regulation 29 discriminated unjustifiably against a person who was an in-patient in an institution similar to a hospital and whose care was maintained out of public funds by providing that the mobility component of PIP was not payable to such a person. The claimant’s representatives argued that the claimant was being treated differently than disabled people living at home or in care homes, who would retain payment of the mobility component (if awarded) and that the regulations were in breach of Article 14 of the European Convention on Human Rights (ECHR), as incorporated into UK law by the Human Rights Act 1998, and the UK’s obligations under the UN Convention on the Rights of Persons with Disabilities (UNCRPD). The Secretary of State argued that payment of the mobility component to in-patients would amount to double provision as assistance was already provided by the NHS in such cases and that the suspension of benefit was justified to target scarce resources.
Held, dismissing the appeal, that:
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there were insufficient similarities between in-patients and disabled claimants living at home to require justification under ECHR in respect of the different treatment. Claimants who can live at home remain in their community and are likely to have a range of mobility needs in that community similar to those they had before becoming disabled, and similar to those of non-disabled people living at home. These require the claimant to venture outdoors, or have someone run their errands for them (paragraphs 27 to 28);
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in-patients and care home residents are also not true comparators. In-patients as a class are substantially less likely to need to mobilise beyond the perimeter of the establishment in comparison to those living in care homes. It was incorrect to say that the mobility needs of in-patients was as great, if not greater, than those at home or in a care home (paragraphs 29 to 31 and 42);
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if in-patients and care home residents were comparable groups, there was a plain overlap between the scope of the mobility component and the assistance provided to in-patients by the NHS and NHS continuing care packages. On that basis, there was double provision. The elimination of double provision had long been the policy of successive Governments in relation to disability benefits and it was a legitimate aim (paragraphs 53 to 54);
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the Government’s economic policy to control escalating welfare spending and hence maintain the economic wellbeing of the country was a legitimate aim under the ECHR and it was not irrational, unreasonable or disproportionate to choose to target funds in this way (paragraph 61);
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the UNCRPD, unlike ECHR, was not incorporated into domestic law and the tribunal did not have jurisdiction over the Convention (paragraph 70).
Updates to this page
Last updated 4 December 2018 + show all updates
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Reported as [2018] AACR 15
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First published.