Legal Disability Discrimination?

Disability discrimination can occur in various forms – even in ways absolutely not intended or considered.
Take for example, Disability Living Allowance (DLA). There are various types and forms of the main DLA allowance, all with their own criteria and tests. DLA can be an absolute lifeline to those who really need it. Whilst available to those who really need it following various assessments and rules – it can just as easily be withdrawn, in accordance with the Department of Work And Pension’s (DWP) rules and procedures regarding DLA. A case before the Supreme Court in 2015 raised this very issue – and found that disability discrimination was, bizarrely, partially behind a withdrawal of DLA.

The case of Mathieson v Secretary of State for Work & Pensions (2015) UKSC47 centred around a severely disabled boy born with complex medical conditions in 2007. Cameron Mathieson required a great deal of care due to the complex and varied nature of his disabilities. In 2010, Cameron was admitted into a specialist unit of the Alder Hay Hospital in Liverpool. He was to remain there until 2011. By this time, his parents had relinquished their business to provide full time care for Cameron, and to look after his siblings. During the time of his lengthy hospital stay, his parents still remained very active in his care, and were essentially still his primary caregivers. As such, they were quite dependent on DLA, and similar benefits and awards.
Cameron Mathesion had been awarded in line with Sections 71 to 76 of the Social Security Contributions And Benefits Act (1992) (The Benefits Act), the highest rate of the various disability benefits he was deemed eligible for. Of course, the many was paid to his parents, and administered by them on his behalf. Applying the rules set out in the various Acts of Parliament and DWP rules and guidelines, the DWP decided to suspend payment of the top rate of allowances in November 2010. During the rest of his stay in Alder Hay, Cameron Mathieson’s family suffered a financial shortfall or around £7,000 as a result. After Cameron was discharged, the parents appealed this.
2015 saw the case end up before a five judge hearing in the Supreme Court. Quoting from Lord Wilson’s leading verdict at paragraph 12:

The regulations in issue in this appeal are regulations 8, 10, 12A and 12B of
the Social Security (Disability Living Allowance) Regulations 1991 (SI 1991/2890)
(“the 1991 Regulations”). They were made pursuant, in particular, to section 85(1)
of the 1975 Act and to section 5(1) of the 1991 Act, following Parliament’s
affirmative resolution pursuant to section 12(1) of the later Act. Regulation 8(1)
provides that, subject to regulation 10, a person is not entitled to receive such DLA as is referable to the care component for any period during which he is maintained free of charge while undergoing medical or other treatment as an in-patient in an NHS hospital. But para 2 of regulation 10 provides that, in the case of a person aged under 16, regulation 8 shall not apply for the first 84 days of any such period; and para 1 provides that, in the case of any other person, regulation 8 shall not apply for the first 28 days of any such period. Regulations 12A and 12B make provision identical to regulations 8 and 10 in respect of receipt of such DLA as is referable to the mobility component. The regulations in force prior to 1991 in relation to payment of attendance allowance and mobility allowance had also provided for its suspension once the recipient had been in hospital for more than 28 days. But they had made no distinction between adults and children: the extension for children aged under 16 from 28 days to 84 days was therefore introduced in the 1991 Regulations.

In court, Mr and Mrs Mathieson invoked Article 14 of the Human Rights Act, a protection against discrimination. Further legal arguments were advanced to support the view that the 84 day rule had been unfairly and unjustly invoked and should be abrogated in this instance. With the DWP conceding on several legal issues, but also appealing at every step, it was found that the 84 day rule was often morally unfair.  The parent’s argument was that the 84 day rule should be applied through the framework of existing domestic and international legislation: such legislation that prohibits discrimination, and considers the best interests and rights of the family and the child.
In their concurring judgement, the Judges agree that in this particular case, the claimants legal and human rights were indeed violated by the suspension of the DLA payment. However, the legal arguments for and against are finely balanced, and both are at pains to state that it is due to the claimant’s own particular circumstances that the judgement has been made.
This serves to illustrate the power of words, and their meaning. Although never intended, following the legal reasoning set out by all sides, disability discrimination was legally found to be behind the matter in this particular case.
To further illustrate the unintentional power of words regarding discrimination another case to refer to is Moyna v Secretary of State for Work and Pensions [2003] UKHL 44.
A potential DLA claimant was not  considered eligible for DLA following g application of the ‘cooking test’ in use by at the time (used to assess whether a claimant could cook a meal by themselves, and how much assistance they would need for that household task), and other similar home assessment tests.  The narrow framework of the test, and the way the questions were set out and phrased led her to argue that the Tribunal had erred in law.
Upon making its way to the then House of Lords, consideration was given to the nature of words. After discussion the application of Brutus v Cozens (1973) regarding the meaning of words, amidst other legal arguments, the House of Lords unanimously dismissed the claimant’s appeal, and restored the verdict of the Tribunal. The Tribunal was found not to have erred in law in its application of the various tests used at the time for potential DLA claimants – including the cooking test.
Those two cases just serve to illustrate that even the laws designed to help and protect and look after those with disabilities can, quite unintentionally, have quite the opposite affect.