- Ministry of Justice, HM Courts & Tribunals Service, and Upper Tribunal (Administrative Appeals Chamber)
- Last updated:
- 23 March 2017, see all updates
- Decision date:
- 8 July 2016
- DLA, AA: personal care and Human rights law
- DLA, AA: personal care - other and Human rights law - article 14 (non-discrimination)
- Markus, K
Upper Tribunal Administrative Appeals Chamber decision by Judge Markus on 8 July 2016.
Read the full decision in  AACR 2ws.
Human rights – suspension of DLA care component in residential care home not discrimination – Article 14
Disability living allowance – personal care – quality of care provision not relevant under regulation 9
The claimant, who had autism and learning disabilities, had lived for some two years in a residential care home partly funded by the NHS. The Secretary of State decided that the care component of disability living allowance (DLA) was not payable for this period under section 72(8) of the Social Security Contributions and Benefits Act 1992 and regulation 9(1) of the Social Security (Disability Living Allowance) Regulations 1991. The First-tier Tribunal upheld that decision, deciding that the claimant had been resident in a care home where he had received accommodation, board and personal care paid for by public funds under the Mental Health Act 1983. The claimant appealed to the Upper Tribunal where it was argued on his behalf, first that the inadequacy of the care services provided by the home meant that regulation 9 did not apply, either because not all three “qualifying services” were provided to the claimant or because the personal care he received was too poor to satisfy section 72(9), and secondly that the regulation was discriminatory contrary to Article 14 of the European Convention on Human Rights: Mathieson v Secretary of State for Work and Pensions  UKSC 47;  1 WLR 3250;  AACR 19. Held, dismissing the appeal, that:
the statutory requirement under regulation 9 was met for any period where the claimant was resident in a care home and the costs of any qualifying services were publicly funded, and it was not necessary under the legislation for all three qualifying services to be provided to him (paragraph 14);
the statutory definition of “care home” in section 72(9) required the provision of accommodation and personal care (or nursing care) but was silent as to the quality of the personal care provided. It was concerned with the nature or function of the establishment not the services actually provided to any particular individual. Regulation 9 applied if the claimant was in an establishment which had the characteristics of a care home (paragraphs 15 to 18);
(obiter) it was the statutory responsibility of the Care Quality Commission (CQC) to assess the quality of care in residential care homes and to correct inadequate provision. A care home could not be registered unless the CQC was satisfied that care was being provided in accordance with the statutory framework, including meeting the individual needs of the residents. Where the CQC had judged that those standards were met, there was no proper basis for the DWP or tribunals to intervene, as the CQC was the independent and expert body set up to make such judgments (paragraphs 18 to 21);
Regulation 9 was a proportionate means of avoiding duplication of state provision to meet the care needs of disabled people: Mathieson distinguished. Where the system operated as it should, the care needs of disabled people in residential homes would be met. The system recognised that there will be failings and had processes in place to remedy them. As the state was paying for care in the residential home, it was entitled to adopt a position whereby deficiencies were remedied, rather than paying extra to substitute for inadequate care. In the light of the above, regulation 9 was compatible with Article 14 and the claimant did not suffer discrimination contrary to Article 14 (paragraphs 44 to 45).
Updated: 23 March 2017
Decision date: 8 July 2016
- Decision selected for reporting as  AACR 2
- First published.