Northern Ireland Court of Appeal: Morgan LCJ, Treacy and McClosky LJJ, [2021] NICA 46, 3 August 2021

The applicant, who had been diagnosed with motor neurone disease, challenged a refusal to grant her enhanced rate Personal Independent Payments and assessment-free Universal Credit (“UC”) on the basis that she was terminally ill, in each case because she did not fall within the relevant legislative definitions of “suffering from a progressive disease where death in consequence of that disease can reasonably be expected within 6 months” (emphasis added). The prognosis in the applicant’s case was that her condition was terminal but the trajectory uncertain. Northern Ireland’s High Court ruled, per McAlinden J, that the exclusion of the claimant from the benefits she sought breached her Article 14 rights read with Article 8 and A1P1 and awarded her damages of £5 000 in respect of the upset, distress, annoyance, inconvenience, worry and humiliation caused by the breach. The Court of Appeal allowed the Department’s appeal, applying the decision of the Supreme Court in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, [2021] 3 WLR 428 and ruling that the discrimination was justified.

Northern Ireland’s High Court had accepted ([2021] NI 435 [2020] NIQB 53) that the distinction drawn between individuals with diagnoses of terminal illness who were and were not expected to live more than six months, that the discrimination in issue fell within the scope of Article 8 and A1P1, that the applicant’s life expectancy of more than six months amounted to a “status” for Article 14 purposes, that persons in her group were analogously situated with persons having a life expectancy of less than 6 months and that the discrimination was unjustified. His judgment was appealed on the basis that he had erred in his approach to status, the analogous group and justification.

At §48 the Court (per Morgan LCJ, with whom Treacy and McClosky LJJ agreed) referred to the decision of the Supreme Court in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, [2021] 3 WLR 428 (see associated blog), acknowledging that this had not been available to the judge below. At §50 he set out the four stage approach adopted by the Court in SC at §37 and at §51 he cited Lord Reed’s observations on status, concluding at §52 that the trial judge had not erred in his approach to this issue. At §56 the Court agreed that, because of the uncertainties surrounding life expectancy in cases of terminal illness and the fact that many who were regarded as terminally ill for the purposes of PIP and UC in fact survived well in excess of 6 months, “the group of persons suffering from a progressive illness where there is a reasonable expectation of death as a result of the illness within a period of years is in an analogous position to the test group”. The Court of Appeal dismissed the cross-appeal, ruling at §56 that “[t]he real issue” was “justification for the difference of treatment between those groups.”

Having observed at §60 that the definition of terminal illness had been introduced into legislation in 1990 and that its purpose was to provide exemption from the initial month qualifying condition for PIPs because individuals were dying before the entitlement had been determined, Morgan LCJ noted that a 2010 review “indicated general satisfaction with this approach although the MND Association had argued for an extended period of 12 months”. Nor was there any “significant dispute that the objective identified in 1990 remains appropriate” (§61). At §62, the Court summarised the respondent’s position as being that:

a people close to death as a result of a progressive illness are likely to satisfy the conditions for the award of these benefits;

b such people should have a fast track means of accessing those benefits;

c it is necessary to set a threshold for the identification of that group in order to protect public funds; and

d the definition of terminal illness is sufficiently clear and specific to enable medical practitioners to identify that threshold”.

The Court accepted at §63 that the definition of terminal illness “can be said to be clear and specific” and that it “ensures that a group of people who are closest to death are given immediate access to the benefits. That is the legitimate aim”. The Court further accepted that “the definition safeguards public funds” and had generally “operated well in practice”. At §64 it referred to the statement of the trial judge at §102 that “what had to be justified was not the measure in issue but the difference in treatment between one person or group and another”, comparing the claimant with a person who had satisfied the SRTI test but lived for a period in excess of six months. At §66 Morgan LCJ stated that he derived “[c]onsiderable assistance” from SC §125 in which Lord Reed distinguished between cases involving “suspect grounds” and others, going on at §66 to cite Lord Reed’s observations at §§161-162. Having stated at §67 that the case concerned “whether or where to draw the line within the welfare system” and referred at §68 to the “parliamentary consideration in 1990 and 2010” Morgan LCJ at §69 referred to the consensus that “some special provision was necessary in relation to those who might die as a result of a progressive illness in the course of going through the application process” and that “The line has been drawn at a point which seeks to identify that group of people suffering from a progressive illness where the need is highly likely to have arisen. He stated at §70 that the extension of the definition to include people with progressive illnesses which can reasonably be expected to be terminal “would change the basis for the award of the benefit” so that it would “no longer be needs based” but would “be determined by the diagnosis of a particular condition independently of need”. At §71 he accepted that clinical judgment (as to life expectancy) was “an adequate and acceptable tool” and at §74 he referred to the “substantial weight … generally accorded to the primary decision maker” in the area of welfare benefits.

[74] … We do not accept that this is a case in which the difference of treatment is based on a suspect ground such as sex or religion. We accept that a relatively strict approach has been taken in cases concerned with persons with disabilities in order to foster their full participation and integration in society. That objective is honoured in this case by the application process based on need. This is not a case where the Applicant has been excluded from the benefit.

[75] 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.

Applicants: Karen Quinlivan QC and Malachy McGowan (instructed by the Law Centre (NI))

Tony McGleenan QC and Ivor  McAteer instructed by Crown Solicitor