R (TD and AD) v SSWP CO/590/2018; R (Reynolds) v SSWP CO/4542/2018
This case was a challenge to the lack of transitional protection, and inability to return to legacy benefits, in cases where the claimant's benefit entitlement is terminated, forcing them onto UC, and the decision to terminate their benefits is subsequently found to be incorrect. CPAG argued that the lack of transitional protection or mechanism to allow people in this situation to return to legacy benefits, was discriminatory.
The first case is brought on behalf of TD and AD, a mother and daughter. TD, a single parent, gave up her work as a laboratory chemist to care full time for AD. AD, who suffers from severe sickle cell anaemia and epilepsy, was receiving disability living allowance ("DLA") at the middle rate care component and lower rate mobility component. TD was, in turn, in receipt of income support and carer’s allowance. However, when AD’s DLA award was about to end, and before the renewal application had been processed, TD’s income support was terminated because her carer’s allowance (linked to the DLA award) was due to end. TD made inquiries at the local jobcentre and was advised to claim UC once her income support ended, which she did.
Subsequently, she put in a request for official error revision given that her income support should have continued on the basis that she was the carer of a person who had claimed DLA and a decision was still pending on that claim. DWP accepted that there had been an error but were only prepared to pay arrears between the date of the income support award ending and the UC award starting. Despite the successful revision, TD was receiving almost £140 per month less under UC than under legacy benefits because the additional amount received under UC for a disabled child is less than the equivalent addition under child tax credit other than for the most severely disabled children. [AD has since been successful in having her DLA award revised so that she is receiving the higher rate care component. This in turn means that TD is entitled to the higher rate disabled child addition in UC and, as this is paid at the same rate as the equivalent addition in child tax credits, she is no longer financially worse off. However, this does not detract from the fact that she had to manage on £140 per month less for more than 18 months due to the error by DWP in ending her income support].
The second case is brought on behalf of Mrs Reynolds, a single woman with rheumatoid arthritis and spondylitis severely affecting her mobility so that she needs crutches to move around. She was receiving personal independence payment ("PIP") and employment support allowance ("ESA") on account of her disabilities. However, despite a deterioration in her health, DWP decided that she no longer qualified for PIP and then stopped her ESA after she failed to attend a work capability assessment. With no other source of income, other than housing benefit to pay her rent, Ms Reynolds was left with no option but to claim UC. She subsequently went on to challenge both the termination of her PIP and her ESA but is prevented by the legislation from returning to legacy benefits and is left £183.48 per month worse off on UC due to the absence of the severe disability premium within UC.
The cases were heard together in the High Court in January 2019. The challenge was unsuccessful, with the court finding that the potential impact on claimants who suffered disadvantages as a result of a DWP error had been considered by the government and so there was no discrimination. The judgment can be read here. CPAG applied to the Court of Appeal for permission to appeal against this decision, on the basis that consideration of differential treatment is not the same as justification for that differential treatment. Permission has now been granted and we are awaiting a hearing date.
In the interim, the government has introduced new legislation, which prevents a person who is receiving the Severe Disability Premium from claiming UC. Those who have already lost out as a result of being moved to UC will receive a transitional SDP, but this will not fully compensate them for the amount lost. The lower sum being paid as transitional protection is now being challenged by Leigh Day Solicitors. More information on the Leigh Day challenge can be found here.