Universal Credit, disability and transitional protection | CPAG

Universal Credit, disability and transitional protection

Date: 
02 June 2020
Issue: 
R (TD & Ors) v Secretary of State for Work And Pensions [2020] EWCA Civ 618

R (TD & Ors) v Secretary of State for Work And Pensions [2020] EWCA Civ 618

On 12 May 2020, the Court of Appeal handed down a judgment in favour of the appellants in this case. The appellants were originally in receipt of legacy benefits but had to claim universal credit (UC) when the Secretary of State for Work and Pensions (SSWP) decided that they were no longer entitled to legacy benefits and terminated their awards.  Even though those decisions were ultimately overturned on revision, the appellants were stuck on UC and received less than they would have if they had remained on legacy benefits.  The Court found that there had been a difference in treatment of the appellants compared with legacy benefit claimants who had not had any wrongful decision terminating their legacy benefit awards and who would be moved to UC through managed migration and would benefit from transitional protection. This difference in treatment was found by the Court to be manifestly without reasonable foundation and so the Article 14 non-discrimination rights of the appellants (in conjunction with Article 1, Protocol 1) had been breached. The SSWP has been refused permission to appeal to the Supreme Court by the Court of Appeal.  We wait to see whether she will renew her application for permission direct to the Supreme Court.

Read the Court of Appeal judgment.

Background

The first case was brought on behalf of TD and AD, a mother and daughter. AD suffers from sickle cell anaemia and TD gave up work to care for her. AD was in receipt of disability living allowance (DLA) and, as her mother and carer, TD claimed income support (IS), carer’s allowance (CA) and child tax credit (CTC) with a disabled child element. The family’s total benefit income (excluding housing benefit) was £1,338.68 per month.

On 25 March 2017, TD’s IS stopped. She challenged the decision by way of official error revision and was successful. However, in the meantime, she had applied for UC and could not return to legacy benefits. Her UC award was £872.90 per month which, added to AD’s DLA, amounted to £1,206.13, which was £136.99 less than she would have been receiving if she had remained on legacy benefits.

The third appellant, Ms Reynolds, is a single woman with rheumatoid arthritis and spondylitis, which severely affects her mobility. She was receiving personal independence payment (PIP) and employment support allowance (ESA) on account of her disabilities. On 17 March 2017, the SSWP 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 successfully challenge the termination of her ESA but could not return to legacy benefits after claiming UC, leaving her £187.95 per month worse off.

Both cases therefore involved a decision on the part of the SSWP, i.e. the termination of a benefit, which was then found, through the revision process, to be wrongfully made. In both cases, CPAG challenged the refusal to allow a return to legacy benefits or to provide transitional protection, on the basis that the treatment of the appellants was discriminatory under Article 14 of the Human Rights Act 1998 (in conjunction with A1, P1), when compared with a person in respect of whose benefits there had not been any wrongful decision, or compared with a person who claims UC through managed migration who would be given transitional protection.

The cases were heard together in the High Court in January 2019. Mrs Justice May, hearing the case, accepted the SSWP’s submission that the SSWP “needed to do no more….than to demonstrate that proper consideration had been given to persons in the position of the Claimants”. She found that proper consideration had been given and so there was no Article 14 breach. The High Court judgment can be found here.

The appellants appealed to the Court of Appeal, which found that Mrs Justice May had erred in her approach: it was not sufficient for her to establish whether the SSWP had given adequate consideration to the question of justification for any prima facie discriminatory treatment but rather, as a matter of law, she had to consider for herself whether there was such justification, applying the manifestly without reasonable foundation test. 

Having found that the lower court judge had not approached the question of justification for the difference in treatment correctly, the Court of Appeal went on to consider for itself whether such justification had been established. Lord Justice Singh stated that reasons of cost and administrative difficulty alone were not enough to justify a difference in treatment. He also noted that the policy of paying transitional protection to managed migrants to UC demonstrated that the SSWP was prepared and able to set up such a system. The Court concluded  that the difference in treatment in this case was manifestly disproportionate in its impact on the appellants when ‘the only reason in reality why they moved from legacy benefits to UC was as a result of errors of law by the state itself’ and so was manifestly without reasonable foundation. There had therefore been a breach of the appellants’ rights under Article 14 in conjunction with A1, P1.

The Court, in making a declaration that the appellants’ rights had been violated, expressly left it to the SSWP as to how specifically to respond to address this violation and whether or not this would result in the introduction of a scheme which would benefit others who had claimed UC in similar circumstances.   Any such scheme would either need to provide a form of transitional protection or allow for a return to legacy benefits for those affected but which scheme the SSWP goes for will need to await the outcome of any renewed application for permission to appeal to the Supreme Court.