CM v The Secretary of State for Work And Pensions

1. This is a renewed application for permission to appeal by Mr CM, acting according to the title of the proceedings for his deceased son. As far as I am aware, no objection has been taken to the continuation of these proceedings on the basis of the death of his son, and in any event his father has a distinct interest in these proceedings, since in the first place the decision of the respondent Secretary of State applying existing regulations had a financial impact. It caused a loss to the family of as I understand it some £7,000. And secondly, there is a question of principle, which is the real reason why I propose to give permission to appeal.

2. CM’s son was very severely disabled and ill. As a result of that, the family received disability living allowance. Under the regulations disability living allowance ceased to be payable if a child has been in hospital for more than 84 days. The basis put forward by the Secretary of State for that rule is that it is designed to avoid double provision by the state, the double provision being both disability living allowance and the care that is received by a patient, child, who is in hospital. 84 days is obviously quite a significant time for a child to be in hospital. By inference, the child must have been severely ill or injured to be in hospital for that long, but in this case the disability living allowance was payable for reasons which preceded the admission of the child into hospital because he had a number of severe conditions. Indeed I take it that it was those conditions which together led ultimately to his early death.

3. It is said on behalf of the appellant that this rule is in conflict with Article 8 and Article 14 read with Article 8 because it has no sensible justification because, in practice, families of children with such a conglomeration of disabling conditions continue to look after their child, continue to incur expense. Indeed their expenses may go up because of the cost of travel to and from hospital. Hence the challenge to the regulation. The decision of the Upper Tribunal was that the regulation was lawful, and I have to say it is a sensible and well-considered decision. But I take the view that there is something sufficient in the argument for the appellant, and moreover it seems to me the issue is an important issue. I hope I am not overaffected by sympathy with the position of the family and of the suffering of the deceased son. But for those reasons it seems to me I should give permission to appeal.

4. I add that I am influenced by new evidence in the form of statistics put forward on behalf of the appellant which seem to me to significantly strengthen the appellant’s case, and in those circumstances I direct that the appellant should issue an application before the Court of Appeal for that new evidence, which was not available before the Upper Tribunal, to be admitted, to be heard immediately before the hearing of the appeal and by the same constitution.

5. The appeal is anticipated to last for four hours. It should come before a tribunal of three Lords Justices, at least one of whom should have Administrative Court experience. Order : Application granted