MH v Secretary of State for Work and Pensions (SC944/19/01408)
Current status: First-tier Tribunal dismissed the appeal on 24/11/2020.
CPAG represented the appellant in a challenge to the universal credit (UC) rules that prevent certain 19 year olds who are in full-time, non-advanced education from being included in their parents’ UC claim, while they are also prevented from claiming UC in their own right, on the basis that the provisions are discriminatory and irrational. The appeal was heard by the First-tier Tribunal on 24th November and was dismissed.
CPAG represented a mother, MH, who claimed UC in April 2018, after being forced to give up work due to illness and family circumstances. Her son and daughter, then aged 18 and 17 respectively and both in full-time, non-advanced education, were included in her claim. MH’s UC monthly payments originally included two child elements. However, her UC payment for September 2018 contained only one child element. This was because MH’s son had turned 19 in June 2018 and under UC rules, from the September after his 19th birthday, he was no longer classed as a child or young person that could be included in a UC claim even though he was still in full-time non-advanced education. MH’s son tried to claim UC in his own name, as a single person, but the claim was refused because he was in full-time education.
In MH’s case, CPAG challenged the relevant provisions in the UC regulations via the statutory appeal process. A hearing in the First-tier Tribunal took place remotely on 24th November 2020.
For the purposes of both child benefit and child tax credit, a child or a ‘qualifying young person’ includes a person who is in full-time, non-advanced education until they turn 20. In contrast, for UC, regulation 5 Universal Credit Regulations 2013 (the “UC Regs”) uses a different definition of a ‘qualifying young person’, so that a person in full-time, non-advanced education is only a qualifying young person until 1 September following their 19th birthday.
CPAG challenged the more restrictive definition of a ‘qualifying young person’ for UC on the basis that:
i. the policy unlawfully discriminates against young people who are unable to finish their full-time, non-advanced education before the September immediately following their 19th birthday and correspondingly discriminates against their parents;
ii. in circumstances where the young person is unable to claim UC in their own name and is also ineligible for student grants/finance, the denial of financial support to young people in this position is irrational and contrary to the aims of UC, as it risks leaving them unable to complete their non-advanced education, thereby reducing their chances of securing better paid and stable work.
The unlawful discrimination ground was argued using Article 14 of the European Convention on Human Rights (ECHR) on the basis that the decision to exclude young people in this position from UC falls within the ambit of Article 8 (respect for family life), Article 1 to the First Protocol (respect to property) and Article 2 to the First Protocol (right to education) of the ECHR. The differential treatment is that a young person whose 19th birthday falls before he/she starts the final year of their non-advanced education, and their parents, are significantly worse off than those whose family includes a young person who turns 19 shortly after 1 September in their final year of non-advanced education which, the appellant argues, is not justified.
In terms of potential remedy for the appellant, we are asked the tribunal to read regulation 5 UC Regs as if the words “up to, but not including, the 1st September following their 19th birthday” were omitted so as to avoid a breach of the appellants’ human rights.
The Tribunal's Reasoning
The tribunal judge did not accept the argument that the policy was irrational, stating that the concept of irrationality connoted a review jurisdiction that was outside the jurisdiction of the tribunal. With regard to the discrimination argument, the tribunal held that the payment of UC was not within the ambit of Article 8 in this case, and that A1P1 did not apply in the circumstances. The decision stated that A2P1 was not relevant, as it was the son's education that was affected, not the appellant's.
What can a claimant in a similar position do?
While we were not successful in this case, and do not intend to appeal to the Upper Tribunal, this decision does not set a binding precendent and so will not prevent other claimants submitting appeals on this issue. A claimant in a similar position could therefore make a request for a mandatory reconsideration of the decision. It is likely that the DWP will uphold the original decision, at which stage the claimant could appeal to the First-tier Tribunal on similar grounds as above. If the young person in the case has an illness or disability that contributed to them taking longer to complete their non-advanced education, an additional ground of discrimination against people with disabilities, in breach of Article 14 read with Article 8 and A1P1, should be included.
Whether or not it is appropriate to bring an appeal may also depend on the precise nature of the education course the young person is enrolled on, as it may be that they are able to claim UC in their own name, by virtue of the fact they are not classed as ‘receiving education’ for the purposes of regulation 12 UC Regs. An example of such courses might include ‘life skills’ courses, or a basic English language course for those whose first language is not English. The key when considering whether a course falls within regulation 12 will be to look both the level of the course and also whether it would be considered incompatible with work related requirements (see regulation 12(4) UC Regs).