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Summary

The claimant appealed against the decision of the First-tier Tribunal about whether she satisfied the work capability assessment. She was assisted at the tribunal and in her further appeal by a representative. In applying for permission for further appeal, the representative said that he had wished to give evidence at the tribunal on behalf of the claimant about the matters with which his organisation had felt it necessary to assist her, but had been told by the judge that he could only ask his client questions or make a submission.

Allowing the claimant’s further appeal and remitting the case to a new tribunal, Judge Gray commented on that, although he decided the case on another matter and did not have the benefit of argument on it (paragraph 3). The judge said that the tribunal would have been entitled to hear the representative’s evidence, as ‘there is nothing to prevent a representative from giving factual evidence of matters within their knowledge’. It was of course a matter for the tribunal to assess the weight of such evidence, in the way that they weigh any evidence (paragraph 6).

In so commenting, the judge endorsed the finding of Commissioner (as he then was) Jacobs in CDLA/2462/2003, where he said, ‘the tribunal must take care to distinguish evidence from representation so that the former’s provenance is known and can be the subject of questioning by other parties. But subject to the practicalities of the way in which the taking of the evidence is handled, there is no objection in principle to the same person acting in different capacities as a witness and as a representative. Nor is there any reason in principle why the probative value of evidence should depend upon whether or not it came from a representative’ (paragraph 7).

Summary

The claimant’s appeal included whether he had limited capability for work by virtue of the ‘substantial risk’ provision at regulation 35 of the Employment and Support Allowance Regulations 2008 No.794. He had previously been entitled on that basis, mentioned it when requesting a mandatory reconsideration, and the Secretary of State made explicit reference to the decision on mandatory reconsideration and in the appeal papers. The First-tier Tribunal dismissed the appeal and said in its decision: ‘The appellant was represented by an experienced representative. No submissions were made for the tribunal to consider regulation 35 and so this regulation was not considered by the tribunal.’

Judge Wright set the decision aside and remitted the case to a fresh tribunal. The tribunal had erred in not considering regulation 35, as it was plainly an issue raised by the appeal. In such a case, it was irrelevant that it was not specifically addressed by the claimant’s representative’s submission. In so holding, the judge held that a number of previous decisions (CSIB/389/1998, CSIB/588/1998, CSDLA/336/2000 and CSIB/160/2000) should be disregarded, to the extent that they held that where the appeal raises a matter, a tribunal may rely on the representative’s submission in not considering it. ‘In essence,’ held the judge, ‘the tribunal erred in law by abrogating its legal obligation under section 12(8)(a) of the Social Security Act 1998 (‘SSA’) to consider all issues raised by the appeal and in treating the representative’s stance (as the tribunal understood it to be) as relieving the tribunal of its duty under section 12(8)(a) to consider the issues raised by the appeal before it’ (paragraph 3).

Given the decision-making history, the terms of the claimant’s request for mandatory reconsideration and the Secretary of State’s own response, it was common ground that the issue of regulation 35 was ‘raised’ by the appeal. Further, following MN v SSWP (ESA) [2013] UKUT 262 (AAC), reported as [2014] AACR 6, and DH v SSWP (ESA) UKUT 573 (AAC), the consequence of sections 2(3)(b) and 4(5)(b) of the Welfare Reform Act 2007, which give as a condition of entitlement to the work-related activity component of employment and support allowance (ESA) ‘that the claimant does not have limited capability for work-related activity’, means that an affirmative decision had to have been made in the decision under appeal that regulation 35(2) of the ESA Regulations was no longer satisfied. Authority in Mongan v Department of Social Development [2005] NICA 16, reported as R 3/05 (DLA), and in Hooper v Secretary of State for Work and Pensions [2007] EWCA Civ 495, reported as R(IB) 4/07, was that if an issue was ‘clearly apparent from the evidence’ in an appeal then it was ‘raised’ by the appeal, irrespective of whether that had been clearly identified by the appellant or her/his representative. As Judge Wright said in his own decision in ET v SSWP (PIP) [2017] UKUT 478 (AAC), ‘properly read the language of section 12(8)(a) means a First-tier Tribunal must consider an issued that is raised by the appeal’ (paragraph 24). The decisions in CSIB/389/1998, CSIB/588/1998, CSDLA/336/2000 and CSIB/160/2000 may still apply in so far as, where a tribunal is seeking to establish whether an issue is ‘clearly established from the evidence’, a representative may have a relevant role. But in so far as they put a gloss or limit on the express duty to consider an issue raised by the appeal, they should be disregarded. A representative cannot remove such an issue from consideration (paragraph 30).

Comment from CPAG

This decision restates, and to some extent re-establishes, the fundamental duty of a tribunal to consider issues raised by the appeal (ie, those ‘clearly apparent from the evidence’), irrespective of the representative’s submission. It is explicitly in conflict with the older authority cited in the decision that qualifies that regarding submissions from a representative. It is more closely reasoned than that authority, and is certainly more recent. Tribunals will need to be clear about what they consider is or is not raised by the appeal; representatives can and should still be clear about what issues they wish the tribunal to focus on.

Summary

The claimant’s request for a mandatory reconsideration of his tax credits decision was made 35 days outside the standard 30-day time limit for making such a request (but within the absolute time limit of 13 months). HM Revenue and Customs (HMRC) determined that the request was late and that therefore it would only consider it in ‘special circumstances’. It said the request could not be accepted, although the decision about this indicated that HMRC had taken into account the claimant’s reasons for lateness (he reported language problems and illness) and the alleged error (mistake about his selfemployed status and income). The First-tier Tribunal struck out the claimant’s appeal, holding it had no jurisdiction as there had been no mandatory reconsideration and therefore there was no right of appeal.

Judge Scolding QC allowed the claimant’s appeal against the strike-out, reinstated the claimant’s appeal and directed the First-tier Tribunal to consider it. The tribunal had erred in holding that it had no jurisdiction. The correct position was that HMRC had carried out a mandatory reconsideration, and so therefore the claimant did have the right of appeal. In so holding, the judge had reference to the decision of the tribunal of judges in R (CJ) v SSWP (ESA) [2017] UKUT 324, reported as [2018] AACR 5, a decision that held that for benefits there was a right of appeal where a mandatory reconsideration had been made late (but within the absolute 13-month time limit) and the DWP had refused to admit it.

In argument before the judge, HMRC submitted that the present case was distinguishable from that in CJ, as that was a benefits case, and the relevant law for tax credits was materially different. Section 38(1A) of the Tax Credits Act 2002 requires a mandatory reconsideration (referred to there as a ‘review’) to have been ‘carried out’ in order for appeal rights to arise; it was submitted that, therefore, where HMRC had refused to accept the late appeal, there had been no mandatory reconsideration. But the judge rejected that. The rules for benefits and tax credits, although differently worded, had ‘the same statutory purpose’, which was to ‘create a state prior to an appeal where the Secretaries of State for Work and Pensions or HMRC can consider the decision again in order to reduce the number of appeals’ (paragraph 17). There was no intention of reducing appeal rights. Applying the reasoning in CJ, and so bearing in mind considerations such as common law fairness and the right to a fair trial in Article 6 of the European Convention on Human Rights, the judge held that ‘carrying out a review’ under section 38(1A) of the Tax Credits Act 2002 ‘must include considering whether to extend time to carry out the review’. HMRC’s contention that there had been no review ‘failed to grapple adequately’ with the fact that the decision about that implicitly sought to uphold the original decision. As in CJ, the availability of judicial review was not an adequate substitute for appeal rights in such cases (paragraph 27).

Comment from CPAG

thanks to Joe Power of Kirklees Citizens Advice and Law Centre for sending us this decision. The decision is an explicit rebuttal of HMRC’s long-held argument that the wording of the relevant tax credit legislation required a different (and restrictive) approach regarding appeal rights after a late mandatory reconsideration to that taken, following the decision in CJ, to benefits. There is indeed no good reason why the tax credits position should be different; however, it remains to be seen if HMRC is to seek to appeal further.

Summary

The claimant had a conviction for benefit fraud involving failure to declare savings. Subsequently, three applications for housing benefit (HB) by the claimant had been refused by the local authority on the basis of its belief that the claimant had excess capital, despite the claimant saying he had spent the money to get rid of gambling debts, and those decisions had been upheld by appeal tribunals. In September 2019, the claimant made a fourth claim for HB. That was again refused. The First-tier Tribunal noted that the claimant had requested a determination on the papers rather than a hearing, drew an inference that he had something to hide, and in September 2020 (having considered the appeal on the papers) refused his appeal.

Judge Wikeley allowed the claimant’s further appeal, setting the decision aside and referring the case to a new tribunal. This was not on the basis of any finding about the claimant’s capital, which would need to be considered afresh by the new tribunal. Rather, the tribunal had erred in not properly considering the claimant’s reasons for not requesting a hearing and the possible need to facilitate a hearing for example by telephone. In his reasons for appealing to the Upper Tribunal, the claimant said: ‘I had paper tribunal because of COVID not to hide.’ Taking this and other relevant circumstances into account, Judge Wikeley concluded that the tribunal had erred on the basis that it had not been fair to proceed without a hearing. As he told the claimant when granting permission to appeal:

‘The first national lockdown began on 23 March 2020 and was still very much in force when the appellant completed the hearing enquiry form on 20 April 2020. The file made it clear that you were aged 74 at the time and had serious medical conditions including the loss of an eye and PTSD [post-traumatic stress disorder]. On that basis surely the natural and obvious inference was that you were staying at home for your own safety and security (and indeed in accordance with official government advice). It may be the tribunal has not done enough here to justify its reasons for proceeding under rule 27 (see eg, FY v Secretary of State for Work and Pensions (ESA) [2017] UKUT 501 (AAC))’ (quoted at paragraph 7).

There were two further reasons for the unfairness. The first of these also related to the COVID pandemic and in particular the availability of telephone hearings, the second to authority on dealing with the credibility of a witness. Again, the judge had set these out when granting permission to appeal (quoted at paragraph 7):

‘11. First, as the pandemic spread, the First-tier Tribunal office began arranging virtual hearings by using telephone hearings or video-platform hearings. The hearing enquiry form issued here implies the choice was either a face-to-face hearing or a paper hearing and nothing in between. If the appellant had been offered a telephone hearing, it is entirely possible that he may have accepted, but he was not given any such opportunity. Caselaw shows that a tribunal which fails to consider the option of adjourning for a telephone hearing may (not necessarily will) have erred in law: see eg, LO’K v Secretary of State for Work and Pensions (ESA) [2016] UKUT 10 (AAC); [2016] AACR 31.

 

‘12. Second, it was obvious on reading the papers on file that the credibility of the appellant’s account was critical. The council understandably pointed to the fact that there was a prior criminal conviction for dishonest non-disclosure of capital assets and that three previous tribunals had refused similar appeals brought by the appellant. Certainly, the fact that a claimant has been found to have lied in the past may indicate a propensity to lie (see eg, SR (Iran) v Secretary of State for the Home Department [2007] EWCA Civ 460). However, being an inveterate liar does not necessarily mean that the person concerned is not telling the truth on this occasion: see KM (Somalia) v Secretary of State for the Home Department [2009] EWCA Civ 466. Arguably, the central importance of credibility meant that the tribunal needed to hear at first hand from the appellant so his account could be properly tested. It is also unclear whether he had ever been advised as to the type of evidence that he might bring forward to support his case – eg, was there evidence of any counselling for gambling addiction? Had he discussed the problem with his GP? Was there evidence that family members could provide about his gambling addiction and debts?.’

Comment from CPAG

This decision is noteworthy in setting out how a claimant’s choice of a paper determination may have been influenced by the COVID pandemic, and how tribunals should bear that and related matters in mind when deciding whether it is indeed in the interests of justice to dispense with a hearing.

Summary

In this decision, the Court of Appeal unanimously held that the requirement in the ‘proof of payment’ rule in universal credit (UC) (at regulation 33(1)(za) of the Universal Credit Regulations 2013, SI No.376) already to have paid childcare costs before they can lead to an award of the childcare element was not unlawful. In so holding, it reversed the previous decision of the High Court in this case.

The rule was not (contrary to the finding of the High Court) unlawful as indirect discrimination on grounds of sex. Giving the lead decision, Lady Justice Andrews held the possible indirect different treatment of women was objectively justified (and so not unlawful). The High Court had wrongly considered that the Secretary of State needed to justify not adopting an alternative (ie, proof of liability) to the proof of payment rule; rather, the challenge involved focusing on the lawfulness of regulation 33 itself. ‘In fact,’ said Justice Andrews, ‘this was a classic example of a case in which a substantial degree of deference should have been afforded to the judgment of the decision maker, especially as the impugned measure had been subjected to parliamentary scrutiny, notwithstanding that this deference would be tempered to some extent by the fact that the ground of discrimination complained of was on the basis of sex, which would require more cogent reasons to justify it than if the differential treatment were on the basis of some other non-suspect ground’ (paragraph 99). The court considered that the evidence of the Secretary of State, ‘provided ample justification for the adoption of the proof of payment rule. The reimbursement model of payment of costs actually expended on childcare fitted with the overall architecture of UC, it was simple to understand and operate and it significantly reduced the problems that had caused major difficulties with the legacy system. The judge’s critique of the justification put forward for the rule failed to accord the appropriate degree of respect for the measure of judgment afforded to Ministers in this area of policy…’ (paragraph 113).

The rule was also not (again contrary to the finding of the High Court), irrational in the sense described by the Court of Appeal in R (Johnson v Secretary of State for Work and Pensions [2020] PTSR 1872. The court did not accept the analogy with Johnson, which concerned an ‘acknowledged arbitrariness’ in the rules about treatment of monthly earnings paid on a non-banking day, and involved a challenge to the decision not to provide a solution to that acknowledged problem (paragraphs 115–116). The ‘narrow confines’ of Johnson had been highlighted by the recent decision of the court in R (Pantellerisco) v Secretary of State for Work and Pensions [2021] EWCA Civ 1454. The high threshold for an irrationality finding was not met. ‘The challenge in the present case is not to a decision refusing to “fine tune” the UC system to cater for an arbitrary harmful impact of the type identified in Johnson. Rather, as in Pantellerisco, it seeks to stigmatise as unlawful one of the elements of the system which was deliberately chosen, and which potentially gave rise to hardship for those who were unable to comply with its requirements or found it difficult to do so. The proof of payment rule was adopted in order to reduce fraud and error and promote simplicity. It fits within the overall scheme of UC as a benefit to be paid in arrears, akin to a salary, supplementing income from work’ (paragraph 126). In conclusion: ‘This was not a case where there was an obvious straightforward solution which it was irrational for the Secretary of State not to have pursued…it cannot be said that “precluding a system where eligibility is based on liability to pay” struck the balance in a way which no reasonable Secretary of State would have done’ (paragraph 127).

Summary

The clamant was entitled to legacy benefits, including child tax credit. In October 2019, following incorrect advice from the DWP to claim UC pending a mandatory reconsideration of a decision about her employment and support allowance, the claimant submitted a claim for UC. However, having taken further advice, the claimant telephoned the DWP to withdraw her UC claim on 7 October (she was never paid UC). But on 9 October, the DWP issued an electronic ‘stop notice’ to HMRC, advising that the claimant had claimed UC and that the Secretary of State was satisfied that she satisfied the basic conditions of entitlement. HMRC terminated entitlement to tax credits. The First-tier Tribunal allowed the claimant’s appeal, upholding her argument that she had withdrawn her claim for UC by the time the stop notice was issued, so that at that time she had not made a claim for UC her tax credits did not fall to be terminated.

Judge Mitchell dismissed the further appeal of HMRC. The tribunal had not erred in law. The claimant had undoubtedly submitted a claim for UC. She had also withdrawn it, exercising her right to do so (before the claim is determined) under regulation 31 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013, SI No.380. But what did that mean for this case? The main provision at issue was regulation 8 of the Universal Credit (Transitional Provisions) Regulations 2014, SI No.1230. That provides, at subparagraph (2), for the termination of certain existing legacy benefits, including tax credits, in the event of a claim for UC. But that termination is subject to the requirement in subparagraph (1) that a claim for UC ‘is made’ and that the Secretary of State is satisfied that the claimant satisfies the basic conditions of entitlement. The judge considered that meant that the claim for UC must be in existence at the time of the issue of the stop notice indicating the Secretary of State was so satisfied. Construing regulation 8, the judge held that: ‘in order for a valid regulation 8(1) determination to be made that a UC claimant satisfies the UC basic conditions, that is a determination that triggers the cessation of tax credit entitlement provided for by regulation 8(2), there must be a subsisting UC claim at time of the determination’ (paragraph 31).

The judge had reference to the earlier decision of Judge Jacobs in HMRC v LH [2018] UKUT 306 (AAC). In that case, the claimant had also withdrawn her claim for UC, but after the issue of the stop notice to HMRC. That was crucial as it could not then have retrospective effect. Judge Jacobs said at paragraph 11 of his decision: ‘…My reading of regulation 8(1) is that it requires the simultaneous existence of a claim and the Secretary of State’s satisfaction on the basic conditions. In this case, a claim was made and the Secretary of State was satisfied while that claim existed. That is sufficient. The subsequent withdrawal of the [claim] cannot rewrite history by pretending that the claim was never submitted in the first place.’ HMRC argued that that applied in the present case, even though the claim had been withdrawn before the issue of the stop notice. Rejecting that, Judge Mitchell noted that Judge Jacobs had also considered that for termination there needed to be the ‘simultaneous’ existence of the claim and the Secretary of State’s satisfaction on the basic conditions. Further, the judge considered that to be the legislative intention behind regulation 8 for a number of reasons, including the use of the present tense in the words ‘a claim is made’, that it best ‘preserves claimants’ freedom to order their benefit affairs as they see fit’, and that ‘an interpretation that avoids a gap in entitlement to income-related benefits is to be preferred to one that allows such a gap to arise. On HMRC’s argument, recipients of income-related benefits may, by withdrawing a UC claim, unwittingly engineer a gap in entitlement to income-related benefits’ (paragraph 31).

Comment from CPAG

This decision is authority (not undermined by HMRC v LH) that termination of certain legacy benefits under regulation 8 can be avoided where the claim is withdrawn before the issue of a DWP ‘stop notice’. It should be capable of application to the similar arrangements that apply regarding termination of housing benefit and stop notices to local authorities.

Summary

The claimant was entitled to child benefit for her son, and also got the care component of disability living allowance (DLA) for him. The claimant and her husband had worked in the UK. They ceased paid work and went to live in Spain in 2011. Entitlement to the care component of the DLA continued but (as eventually decided by HM Revenue and Customs (HMRC)) entitlement to child benefit was lost due to the national (UK) rules not being satisfied, and the UK no longer being considered the competent state for payment once residence had commenced in Spain. That was reversed by Judge Jacobs in the Upper Tribunal in WC v HMRC (CF) [2019] UKUT 289 (AAC), where it was decided that, under Article 7 (on waiving of residence rules) of EC Regulation 883/04, the UK had remained the competent state for payment of benefit, so that child benefit was ‘exportable’ to another member state of the EU. 

The Court of Appeal unanimously upheld the further appeal of HMRC. Child benefit was not exportable to the EU in this case and consequently the claimant’s entitlement had stopped when the domestic rules on residence ceased to be satisfied on the move to Spain. WF v HMRC had wrongly held that the competent state remained the UK under Article 7 of Regulation 883/04. Instead, the competent state had changed to being Spain, under the default provision (deeming the state of residence to be the responsible or ‘competent’ state for payment of benefit) at Article 11(2)(e). 

Giving the lead decision for the court, Sir Launcelot Henderson accepted that Article 7 had a narrower application than that adopted in WF v HMRC, so it applied only in order to prevent the competent state from avoiding payment on the sole basis that the claimant did not reside in the state. It did not in itself provide that for a family benefit the competent state would not change following the start of residence in another state. In this case, Article 11(2)(e) applied so that the competent state for payment of the family benefit was the state of residence. The judge considered that the language of Article 7: 

‘…presupposes the existence of an entitlement to the cash benefits in question, and that its purpose is merely to prevent any reduction etc in those benefits because the beneficiary or members of his or her family “reside in a Member State other than that in which the institution responsible for providing benefits is situated.” That appears to me to be a reference to the competent institution, in a situation where there has been no change in the applicable legislation referred to in the first limb of the article... But if there is a change in the applicable legislation, I agree with HMRC that Article 7 cannot be invoked to provide an independent basis for the continued payment of UK child benefit. The correct analysis in such a case is that the UK child benefit ceases to be payable as a result of national law, and its cessation is not overridden by Article 7 because the underlying reason for the cessation is not the change of residence, but the change in applicable law’ (paragraph 99). 

This was distinguishable from the position regarding the DLA care component, which was exportable as a cash sickness benefit. That position was originally established by the European Court of Justice in Secretary of State for Work and Pensions v Tolley (Case C430/15, reported as [2017] 1 WLR 1261); but that was a case about a sickness benefit, not a family benefit, that turned on the specific provisions of Article 22 of EC Regulation 1408/71, the predecessor of EC Regulation 883/04.

Summary

The claimant was entitled to tax credits. When in 2019 she made an online claim for UC, a ‘stop notice’ was automatically issued to HM Revenue and Customs (HMRC) who then terminated her entitlement to tax credits. In April 2019, the DWP decided that she was not entitled to UC, because as she did not satisfy the right to reside test, she was by therefore treated as not meeting the basic condition to be ‘in Great Britain’, as set out in section 4(1)(c) of the Welfare Reform Act 2012. On appeal, she argued that the decision to terminate her tax credits on receipt of the stop notice was wrong, because the relevant rule on termination (at regulation 8 of the Universal Credit (Transitional Provisions) Regulations 2014 No.1230), required the Secretary of State to be ‘satisfied’ that the basic conditions of entitlement to UC were met before termination could occur, and that could not be done without reference to the right to reside test.

Judge Jacobs rejected the claimant’s further appeal. Her tax credits were lawfully terminated, on a correct application of regulation 8. That rule was a transitional provision that provided for the transfer of claimants to UC, and was not dependent on the outcome of the claim. Specifically, regulation 8 only required the Secretary of State to be satisfied that the basic conditions in section 4(1)(a)–(d) were met. Section 4(1)(a) in itself merely required the claimant to be ‘in Great Britain’, and for the purposes of regulation 8 had a freestanding, unqualified meaning. It was only separate rules (specifically at regulation 9 of the Universal Credit Regulations 2013) that created the qualification that a claimant was to be treated as not in Great Britain if s/he did not satisfy the right to reside test. The judge considered that that that qualification did not apply for the purpose of the transitional arrangements created by regulation 8. So applying regulation 8 did not have to await the determination on the right to reside test that applied for the purposes of the separate decision on UC entitlement.

The judge considered that: ‘Regulation 8(1)(b) refers to “the basic conditions as specified in section 4(1)(a) to (d)”. That excludes cases in which a person is treated as not being in Great Britain under section 4(5)(a). In other words, it excludes cases in which section 4(1)(c) is qualified by deeming provisions. The words used are capable of bearing that meaning and it is the appropriate meaning in the context of the 2014 Regulations. My analysis provides a clear and rational basis for adopting an interpretation that limits the reference to the basic condition to the language of the section consistently with the omission of any reference to the financial conditions’ (paragraph 22). Also, if the claimant’s argument were correct: ‘… the result is an arbitrary distinction between the basic conditions and the financial conditions. Furthermore, it leaves decision makers and claimants uncertain, potentially for months, while information and evidence is gathered and enquiries made. From an administrative perspective, it is inefficient and far from the way that transitional provisions usually operate’ (paragraph 23). Instead, the judge held that the reference to the basic conditions in section 4(1)(a)–(d) entailed merely requiring an answer to three questions: ‘(a) what is your date of birth; (b) are you in Great Britain; and (c) are you receiving education?’ (paragraph 34). The fact that the stop notice was issued (legitimately) by a computer on receipt of the UC claim did not affect this reasoning. The decision of Judge Mitchell in HMRC v AB [2021] UKUT 209 (AAC) was not followed, as it was distinguished as being about a different issue and with different explanations offered about how the UC system works.

Comment from CPAG

Arguably, this decision is wrong in holding that the Secretary of State can be properly ‘satisfied’ regarding the basic conditions when, given the full statutory tests, they have only been partially considered – eg, without even a preliminary consideration of right to reside. It may be that such arguments are to be made in a future case before the Upper Tribunal. However, for the moment at least, this decision is authoritative (and is binding on First-tier Tribunals) on this issue. See also JL v Calderdale Metropolitan Borough Council and SSWP.

Summary

In this decision the High Court held that, in cases of ‘natural’ migration to UC by claimants entitled to the severe disability premium in legacy benefits, the failure to provide any relief for the additional loss of the EDP and the lower rate of the disabled child element in CTC was unlawful as it was in breach of anti-discrimination law

The claimants in TP and AR were severely disabled claimants who had undergone natural migration to UC, having moved to a different local authority area and so lost housing benefit. The claimant in AB and F was a severely disabled person who had undergone natural migration to UC having formed a couple with another claimant, also severely disabled, and so lost entitlement to CTC. In both cases, relief for the loss of the severe disability premium (SDP) (following earlier litigation also undergone by TP and AR) was now included, via inclusion of the transitional SDP amount, and no challenge was made about that. But they argued that the failure also to include relief for the loss of the EDP in legacy benefit and (in AB’s case) the loss caused by loss of her disabled child element in CTC constituted discrimination in breach of Article 14 of the European Convention on Human Rights, read together with Article 1 of Protocol 1 (protection of property) and also, in AB’s case, with Article 8 (right to family life).

In the High Court, Mr Justice Holgate agreed, and allowed both applications for judicial review. The Secretary of State had not justified the differential treatment applied to them compared with people in a similar or analogous position but who had not naturally migrated to UC – ie, SDP-entitled people who had remained on legacy benefits and had therefore not also lost the EDP of the disabled child element of CTC. In considering justification, the judge had regard to a test of proportionality, and (regarding AB and her son F) accepted that the emphasis on the best interests of the child in Article 3(1) of the UN Convention of the Rights of the Child was ‘a relevant consideration in determining whether differential treatment is justified under Article 14’ (paragraph 214). Regarding TP and AR, ‘a fair balance has not been struck’ between the effects of their loss and the official aims (‘of promoting phased transition, curtailing public expenditure or administrative efficiency’) in providing for migration to UC (paragraph 196). Regarding AB and her son F, the judge similarly held: ‘the firm conclusion that the material before the court does not establish that, on the issue of whether no transitional protection should be provided to SDP natural migrants in respect of the cliff-edge effect of reducing the disabled child addition, a fair balance has been struck between the substantial harm caused to the persons concerned and the aims which have been advanced in the defendant’s legal submissions…’(paragraph 233).

The judge was at pains to point out that the challenges, and his judgment on them, did not involve wider challenges to UC or the natural migration arrangements: ‘In view of the wide-ranging nature of some of the criticisms of the UC scheme contained in the evidence before the court, I should clarify what this case is and is not about. Both claims are essentially concerned with alleged discrimination against members of the SDP natural migrants group. They are not concerned with any disadvantages flowing from natural migration to UC more generally. The challenges do not relate to the decisions made not to replicate EDP and the full amount of the CTC element for a disabled child in the UC scheme. Instead, they relate solely to the lack of transitional protection in cases of natural migration to UC against the cliff-edge effect of suddenly experiencing the loss of the EDP element and, the reduced amount of the UC’s lower rate for a disabled child compared with the CTC scheme. In that respect, the claimants do not argue for a complete indemnity against these losses. They accept that a fixed payment approach could be lawful as a way of overcoming the unlawful discrimination they allege. There is also no legal criticism of the rules for tapering or erosion of transitional elements of a UC award’ (paragraph 74).

Comment from CPAG

This judgment does not strike down the rules found to be discriminatory, and it will be for the Secretary of State to respond. That said, once again (this is the third successful challenge by TP and AR), a court has found that natural migration to UC by severely disabled claimants has involved unlawful discrimination. Whether the response is founded in acceptance, qualification or denial of that stark position remains to be seen.