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?

[Updated 28 October 2025]

The DWP has confirmed that it does not intend to appeal to the Court of Appeal from the Upper Tribunal. DWP disclosed its instructions to Decision Makers further to a Freedom of Information Act request.

Following that request, CPAG wrote to the DWP explaining that we believed the guidance was in error- insofar as it purported to make whether a First-tier Tribunal could give a remedy, to a claimant whose UC was eroded in the manner MJ reveals is unlawful, dependent on the date on which the Decision Maker considered whether to revise the unlawful decision. The DWP in reply correspondence accepted that the points CPAG made were correct and provided us with updated guidance.

Following the updated guidance, the advice to claimants is now much more straightforward:

Claimants whose UC transitional element was reduced by full amount of LCWRA element from some date prior to 29 January 2025:

• Where an “any grounds” revision application is made within 13 months of the original decision, the Decision Maker will be unable to revise the decision in the claimant’s favour due to the effect of s.27 of the Social Security Act 1998 (the “anti-testcase rule”). 
   
• However, any appeal lies not against the refusal to revise but against the original decision to reduce the UC transitional element by the full amount of LCWRA element. A First-tier Tribunal deciding such an appeal is not caught by s.27 as the decision under appeal to it was made before 29 January 2025. This Tribunal can give a full remedy- so that UC transitional element is only reduced by the difference between LCWRA element and carer element effective from when LCWRA element was added.

Claimants whose UC was reduced by full amount of LCWRA element but not for a period that pre dates 29 January 2025:

• Decisions like this are simply wrong- the Decision Maker should have applied SSWP v MJ and only eroded the transitional element by the excess of LCWRA over carer element.
   
• On revision (including official error revision) the Decision Maker should reverse their decision (and if they do not then on appeal the First-tier Tribunal should do so.

As time goes advisers may come across people who had a decision eroding their transitional element in the unlawful way the commenced for some period prior to 29 January 2025 and who did not seek a revision of that decision within 13 months of it being given. Such claimants would probably not now be able to seek official error revision of the decision to erode their UC transitional element by an unlawful amount (as the unlawfulness was arguably only shown to be such by the MJ decision and therefore that will not count as an official error). Whether the SSWP would agree to supersede with effect from 29 January 2025 in such a case is not clear- advisers with clients in this situation should get in touch for further advice via CPAG's advice services or relevant access to justice project.