25.90Matheison v Secretary of State for Work and Pensions [2015] UKSC 47, [2015] 1 WLR 3250
It was incompatible with Articles 8 and 14 ECHR, construed harmoniously with the UN Convention on the Rights of Persons with Disabilities, not to provide Disability Living Allowance to children after 84 days of hospital in-patient treatment
Facts: the claimant was a disabled child whose DLA ceased, pursuant to the relevant regulations, after he had been in hospital for over 84 days, although his parents continued to visit him and care for him in hospital, at considerable expense.
Judgment: the Supreme Court (Hale, Mance, Clarke, Wilson and Reed JJSC) held that the regulations were unlawful in breach of Articles 8 and 14 ECHR, construed harmoniously with the UNCRPD (and the UNCRC):
42. In ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166 , Baroness Hale JSC at para 21 quoted with approval the observation of the Grand Chamber of the Court of Human Rights in Neulinger v Switzerland (2010) 54 EHRR 1087 , para 131, that ‘the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law.’ The Court of Appeal concluded, however, that the circumstances of the present case left no room for either of the international Conventions to give a steer to the proper interpretation of Cameron’s rights. Consistently with that conclusion, the Secretary of State proceeds to submit that it is in principle illegitimate to have regard to the conventions and in this regard he relies on the recent decision of this court in the JS case [2015] 1 WLR 1449…
43. It is clear that in the JS case the Secretary of State submitted that, while an international covenant might inform interpretation of a substantive right conferred by the Convention, it had no role in the interpretation of the parasitic right conferred by Article 14 and thus, specifically, no role in any inquiry into justification for any difference of treatment in the enjoyment of the substantive rights. But his submission was not upheld. While Lord Reed JSC did not expressly rule on it, it was rejected by Lord Carnwath JSC (paras 113–119), by Lord Hughes JSC (paras 142–144), by Baroness Hale DPSC (paras 211–218) and by Lord Kerr of Tonaghmore JSC: paras 258–262. Lord Carnwath JSC, for example, pointed out at paras 117–119 that the Secretary of State’s submission ran counter to observations in the Court of Appeal in the Burnip case [2013] PTSR 117, cited at para 23 above, and indeed to the decision of the Grand Chamber in X v Austria (2013) 57 EHRR 405. The decision of the majority in the JS case [2015] 1 WLR 1449 was not that international Conventions were irrelevant to the interpretation of Article 14 but that the UN Convention on the Rights of the Child was irrelevant to the justification of a difference of treatment visited on women rather than directly on children: para 89 (Lord Reed JSC), paras 129–131 (Lord Carnwath JSC) and para 146 (Lord Hughes JSC).
44 The noun adopted by the Grand Chamber in the Neulinger case 54 EHRR 1087, cited above, is ‘harmony’. A conclusion, reached without reference to international Conventions, that the Secretary of State has failed to establish justification for the difference in his treatment of those severely disabled children who are required to remain in hospital for a lengthy period would harmonise with a conclusion that his different treatment of them violates their rights under two international Conventions.