Entering the No-Go Zone – Social Security and Discrimination in the UK Supreme Court
It is rare for a human rights challenge in the social security context to succeed in the English courts. In large part this is due to the respect (some might say deference) shown by the courts to the state’s policy choices in this highly political area.
However in Mathieson v Secretary of State for Work and Pensions the UK Supreme Court allowed an appeal against the rule which suspends payments of a key disability benefit to disabled children who have been inpatients in a National Health Service hospital for more than 84 days. The appeal succeeded on the basis that the rule discriminated against such children contrary to Article 14 of the European Convention on Human Rights.
Article 14 ECHR is not a free-standing prohibition on discrimination but requires the issue to be within the ‘scope’ of another Convention right. The child appellant (Cameron Mathieson) and his family were assisted by the judgments of the European Court of Human Rights (ECtHR) which establish that social security benefits can be ‘possessions’ for the purposes of Article 1 of the First Protocol to the Convention. As such, although states parties are not required to establish any particular social security scheme, those they do establish must be administered without discrimination.
However those who wish to challenge discriminatory rules in benefits systems across Europe face a formidable hurdle. Although it may well be easy to establish differential treatment, it will typically be equally straightforward for the state to establish justification for that treatment – thus avoiding a breach of Article 14. The test for justification in these cases, as established by the Grand Chambers of the ECtHR in Stec and adopted by the UK Supreme Court in Humphreys, is whether the discriminatory impact is ‘manifestly without reasonable foundation’. This is undoubtedly a low threshold for the state to surmount.
However on this occasion the Supreme Court found unanimously that the state’s justification for the rule failed to get over even this low bar. The justification advanced by the state throughout the appeal in Mathieson was that all disabled children’s disability-related needs are met free of charge by the NHS while they are in hospital. As such the rule was based on the principle that there should be no ‘overlapping benefits’ or double counting in the system.
This argument succeeded in the Tribunals and the Court of Appeal. However it found no favour with the Supreme Court. On the contrary, Lord Wilson gave significant weight to evidence advanced by two national charities (Contact a Family and The Children’s Trust) which showed that in the vast majority of cases the level of care being provided by families stayed the same or increased when their disabled child went into hospital.
The Supreme Court’s judgment in Mathieson would seem to have two important implications in the wider human rights context:
- The Justices took a very liberal approach to the vexed question of what constitutes a ‘status’ for the purpose of Article 14 ECHR. All five concluded being a sick disabled child in hospital, as opposed to a disabled child cared for at home, gave Cameron a relevant ‘status’.
- Unincorporated international human rights conventions played a significant role in the judgment. Lord Wilson found that the Secretary of State was in breach of his international law obligation to treat disabled children’s best interests as a primary consideration – this obligation being imposed by Article 3(1) of the UN Convention on the Rights of the Child and Article 7(2) of the UN Convention on the Rights of Persons with Disabilities. This then assisted the court in finding a breach of Article 14 ECHR, because of the requirement to read the ECHR in harmony with the principles of international law.
So in Mathieson the Supreme Court entered into territory which may have been seen traditionally as off limits for the English courts. Whether this demonstrates a more robust attitude generally or simply reflected the flawed justification for this particular rule will be seen from future cases.
The Mathieson family have given their approval for this post to be written. A longer version of this post can be found here.