Three month wait for UC LCWRA element not applicable to claimant member of mixed age couple who reached pensionable age before claiming UC

PR v Secretary of State for Work and Pensions [2023] UKUT 290 (AAC)

Current status

Judgment of the Upper Tribunal was given on 29 November 2023 in favour of PR. The SSWP did not appeal further and the decision of the Upper Tribunal is final. 

Overview

CPAG represented the appellant, PR, in her appeal against the Secretary of State for Work and Pensions to the Upper Tribunal. The First Tier Tribunal had refused PR’s appeal in which she argued that applying the three month waiting period before she was paid the LCWRA element discriminated against her contrary to Article 14 of the ECHR read with Article 1 to the First Protocol. She also argued for backdating of the UC award to the date after her ESA expired. The FtT refused her appeal without giving reasons as to why it rejected her human rights arguments.

PR sought and was granted permission to appeal to the Upper Tribunal. In a judgment of 29 November 2023, the Upper Tribunal set aside the FtT’s decision as being given in error of law. It held that entitlement to a LCWRA element of UC falls within the ambit of Article 1 Protocol 1 ECHR. The SSWP accepted that there was a difference in treatment on the basis of status (in this case age), that could not be justified in Regulation 28(1) of the Universal Credit Regulations. However, he objected to the argument that a legally enforceable right to receive a welfare benefit (in this case the LCWRA element of UC) is a ‘possession’ for the purposes of A1P1, so as to attract protection against discrimination under Article 14 ECHR.

The UT held that PR’s right to receive the LCWRA element of UC was indeed a ‘possession’ within the meaning of A1P1 meaning, meaning that regulation 28 had discriminated against PR on the basis of her age. The UT also held that as PR had not been notified that her ESA was ending she could not reasonably have been expected to claim UC before she did, her UC award should be backdated to the day after her ESA ended.

Background facts

PR has a number of serious and longstanding health problems. From 6 August 2014, she was awarded employment and support allowance (ESA), with the support component. This was based on her having both limited capability for work (LCW) and limited capability for work-related activity (LCWRA). Her ESA award included the couple rate standard allowance because her partner lived with her.

On 18 October 2020, PR reached her pensionable (or retirement) age. As a result of her reaching her pensionable age, she ceased to be entitled to ESA. Her last day of entitlement to ESA was 17 October 2020.

In a letter dated 22 October 2020, the Secretary of State for Work and Pensions (SSWP) wrote to the appellant to tell her that she was not entitled to ESA from (and including) 18 October 2020. It stated (wrongly) that she should claim retirement pension instead of ESA. This was not accurate as PR’s partner was below pension age. Instead, PR and her partner were instead entitled to make a joint claim for Universal Credit (UC), which they did on 26 October 2020.

PR’s UC claim resulted in a decision awarding UC from 26 October 2020, and it was also accepted that she had LCW and LCWRA from that date. However, in reliance on regulation 28 of the Universal Credit Regulations 2013 (UC Regs) (also referred to as the “relevant period requirement” or “three month delay rule”), the LCWRA element was only awarded three months after the claim, with effect from 26 January 2021.

PR appealed against the application of the three month delay before the LCWRA element became payable. PR also argued that her claim should be backdated to 18 October 2020, as she had not been notified that her ESA was ending and that she could not have reasonably been expected to make her claim for UC earlier than she did.

Upper Tribunal judgment

Read the Upper Tribunal’s Judgment

Upper Tribunal Judge Wright set aside the decision of the First-tier Tribunal (FtT) on 7 October 2021 on the basis that it had been made in error of law. Judge Wright said the FtT’s “wholesale failure” to deal with the appellant’s human rights arguments in substance was an “abnegation of its judicial duty."

The SSWP accepted that the appellant was being discriminated against on the basis of her age by there not being an exception to the three month delay rule found in regulation 28(1) of the UC Regs to cover her age and circumstances. The sole area of contention in this case concerned the ambit of Article 1 Protocol 1 ECHR (A1P1), in particular, whether a legally enforceable right to receive a welfare benefit (in this case the LCWRA element of UC) is a possession for the purposes of A1P1 so as to give rise to protection against discrimination under Article 14 ECHR.

Previously, in the landmark judgment Stec v United Kingdom (2005) 41 EHRR SE 18, the European Court of Human Rights (ECtHR) had found that legislation providing for the payment as of right of a welfare benefit "must be regarded as generating a proprietary interest” falling within the ambit of A1P1. This included “condition[s] of entitlement” to such rights. In this case, the SSWP argued that the three month delay rule is not a “condition of entitlement” to Universal Credit within the meaning of the test set out in Stec, on the basis that it related to “the mechanism and timing of payment” of, rather than entitlement to, the LCWRA element. Thus, it did not fall within the ambit of A1P1.

Judge Wright held that PR’s entitlement to receive the LCWRA element notwithstanding the discriminatory rule in regulation 28 of the UC Regs does fall within the ambit of A1P1. The relevant consideration is not a “narrow and technical” interpretation of a particular “condition of entitlement” but the substantive effect of such a rule on the claimant receiving their entitlement to the benefit in issue. In this case, PR was entitled to UC including the LCWRA element, but was denied receipt of that LCWRA element for three months on the basis of regulation 28 of the UC Regs when others in relevantly similar situations who were not of pensionable age received that LCWRA element immediately. In other words, regulation 28 did not only affect how and when PR was paid the LCWRA element, but whether she received the LCWRA element for the first three months of her UC claim at all. In reaching this conclusion, Judge Wright referred to R(RJM) v SSWP [2008] UKHL 63; [2009] 1 AC 311) as well as the statement of Lord Justice Leggat in the Court of Appeal case SC ([2019] EWCA Civ 615; [2019] 1 WLR 5687) on the ambit of A1P1 when read with Article 14 ECHR: the test is “whether, but for that condition, SC… would have had a right, enforceable under domestic law, to receive the benefit in question.”

Once the ambit point was decided it was not necessary for the UT to conduct further analysis to establish unlawful discrimination, because the SSWP conceded PR’s “status” and that she was in a “relevantly similar situation” to a person under pension age moving from ESA to UC who has been accepted as having LCWRA in their ESA award. The SSWP accepted he had no justification for the difference in his treatment of PR and people in the comparator group. Judge Wright therefore found that regulation 28(1) (and to the extent that it is necessary, regulation 28(2)) of the UC Regs discriminated against the appellant on the basis of her age, contrary to her rights under Article 14 when read with A1P1 of the ECHR. The offending part of regulation 28 must therefore be disapplied (which, again, was accepted by the SSWP). The result of this is that the appellant’s award of UC had to include the LCWRA element from and including 26 October 2020.

Finally, Judge Wright held that PR’s UC claim should be backdated to 18 October, on the basis of Regulation 26(2) and (3)(a) of the UC (C&P) Regs. PR was not told in advance that her award of ESA would end on a future date and that she should claim any alternative on the day after her ESA ended (regulation 26(3)(a) UC Regs).

What can a claimant in a similar position do?

The judgment will be relevant where a claimant member of a mixed age couple was previously entitled to ESA with the ‘support’ component, reached pensionable age (thus ceasing to be entitled to ESA), and then subsequently applied for Universal Credit. In these circumstances, the LCWRA element should be awarded from the day that the claimant’s UC claim is accepted, rather than after a three month delay. 

Comment from CPAG 

Advisers seeking permission to appeal a decision of the FtT on the basis that it has failed to engage with their clients’ human rights arguments may find paragraphs 6 to 10 of this judgment particularly helpful. Judge Wright clearly sets out the basis for the FtT’s duty to consider claimants’ human rights arguments: first, the tribunal has a duty to provide adequate reasons, which includes the tribunal explaining its reasoning on the principal issues that arise on the appeal – this applies to cases where human rights are a principal issue (and even more so in cases where they are the principle issue). Second, sections 6(1) and (3)(a) of the Human Rights Act 1998 place an additional obligation on the FtT to work out whether the decision it makes on an appeal will breach an appellant’s rights under the ECHR. It is insufficient to simply say that a decision is not discriminatory and does not contravene a claimant’s rights under the ECHR without any engagement with their human rights arguments, even if such arguments are novel and difficult and the tribunal does not have assistance from the Secretary of State.  

Further resources

See CPAG Welfare Bulletin 298, February 2024, pg 12: PR v SSWP [2023] UKUT 290 (AAC) (For subscribers)