The Department for Communities v Cox: CANI 3 Aug 2021

PIP Arrangements not Discriminatory

The claimant suffered a life limiting condition, but not so that her death could be reasonably expected within six months. She complained that the resulting unavailability of PIP and UC without assessment was discriminatory as opposed to those who were predicted not so to survive, but did in fact do so. The judge had found that this was a status, and that the difference in treatment was not justified and that the relevant provisions could not be read and given effect in a way which was compatible with the Convention rights and awarded the respondent pounds 5000 by way of just satisfaction. The Department appealed, contending that the trial judge erred in respect of his assessment of status, the analogous group and justification.
Held: The appeal succeeded. Within Northern Ireland, there was a recommendation for the abandonment of the six month rule. However: ‘ In this area of welfare benefits substantial weight is generally accorded to the primary decision maker. 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.’
‘Where, however, the prognosis is more uncertain the conclusion may be that death may reasonably be expected over the next 3-12 months. Applying a grammatical construction of the qualifying condition it is clear that death can be reasonably expected within the statutory timeframe. Although death may not be probable within the 6 month period, entitlement to the benefit would, therefore, be established. The context of the provision envisages a limited period of entitlement arising from a SRTI award. That is relevant to the continuation of the payment of the benefit. In practice that review takes place after 3 years. The arrangements for review of the payment of the benefit provide an obvious protection for the public purse but do not call into question the entitlement to avail of the special rules.’
(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.


Morgan LCJ, Treacy LJ and Mccloskey LJ


[2021] NICA 45




European Convention on Human Rights 14, Northern Ireland Act 1998 87, Social Security Act 1990 1, Social Security Act 1975 35


Northern Ireland


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The Supreme Court was asked to decide whether the ‘two child limit’, a provision of primary legislation which restricts payment of amounts of subsistence benefit for children to the first two children in a family, is incompatible with the . .
CitedStec and Others v United Kingdom ECHR 12-Apr-2006
(Grand Chamber) The claimants said that differences between the sexes in the payment of reduced earning allowances and retirement allowances were sex discrimination.
Held: The differences were not infringing sex discrimination. The differences . .
CitedCarson and Others v The United Kingdom ECHR 16-Mar-2010
(Grand Chamber) The court ruled admissible claims against the United Kingdom by 13 persons entitled to British State pensions for violation of article 14 of the Convention in combination with article 1 of the First Protocol. All the claimants had . .
CitedDelve and Another, Regina (on The Application of) v The Secretary of State for Work and Pensions CA 15-Sep-2020
Appellants challenged the changes brought about to women’s pensions by the Pensions Acts 1995 and 2007 raising the ages from which pensions would be available. . .
CitedThe Secretary of State for The Home Department v R (on The Application of) Joint Council for The Welfare of Immigrants CA 21-Apr-2020
. .
Lists of cited by and citing cases may be incomplete.

Benefits, Human Rights

Updated: 15 April 2022; Ref: scu.675919