Woman wins landmark case on definition of terminal illness

A judge held that Lorraine Cox, 40, suffered discrimination compared to others with life-limiting conditions who get immediate access to enhanced payments.

The landmark verdict came in the mother-of-three’s challenge to the legal definition of a terminal illness.

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) 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.

Her lawyers said she also had to spend months searching for work as part of separate 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 without having to “go through all the hoops”.

During the hearing statistics emerged to show 14% of individuals who gained immediate access to the payments 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 the benefits without any delay.

Public funds are also safeguarded by avoiding an open-ended definition which could apply to vastly more people than currently qualify, according to their case.

But delivering judgment, Mr Justice McAlinden said: “I can find nothing to justify, or indeed explain, why those individuals who have a terminal diagnosis but are not expected to die within six months, and those individuals with a terminal diagnosis and who are reasonably expected to die within six months but who survive beyond that six month period are treated differently.”

Ms Cox would have immediately received enhanced PIP and UC if she had made claims and been able to gain access to the payments when diagnosed with “a devastating terminal illness”, he pointed out.

Finding no rationale for why she was not deemed entitled at the time, the judge found: “This difference in treatment is manifestly without reasonable justification and is, therefore, in breach of Article 14 of the European Convention on Human Rights.”

He confirmed: “To the extent indicated above, the applicant succeeds in her application for judicial review.”