Terminally ill woman awarded £5k damages

Mr Justice McAlinden held that Lorraine Cox should received the payout for the discrimination she suffered compared to others with life-limiting conditions who get immediate access to enhanced payments.

He said 40-year-old Ms Cox endured “upset, distress, annoyance, inconvenience, worry and humiliation... directly as a result of the difference in treatment”.

The award follows an earlier landmark verdict in the mother-of-three’s legal challenge to the legal definition of a terminal illness. Earlier this year the judge found that her treatment was without justification.

In 2018 Ms Cox, from Derrylin in Co Fermanagh, 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).

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. Her lawyers said she also had to spend months searching for work as part of attempts to secure Universal Credit (UC).

Proceedings were brought against Stormont’s Department for Communities, and the Secretary of State for Work and Pensions.

Counsel for Ms Cox 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 was told.

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

During the hearing statistics emerged to show 14% of individuals who gained immediate access to the benefits due to a diagnosis of being expected to die with six months were still alive three years later.

Lawyers for the respondents contended that the rules ensure those closest to death get immediate access to benefits, while also safeguarding public funds by avoiding an open-ended definition.

In July Mr Justice McAlinden held that the difference in treatment breached Article 14 of the European Convention on Human Rights.

Returning to the case today to deal with final remedies, he declined to make a formal declaration of incompatibility.

He confirmed, however, that an award of damages was necessary to provide Ms Cox with “just satisfaction”.

The judge stressed that she is no longer at any pecuniary loss, having received ex-gratia payments of just over £20,000 which do not affect her entitlement to benefits.

But awarding £5,000 damages and legal costs to Ms Cox, he said: “I also have regard to the intensely personal and emotive issues which form the backdrop to this case, and how the unlawful difference in treatment personally and intimately impinged upon the applicant who was at that stage having to cope with and come to terms with a diagnosis of terminal illness.”