Northern Ireland news

Rules governing fast-tracking of disability benefits to the terminally ill 'justified' Court of Appeal rules

Lorraine Cox. Picture by Pacemaker Press

Rules governing the fast-tracking of disability benefits to the terminally ill in Northern Ireland are justified, the Court of Appeal ruled today.

Senior judges reversed a finding that a woman with Motor Neurone Disease suffered discrimination compared to others with life-limiting conditions who get immediate access to enhanced payments.

Lord Chief Justice Sir Declan Morgan also indicated that the legislature rather than the judiciary should determine where to draw the line on the benefits.

He said: "These choices are for the political process and not for the courts."

In a landmark verdict last year the High Court had found that Lorraine Cox was unlawfully treated differently because of uncertainty over how long she will survive.

The 41-year-old, from Derrylin, Co Fermanagh, was awarded £5,000 damages. Stormont's Department for Communities, and the Secretary of State for Work and Pensions appealed the ruling that her treatment was unjustified.

In 2018 Ms Cox was formally diagnosed with Motor Neurone Disease (MND), a progressive neurological illness for which there is no effective treatment or cure.

She was given an estimated life expectancy of between two to five years.

Having retired on medical grounds, she applied for Personal Independent Payments (PIP) to help with the impact of the disease.

Under special rules claimants with a terminal illness are entitled to an enhanced rate without having to undergo assessment.

Crucially, however, they must demonstrate that death is reasonably expected within six months.

Ms Cox was initially awarded the standard rate. It took more than a year of tribunals, appeals and face-to-face assessments before she qualified for the increased payments.

She also had to spend months searching for work as part of attempts to secure Universal Credit (UC).

Ms Cox's legal team argued the rules breached her right to freedom from discrimination under Article 14 of the European Convention on Human Rights.

Although her illness is undoubtedly fatal, a definitive prognosis is impossible due to its "unpredictable trajectory", the court heard.

Meanwhile, those suffering from other terminal conditions with greater certainty about when they will die have their benefit claims fast-tracked.

A High Court judge held there was nothing to justify or explain the difference in treatment between terminally ill people expected to die

within six months but survive longer, and those with a similar diagnosis who are not expected to die within six months.

Appealing that decision, counsel for the two Departments, contended that the analogous situation was flawed and created an impossible standard.

Delivering judgment, Sir Declan said the definition of terminal illness has the legitimate aim of ensuring those closest to death get immediate access to the benefits.

Extending the special rules on terminal illness to those diagnosed with a progressive illness from which death can reasonably be expected would change the basis for the award of the benefit, he held.

"It would no longer be needs based. It would be determined by the diagnosis of a particular condition independently of need."

Allowing the appeal, he pointed out that legislators examined where the line should be drawn in 1990 and 2010, with continuing reviews since 2018.

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