Can impaired decision-making capacity constitute a ‘status’ for purposes of purposes of the law relating to discrimination? That was the question posed before the Upper Tribunal in MOC (by MG) v SSWP  UKUT 0134 (AAC) in the context of Disability Living Allowance (‘DLA’). The claimant had learning disabilities. He had Down’s Syndrome. He was also deaf and blind. He also had a number of significant physical disabilities. His sister was his appointee for benefit purposes, and also his welfare deputy.
The claimant had been in receipt of DLA at the highest rate of each component since 6 December 1993. He was admitted to hospital in 2016, and remained in NHS hospitals for somewhat over a year. When he reported the hospital admissions to the DWP, the DWP took a decision that his DLA was not payable after the 28th day of his inpatient admission, pursuant to the operation of the relevant provisions of the Social Security (Disability Living Allowance) Regulations 1991/2890. The equivalent regulations had been disapplied in relation to those children following the decision of the Supreme Court in Mathieson v SSWP  UKSC 47 that they breached the rights of such children under Article 14 and Article 1 and Article 1 of Protocol 1 to the ECHR and fell to be disapplied applying s.3 HRA 1998. The claimant sought by his sister to contend that the same logic applied to adults.
The Secretary of State conceded that in light of Mathieson the claimant had the status of a severely disabled adult in need of lengthy inpatient hospital treatment. It was submitted that there were two other statuses to which he might properly lay claim, namely:
(a) an incapacitous severely disabled adult in need of lengthy in-patient hospital treatment; and/or
(b) a severely disabled adult who lacks capacity to make decisions about care and medical treatment in need of lengthy in-patient treatment.
The Secretary of State resisted both alternative forms of status “essentially on the ground that because issues of capacity are issue-specific and because capacity may come and go, they lack a sufficient quality of durability to constitute a status and that a court should be slow to find a status based on lack of capacity because of the administrative difficulties to which it would give rise.”
Upper Tribunal Judge Ward accepted that:
7. […] there is no easy proxy for determining whether or not a person is lacking in capacity, whether for decisions about care and medical treatment or otherwise. In the present case, a Deputy has been appointed, with functions which make the question relatively straightforward to answer. Others may have given a lasting power of attorney in respect of personal welfare decisions, in which case the Office of the Public Guardian should have been informed if it is suspected that a person is losing capacity. In yet further cases, no such formal arrangements will have been put in place and whether a person has capacity for a particular decision or not will have to be assessed on the spot in accordance with the provisions of the Mental Capacity Act. Whilst it may be the case that assessments of the capacity of a person who is in hospital but who does not have a Deputy nor has given a power of attorney for personal welfare may have to be carried out and should be recorded, not only would it be a considerable burden on the DWP to obtain that record and on NHS staff to provide it, but more fundamentally, if lack of capacity is the trigger for finding that there has been a breach of a claimant’s human rights, a breach which is not present when the person does have capacity, there is a risk of people moving in and out of being the subject of a breach of the ECHR on a virtually daily basis.
Whilst Upper Tribunal Judge Ward considered that the Secretary of State was right to accept that a fair degree of ‘refining down’ of the group considered to have a status was permissible:
10. Nonetheless, while mindful of that approach, I prefer Ms Richardson’s submissions [on behalf of the Secretary of State] on the unsuitability of capacity as a key element in identifying a “status”. I derive no assistance from Ms Bartlam’s reliance on the decision of the European Court of Human Rights in Siddarbras v Lithuania (Case 55480/00). While it illustrates that a status may be acquired based on past events (past membership of the KGB), it does not help with whether a status can be defined by reference to anything as potentially evanescent as a loss of capacity (as in some cases it will be, even if in others it is anything but).
Nonetheless, because the claimant had been conceded to have one status in any event UTJ Ward went on to consider the question of whether, if there was any differential treatment, it was justified. He found that it was, essentially on the basis that in both principle and practice, in-patient admission to hospital meant that all relevant needs of a disabled person to be met. In this, he noted that he did not consider it made a material difference that a person was acting as Deputy:
22. […] Whilst anyone acting as Deputy, or indeed under a welfare lasting power of attorney, would need to have an understanding of the patient’s needs and wishes, I agree with Ms Richardson it does not follow that it has to be acquired from a hands-on caring role. The reports submitted to the Court of Protection by the appointee are not in evidence and there is no evidence permitting me to conclude that acting as Deputy carried with it responsibilities to provide care to the extent claimed. The responsibilities of the Deputy are cast in terms of taking decisions, rather than the direct provision of care.
23. There is some limited evidence suggesting that in this particular case, the appointee was required to become involved in certain respects. In a statement appended to her appeal form to the FtT the appointee explains that:
“Deputy/ carers required all times of day/night to be included with Multi Disciplinary Team in all decisions affecting [the claimant]. Medical staff require attendance of Deputy/carers to advise/allow them to carry out all procedures. To attend NUMEROUS meetings to discuss treatment, sign official forms and Medical/Social Services re care or treatment or transfer of [the claimant].” (emphasis in original).
It is clear that those requirements were principally those which flowed from the function of the Deputy to take decisions on the claimant’s behalf, which would be far more limited than a requirement to assist in the actual provision of care. Her oral evidence to the FtT as recorded in the FtT’s Record of Proceedings in my judgment showed her involvement in consenting to procedures which the claimant had to undergo, plus the sort of involvement based on personal knowledge of the patient which up to a point the relatives of any person in hospital would have, but which will be particularly important in the case of a patient with learning disabilities.
Having reached this conclusion, UTJ Ward at paragraph 32 noted that:
32. Returning to the question of a comparator, the position is different from that of a severely disabled child in need of lengthy inpatient hospital treatment, because of what is shown by the evidence about differing patterns of care for adults and children. That is unaffected by Ms Bartlam’s efforts to persuade me, by considering the respective legal frameworks applicable to children and vulnerable adults, that they are in a similar position, which I do not find of assistance in the present context. Nor am I persuaded by her argument based on the particular position of 16 and 17 year olds with regard to the giving of consent. The position is different from a severely disabled person who is not in receipt of lengthy hospital inpatient treatment because the person who is not in hospital is not receiving publicly funded care via the NHS, while the person in hospital is. As regards the complaint of Thlimmenos discrimination by failing to treat the claimant differently from a capacitous severely disabled adult in need of lengthy in-patient treatment, this would depend on showing that the consequences of the claimant’s lack of capacity were such that their situations were relevantly different. However, that has failed on the evidence.
UTJ Ward noted that both parties had accepted that it was appropriate for him to have regard to the UN Convention on the Rights of Persons with Disabilities, but found that specific consideration had been given to the needs of “incapacitous severely disabled individuals,” in particular in the form of the DWP’s Equality Impact Assessment on retention of the hospitalisation rule, which noted that:
29.2.3 We have considered whether severely mentally impaired claimants who are unable to act for themselves and need help from support workers should be exempt from the policy. However, in addition to the double funding issue, this would be extremely difficult to administer and would introduce different treatment by disability type.
29.2.4 More broadly it is arguably unfair to discriminate on specific mental health grounds and the ability to effectively identify and award such cases would be complex. In conclusion, we have no evidence to suggest that the NHS is not able to provide the right types of services for patients and no grounds therefore to continue to award care and mobility components.
UTJ Ward therefore found that the Secretary of State was entitled to rely upon the relevant regulations to deny the claimant DLA after the 28th day of his inpatient admission.
Whilst one can admire the ingenuity of the argument advanced on behalf of the claimant, it was, in reality a claim – at least in relation to the claim based upon a status of incapacity – that was both doomed to fail on the facts and should have been doomed to fail in principle. Although not stated in terms by UTJ Ward, the very point of the concept of mental capacity as applied in England & Wales is that it is meant to be functional and decision-specific, and to be decisively different to a status based approach. One could ask as to the extent to which this always applies in practice (does, for instance, a diagnosis of severe and enduring anorexia lead almost inevitably to a conclusion that the person lacks capacity to make decisions about their nutrition?) but had the Upper Tribunal acceded to the claimant’s argument, it could only have done so on the basis that (a) there was something ‘stable’ in the concept of mental incapacity; and (b) it was, therefore legitimate to find that lacking mental capacity was a status in and of itself. This would have been a distinctly retrograde step. Indeed, as UTJ Ward (and, in fairness, the Secretary of State recognised), the real issue was not so much who might be making decisions for the claimant but how the claimant’s needs were to be met. The former might be a question for the MCA; as Lady Hale made clear in N v ACCG  UKSC 22, the latter is not logically related to the MCA at all.