Department for Communities and Department for Work and Pensions v. Lorraine Cox  NICA
On 3 August 2021, the Court of Appeal in Northern Ireland gave judgment in the case of Department for Communities(DfC) and Department for Work and Pensions (DWP) v. Lorraine Cox  NICA.
This case concerns the Special Rules on Terminal Illness (SRTI) which apply to claims for Personal Independence Payment (PIP) and Universal Credit (UC). In order to qualify under the SRTI, a claimant must satisfy the definition of ‘terminally ill’ according to Article 87(4) Welfare Reform (Northern Ireland) Order 2015 (‘Welfare Reform Order’) and Regulation 2 and Schedule 9, paragraph 1 of the Universal Credit Regulations (Northern Ireland) 2016 (‘UC Regulations’). The definition requires the claimant to establish that they are suffering from a progressive illness where death in consequence of that disease can reasonably be expected within six months.
Ms. Lorraine Cox is a young mother who was diagnosed with Motor Neurone Disease in September 2018. Ms. Cox, who is unable to work due to her medical condition, applied for PIP and UC. The Department decided that her claim did not come under the SRTI. Although Ms. Cox has a confirmed diagnosis of Motor Neurone Disease, a progressive, terminal disease, her neurologist was unable to say that her death was expected within six months. She, therefore, did not satisfy the definition of ‘terminally ill’ under the Welfare Reform Order or UC Regulations.
High Court Decision
In July 2020, Law Centre NI represented Ms. Cox in a judicial review of the Department’s decision: In the matter of an application by Lorraine Cox for leave to apply for Judicial Review  NIQB 53. The High Court found in favour of Ms. Cox.
Mr Justice McAlinden decided that Article 14 of the European Convention on Human Rights (ECHR) (prohibition on discrimination) applied to Ms. Cox’s case. He further decided that the difference in treatment between Ms Cox, a person suffering from a progressive illness whose death was not reasonably expected within six months, and a person, also suffering from a progressive illness, whose death was expected within six months, but who survives for longer, could not be justified.
Mr Justice McAlinden concluded that the SRTI breach Article 14 ECHR when read with Article 8 (right to a private life) and Article 1, Protocol 1 (protection of property) ECHR. In October 2020, the High Court awarded Ms Cox £5,000 in damages for the ‘upset, distress, annoyance, inconvenience, worry and humiliation’ caused to her.
Court of Appeal Decision
The DfC and DWP appealed the High Court’s decision. Following a hearing in March 2021, in which Law Centre NI represented Ms Cox, the Court of Appeal allowed the appeal.
Lord Chief Justice Morgan, delivering the judgment of the court, accepted that Ms. Cox’s case comes within the ambit of Article 14. The Court decided, however, that the difference in treatment between Ms. Cox and a person suffering from a progressive illness whose death was reasonably expected within six months, was justified.
The Court’s reasoning on justification is summarised as follows:
- Ms Cox’s case is about whether and where to draw the line within the welfare system.
- Parliamentary consideration was given to the definition of ‘terminally ill’ in 1990 and 2010. Evidence indicated that the system operated well in practice until recently.
- There is no dispute that some special provision is necessary for those who might die as a result of a progressive illness in the course of the application process for benefits.
- Extension of the SRTI to those with a progressive illness as a consequence of which death can reasonably be expected, would change the basis of the award from needs based to determination by diagnosis.
- There is an element of clinical judgement involved in the determination of prognosis and this is an adequate and acceptable tool in the circumstances.
- One of the options open to policy makers is to have a test based wholly on clinical judgement. The court is not, however, in a position to consider factors, such as the robustness of compliance with a needs based approach, the risk of diagnostic variability and impact on budget, which would be required to alter the current policy.
Lord Chief Justice Morgan concluded:
‘The legislature has been involved in a detailed consideration of where to draw the line in this welfare benefit in 1990 and 2010. There has been continuing review of that decision since 2018. The Minister intends to submit a further proposed amendment to the Northern Ireland Assembly which will provide an opportunity for debate and reflection by the legislature. This is an area where considerable weight should be given to the views of the primary decision maker. These choices are for the political process and not for the courts’.
Speaking after the Court of Appeal delivered its decision, Law Centre NI’s Head of Social Security, Owen McCloskey, said:
‘Lorraine has been resolute in her determination to ensure that no other person with a terminal illness has to endure the same experience as she did. She has campaigned tirelessly for a change to the rules on terminal illness and her legal challenge has been so important in highlighting the need for reform. Lorraine and Law Centre NI welcome the proposed change in legislation announced by the Minister recently and we would now like to see this legislation passed as quickly as possible’.
For further information on the Court of Appeal’s decision, see Law Centre NI’s press statement.
For a copy of the judgment approved by the Court of Appeal for handing down (subject to editorial corrections), click here.
Proposal for legislative change
The Court of Appeal’s judgment comes shortly after Communities Minister, Deirdre Hargey, announced that she will extend the terminal illness provision in social security benefits from six months to 12 months.
This move was echoed by the UK Government in July 2021 (see Justin Tomlinson MP statement to Parliament on 8 July 2021 and the Department for Work and Pension’s Research and analysis findings from the evaluation of the Special Rules for Terminal Illness process, Published 20 July 2021).
Notably, the Scottish Government’s approach goes further by adopting a definition of terminal illness based on the clinical judgement of an appropriate healthcare professional (see Guidance for doctors and nurses completing benefits assessment under special rules in Scotland (BASRiS) Form for Terminal Illness v1.0 Advice from the Chief Medical Officer, The Scottish Government, July 2021).
Law Centre NI will continue to press for the legislative changes proposed by the Communities Minister and, once passed, will monitor how the changes work in practice so that terminally ill claimants get the support they need when they need it most.