R (TD & Ors) v Secretary of State for Work and Pensions  EWCA Civ 618; R (TD & Ors) v Secretary of State for Work and Pensions  EWHC 462 (Admin)
Current status: Court of Appeal judgment was given on 12 May 2020. The Supreme Court refused SSWP's application for permission to appeal on 26 February 2021 and steps will now need to be taken to implement the Court of Appeal judgment.
On 12 May 2020, the Court of Appeal handed down 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 therefore would be moved to UC through managed migration and benefit from transitional protection. This difference in treatment was found by the Court to be manifestly without reasonable foundation and the Article 14 non-discrimination rights of the appellants (in conjunction with Article 1 to the First Protocol) had been breached. The SSWP applied directly to the Supreme Court for permission to appeal but that application was refused on 26 February 2021.
TD and AD
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. In February 2017, TD was told that because AD's DLA award had expired, TD's carer's allowance and consequently her income support would also end. In fact, TD had put in a renewal DLA claim for AD (which was subsequently granted).
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 no choice but to apply for UC and could not subsequently 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. Despite a deterioration in her health, DWP decided in May 2016 that she no longer qualified for PIP. Then, 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 (as well as her PIP) but could not return to legacy benefits after claiming UC, leaving her £187.95 per month worse off.
Both cases involved an initial decision on the part of the SSWP, i.e. the termination of a legacy benefit, which was then found, through the revision process, to have been wrongfully made. In both cases, CPAG challenged the subsequent refusal to allow a return to legacy benefits or to provide transitional protection in UC, on the basis that the treatment of the appellants was discriminatory under Article 14 of the European Convention on Human Rights in conjunction with Article 1 to the First Protocol (A1P1), when compared with a person who had not received a wrongful decision, or compared with a person who claims UC through managed migration and 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.
COURT OF APPEAL
The appellants appealed to the Court of Appeal which, following a hearing on 23 April 2020, 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 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 A1P1.
The Court of Appeal, 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. 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 the renewed application for permission to appeal to the Supreme Court.
Permission to appeal
The SSWP applied to the Supreme Court for permission to appeal in June 2020 (such permission having been refused by the Court of Appeal on 21 May 2020). The application was refused on 26 February 2021 marking the end of these legal proceedings and the SSWP will now need to take steps to implement the Court of Appeal judgment.