Keywords: Disability discrimination; Benefits; Services whilst in hospital
Withdrawing Disability Living Allowance (DLA) from a child after an in-patient stay of more than 84 days was found to be discriminatory (ECHR article 14).
Social Security (DLA) Regulations 1991 reg. 8(1) provided for the withdrawal of DLA from a child after a hospital stay of more than 84 days. The regulation was more likely to affect severely disabled children whose disability required prolonged hospital stays. Discrimination between different groups of disabled persons with differing needs engaged article 14.
The government sought to justify the difference in treatment on the grounds that the intent of the regulation was to prevent overlapping provision and that the effect was proportionate in relation to that goal. However, it was held that not all the disability-related needs of children in hospital were met by the NHS. The court accepted evidence that, since the 1980s, hospitals had increasingly encouraged parents to continue to care for their children in hospital and essentially “required” them to do so. Significant parental participation in the care of a child in hospital had become standard practice and families faced increased costs, whilst providing similar or increased amounts of care compared to the care they typically provided when the child was at home.
Therefore it was held that hospital care did not overlap with parental care for disabled children to an extent which justified the difference in treatment. Thus the suspension of DLA after 84 days had violated the child’s article 14 rights and the child was entitled to continued payment for the period of suspension.