Erosion of disabled carer’s TSDPE due to addition of LCWRA element and removal of carer element

• Overview
• Background
• Upper Tribunal decision
• Remedy
• What can claimants in a similar position do?

Overview

CPAG represents the claimant, MJ, in her response to an appeal by the Secretary of State for Work and Pensions (“SSWP”) to the Upper Tribunal (“UT”). MJ is a carer who is herself disabled and was previously in receipt of employment and support allowance (“ESA”) with the severe disability premium (“SDP”). She received ESA whilst she appealed against a decision she was fit for work but that ended when the Tribunal dismissed her appeal. She then had to claim universal credit (“UC”), which was awarded with the  carer element and a transitional SDP element included. Subsequently, the SSWP determined that MJ had limited capability for work and work related activity (“LCWRA”). The addition of the LCWRA element resulted in the removal of MJ’s carer element and also eroded MJ’s TSDPE in its entirety meaning she was worse off following being found to have LCWRA. 

The UT held in a decision dated 29 January 2025 (issued 10 February 2025) that MJ had been unlawfully discriminated against in breach of Article 14 ECHR read with Article 1 to the First Protocol. Under s. 3 Human Rights Act 1998, the UT was able to interpret the relevant secondary legislation to avoid the breach of MJ’s rights, and, alternatively, was able to disapply part of the offending provision.

Background

The respondent, MJ, has a number of serious and longstanding health problems. She began caring for her disabled adult son in 2017. 

MJ was previously in receipt of ESA with the SDP. MJ claimed UC as a ‘natural migrant’ to UC. Her UC award included a Carer Element (“CE”) as well as a transitional SDP amount that, on conversion day, converted into a TSDPE. 

Following a Work Capability Assessment, the SSWP determined that MJ had LCWRA. Consequently, the SSWP added a LCWRA element to her UC, which resulted in the removal of her CE as well as the erosion of the TSDPE in its entirety. MJ’s UC award went from being £975 from the previous assessment period to being £879.98. 

MJ was successful before the FTT. The SSWP appealed the FTT decision to the Upper Tribunal and that appeal was heard on 30 October 2024.

Upper Tribunal decision

The UT found that MJ had been unlawfully discriminated against as a result of her TSDPE being fully eroded, in breach of her rights under Article 14 (the right not to be discriminated against) read with Article 1 to the First Protocol (the right to peaceful enjoyment of possessions, including welfare benefits) of the European Convention on Human Rights. 

MJ’s statuses as a carer and as someone in receipt of a transitional element who undergoes a change of circumstances were not in dispute and the tribunal accepted that there was “plainly a relevant status” [63]. Similarly, there was no issue that MJ’s claim was clearly within the ambit of Article 14 and A1P1 [86]. 

As regards the analogous comparators and differential treatment faced by MJ as compared to those comparators, the UT accepted that MJ is:

1. Treated less favourably than someone who is not a carer who subsequently gets LCWRA; and
2. Treated less favourably than someone who is receiving a transitional element and has LCWRA, who subsequently becomes a carer.

In considering whether this differential treatment faced by MJ was justified, the UT said:

“The Secretary of State has, yet again in the context of transitionally protected claimants, completely failed to address, still less justify, the differential treatment of which complaint is made. Instead [the SSWP’s] submissions are largely dedicated to defending an irrelevant issue, namely why a person cannot receive the carer element and the LCWRA element at the same time. But that is not MJ’s complaint. Her complaint is that she is treated less favourably than other transitionally protected claimants, who are not subject to a reduction in benefit entitlement by virtue of a change in their circumstances which increases their needs.” 

Upper Tribunal Judge West went on to note that there is nothing to explain why someone in the position of MJ should be subject to a cliff-edge (which occurred when her needs increased), when no one else in a comparable position is. Further, UT Judge West considered a fair balance had not been struck between the severity of the effects upon MJ and the contribution which the measure under challenge makes to the SSWP’s stated aims of her transitional protection policy.

Remedy

Having found that MJ’s rights had been breached, the UT accepted that, in accordance with section 3 of the Human Rights Act 1998, it could avoid the discriminatory effect of the secondary legislation by reading the “the sum of any relevant increases” in regulation 55(2)(c) of the Universal Credit (Transitional Provisions) Regulations 2014, read with reg 55(4), as meaning the actual increase in award attributable to elements included in the award (here the difference between the LCWRA element and the carer’s element) [129]. 

With reference to RR v SSWP [2019] UKSC 52, [2019] 1 WLR 6430, which established that a tribunal can disapply a provision of secondary legislation if it is incompatible with Convention rights, the UT also decided that it was open to it, alternatively, to disapply or “blue-pencil” the words “any of the amounts that are included in” in regulation 55(4) of the UC (TP) Regs [130] – [135]. 

Both routes achieve the same result and mean that MJ’s TSDPE is eroded by the difference between the Carer’s Element and the LCWRA element rather than by the full amount of the new LCWRA element. MJ is therefore left with £95 transitional element per month, rather than it being wiped out altogether. 

MJ was represented by Child Poverty Action Group in the Upper Tribunal. Julia Smyth of Landmark Chambers was instructed by CPAG to represent MJ in the Upper Tribunal.

What can claimants in a similar position do?

The SSWP has three months from 10 February 2025 to apply for permission to appeal to the Court of Appeal from the Upper Tribunal. 

Assuming that the UT decision is final, the effect of the decision in SSWP v MJ [2025] UKUT 035 (AAC) may depend on the stage a claimant’s case was at on 29 January 2025, the date of the Upper Tribunal’s decision.

Claimants in either of the following two groups should be able to have the judgment applied in full to their UC awards (meaning that when recognised as having LCWRA, their transitional element should only be reduced by the difference between the LCWRA element which is added and the CE element which is removed):

• Group 1: claimants who have already passed through mandatory reconsideration stage:

This group applies to claimants who had already, by the date of the UT decision, had a decision reducing their UC award because their transitional protection was reduced by the full amount of the LCWRA element despite the fact that otherwise their maximum amount of UC only increased by the difference between LCWRA they gained and CE they lost and who have, also by the date of the UT, also been refused mandatory reconsideration of such a decision.

Claimants in Group 1 should, if they have not already, file an appeal against the decision which reduced their UC. On appeal the FTT should simply apply the SSWP v MJ judgment with the effect that the reduction in their UC will be changed from when it first occurred - UC will instead be amended by reducing the transitional element only by the difference between LCWRA element they gained and the CE element they lost.

• Group 2: claimants with CE who are accepted as having LCWRA from some date on or after 29 January 2025:

This group applies to claimants who are accepted as having LCWRA and being entitled to the LCWRA element only from some date on or after 29 January 2025. 

Claimants in Group 2 should only have their transitional element reduced by the difference between the LCWRA element which is added and the CE which is removed.

For other claimants, then things are potentially more complicated due to the effect of the “anti testcase” rule in s.27 Social Security Act 1998 and its interaction with the Human Rights Act 1998. 

Please get in touch for further advice via CPAG's advice services or relevant access to justice project if you are an adviser assisting a claimant:

• whose UC was reduced in a way which SSWP v MJ now makes clear was unlawful, for a period prior to 29 January 2025 and who had not already been refused a revision of that decision before 29 January 2025; or
• who was recognised as having LCWRA only after 29 January 2025 but where entitlement to the LCWRA element would be due to commence from some day before that date.

If the claimant is eligible for legal aid they may also wish to seek legal advice.