Erosion – where are we now?

Caselaw successes

All three of the potential challenges identified in the Bulletin article ‘Erode to nowhere’ (Bulletin 286, February 2022) have now resulted in Upper Tribunal caselaw beneficial to claimants – and, in two cases, in changes to legislation.

• PR v SSWP [2023] UKUT 290 (AAC) held that the failure to immediately include the limited capability for work-related activity (LCWRA) element in UC awards to certain mixed-age couples has been held to be discriminatory.1 The government has responded to the judgment by amending legislation.2
• SSWP v JA (UC) [2024] UKUT 52 (AAC) found that the erosion of the element for UC claimants moving from temporary or specified accommodation into mainstream rented accommodation was unlawful discrimination. The government has introduced an amendment to legislation in response to the judgment, taking effect from 1 June 2025 (see below).
• Most recently, in SSWP v MJ (UC) [2025] UKUT 35 (AAC), the application of erosion to carers subsequently assessed as having LCWRA in such a way as to leave the claimant worse off has also been held to be discriminatory. At the time of writing, it remains to be seen whether the Secretary of State (SSWP) will seek to appeal.

Government’s legislative response

In all three cases, the Upper Tribunal judgments can apply to give remedies without the need for any legislative changes. However, amendments have now been made for the PR and JA cases.

Amendment in the light of PR

As amended, regulation 21(1)(a)(ii) of the Universal Credit (Transitional Provisions) Regulations 2014 now makes provision for the inclusion of the LCWRA element from the start of the UC award in circumstances where the claimant made their UC claim within one month beginning with the day after the day on which an award of employment and support allowance (ESA) ends as a result of having turned pension age. That one-month requirement restricts the rights which the Upper Tribunal accepted existed in PR – in which the gap between ESA ending and the UC claim was irrelevant to the outcome. Advisers supporting a claimant who would be covered by regulation 21(1)(a)(ii) but for the one month condition should appeal and ask the First-tier Tribunal to apply PR.

Amendment in the light of JA

The JA amendment means that no erosion takes place where a housing costs element is added to the award of UC within a month of the claimant being entitled to an award of housing benefit (HB) in respect of specified accommodation or temporary accommodation. Problems can be caused if a claimant does not report their change of housing promptly – it could be that a late notification of such a change would mean the housing costs element was not added until more than a month after the HB award ended. Therefore, advisers should be alive to the importance of prompt reporting of changes of circumstance advantageous to the claimant, and of the provision for extending the time within which claimants must report advantageous changes.3

Effective dates: supersession and transitional element

It appears that the DWP quite often wrongly supersedes awards instead of revising, or supersedes using the wrong effective date – both of which can incorrectly result in erosion. Such decisions can be challenged by astute advisers: a decision which can be revised cannot be superseded (regulation 32 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013) and a challenge to a supersession decision can include a challenge to the effective date of that supersession. It may be that erosion can be avoided altogether by the correct application of these rules so as to ensure, for example, that the housing costs element in respect of ‘mainstream’ accommodation is included in the UC award within the month following the end of the HB award in respect of the temporary or specified accommodation.

In the context of claimants moving from temporary or specified accommodation into ‘mainstream’ rented accommodation, there is a risk claimants misreport their new housing as temporary or specified accommodation (particularly a risk in circumstances where claimants move from specified accommodation into ‘mainstream’ accommodation where significant levels of support nonetheless continue to be provided), leading to the SSWP [wrongly] superseding from whichever later date (outside of the permissible month allowed for in the legislation amended following JA) the claimant ‘corrects’ that declaration, rather than from the earlier date – resulting in erosion.4

Discrimination by the back door?

There are various circumstances in which benefit may be increased so as to avoid discriminating against the claimant. One example of this is the inclusion of an additional bedroom when determining the bedroom allocation for a claimant that satisfies the overnight care condition (provision for which was introduced by the government in recognition of the justice of the cases of Mr Burnip’s and Ms Trengrove’s cases – each of whom were adults in need of overnight care – as explained in the case of Daly & Ors, R (on the application of) (formerly known as MA & Ors) v SSWP [2016] UKSC 58).

There are circumstances in which the increase to the housing costs element resulting from the application of the overnight care condition (or any other increase resulting from the application of a provision introduced to avoid discriminating against the claimant) could result in erosion of a transitional element – although advisers should always check whether revision, rather than supersession, of the UC award should have taken place to avoid the erosion. In cases where supersession has been correctly applied and resulted in erosion of a transitional element, then, arguably, this would appear to perpetuate the discrimination by the back door and could be challenged. A template, in the context of the overnight care condition related to the application of the bedroom tax, can be found on CPAG’s Welfare Rights webpages.5

Applying the decision in MJ

Following the decision of the Upper Tribunal in SSWP v MJ (see above), then any transitional element included in a UC award which includes a carer element should not erode by the full amount of the LCWRA element when that is added. Judgment in SSWP v MJ was given on 29 January 2025 – the ‘January date’). It is necessary to consider the position of claimants who had (or have) an LCWRA element awarded for a period that starts before the January date because of the possible effect of section 27 of the Social Security Act 1998 – the ‘anti-test case rule’. This rule, where applies, requires the decision maker not to apply SSWP v MJ in other cases in respect of periods before it was decided.

There are a number of possible scenarios.

1. Cases where the decision adds an LCWRA element wholly from a date after the January date. These are not affected by the anti-test case rule. This is so, whether that decision is made after that date or before – for example, if the decision was made in December 2024 but found the ‘relevant period’ where LCWRA could not be added in regulation 28 of the Universal Credit Regulations 2013 would not end until after the January date.
2. Cases where the initial supersession decision to add the LCWRA element is made after the January date but the element is awarded for a period before that date. Here, the anti-test case rule will apply, so when that supersession is challenged section 27(3) requires decision makers not to apply the effect of SSWP v MJ for the pre-January date period.
3. Cases where the initial supersession decision to add LCWRA element was made before the January date and adds the element for a period before that date. These cases are more difficult and need to be considered even more closely.
   1. Certainly, if by the January date the claimant had already challenged the decision on mandatory reconsideration and been refused, then in any appeal against the original decision, the First-tier Tribunal is not caught by the anti-test case rule in section 27 and can apply SSWP v MJ to the whole period concerned. That is because the section 27(1)(b) condition does not apply to a tribunal – the rule only applies where after the test case it falls to the decision maker to make a decision not where it falls to a tribunal to do so.
   2. Cases where the initial supersession to add an LCWRA element and reduce the transitional element by the full amount of that addition (ie, as held to be unlawful by the decision in MJ) was made before the January date and the claimant has not had a revision (mandatory reconsideration) refused until after the date. These are most complicated. Here, when considering whether to revise that decision, the anti-test case rule in section 27 does apply to the decision maker. If the decision maker were simply to refuse to revise when faced with an application for revision from a claimant against the decision which had eroded the transitional element by the full amount of the LCWRA, then arguably in any subsequent appeal the tribunal would not have to apply section 27. That is because such an appeal would be brought not against the refusal to revise but against the original decision. But probably the right thing for the decision maker to do, faced with such a request for mandatory reconsideration, would be to conduct a supersession, applying SSWP v MJ only from the date of the judgment.6 In any appeal against that supersession decision, the tribunal would have to apply section 27 (as the tribunal is retaking a decision where the SSWP was required to apply it). A claimant who attempted to argue that really their appeal was against the original decision would run into the hurdle that they would need to show an application for revision had been implicitly refused to get around the mandatory reconsideration requirement. Given the rejection of implicit decisions in R(IB) 2/04 (paras 56–59) that might be difficult (although worth a try, given the human rights angle). No doubt there will, however, be many cases (given the inevitable delays in the SSWP issuing guidance about SSWP v MJ) where decision makers don’t do the supersession but instead simply refuse to revise – advisers should be prepared to argue in such cases that in a subsequent appeal section 27 is not a problem.

Overall, the application of the anti-test case rule to SSWP v MJ lookalikes is problematic –in that case, the Upper Tribunal ruled that the SSWP’s approach breached the human rights of those affected. Where the anti-test case rule at section 27 applies in these cases, it therefore requires the decision maker to go on breaching human rights in the same way in respect of periods before the January date. Whether that is compliant with the European Convention on Human Rights is a point yet to be decided. If a UK court held that it was not compatible, it is unlikely it could give any remedy except a declaration that this is the case (as, arguably, the discrimination is required by primary legislation – ie, section 27). That would leave the Strasbourg European Court of Human Rights as the only venue where financial redress could be obtained, in the form of damages. The time limit for bringing a case to Strasbourg is four months from when domestic remedies against the unlawful act are exhausted (seek advice from CPAG about this).

For claimants who have overpayments caused by being awarded LCWRA for a past period and having their transitional element eroded by more than the difference between LCWRA and carer element, another issue arises. Given such overpayments arise from a breach of human rights (albeit not necessarily an unlawful one, given section 27), then the DWP may commit an (actually unlawful) breach of rights if it exercises its discretion to recover such an overpayment under section 71ZB of the Social Security Administration Act 1992.

As these issues are complex and some involve test case points, advisers with lookalike cases to MJ potentially affected by the anti-testcase rule should get in touch with CPAG at [email protected].