UC transitional element erodes after claimant’s entitlement increases due to meeting overnight care condition

You can use this template if the following apply:

• Your client's UC maximum UC included a transitional element
• They were subject to the bedroom tax because they had more bedrooms in their rented home than they were allowed under the rules
• Because they need overnight care, they now satisfy the conditions for being allowed an additional bedroom for a non-resident carer (the 'overnight care condition')
• Their UC housing cost element has increased because of this and has caused the erosion of their transitional element

This template is for someone who is a social-rented sector tenant, you must adapt it if your client is a private rented sector tenant.

It is written for someone who is no longer subject to the bedroom tax. If the bedroom tax was just reduced rather than removed (because your client previously had two bedrooms more than they were allowed under the rules and now just has one bedroom more than allowed) you will need to edit the template accordingly.

The legal arguments in this template include:

1. The UC housing costs element is calculated according to the number of bedrooms it is reasonable for the renter to occupy (para 8 of sch 4 Universal Credit Regulations 2013 (‘the UC Regs’).
2. An under-occupancy deduction is made where the number of bedrooms in the accommodation exceeds the number of bedrooms to which the renter is entitled (para 36 of sch 4 UC Regs).
3. In determining the number of bedrooms to which a renter is entitled, any entitlement to an additional bedroom must also be taken into account (para 10(3)(b) of sch 4 UC Regs).
4. A claimant qualifies for an additional bedroom if they meet the overnight care condition outlined in para 12 of sch 4 UC Regs.
5. The overnight care condition was included in universal credit legislation so as to avoid discriminating against claimants - per Daly & Ors, R (oao) (formerly known as MA & Ors) v SSWP [2016] UKSC 58).
6. Regulation 55(2)-(4) of the Universal Credit (Transitional Provisions) Regulations 2014 (the ‘UC(TP) Regs’) provides for the ‘erosion’ of the UC transitional element in the event of a relevant increase being made to an award from the second assessment period onwards.
7. An increase to the housing costs element, due to meeting the overnight care condition and no longer having the bedroom tax applied, is a relevant increase as defined by reg 55(4) UC(TP) Regs.
8. It’s argued that a claimant whose transitional element is eroded in these circumstances has been unlawfully discriminated against, contrary to art. 14 European Convention on Human Rights read with art. 1 of Protocol 1 (‘A1P1’).
9. Benefit entitlement falls within the ambit of A1P1, see Stec v United Kingdom [2005] ECHR 924.
10. The  'erosion' of a transitional element when a claimant's housing costs element has increased due to the application of the overnight care condition (so as to avoid discriminating against the claimant) means the claimant is treated the same as some other claimant whose housing costs element increases for a reason other than providing an exception in order to avoid discrimination.
11. This failure to treat a disabled person that meets the overnight care condition differently compared to a person whose situation is significantly different amounts to Thlimmenos discrimination.
12. Using the approach in Thlimmenos v Greece (§46), the Tribunal should consider whether the failure to treat the claimant differently pursues a legitimate aim and, if so, whether the failure to provide an exemption to the erosion of the transitional element in these circumstances is a proportionate means of achieving that aim.
13. It is argued that there appears to be no legitimate aim, and even if there was, the lack of exemption is not proportionate given it means that the claimant does not practically benefit from the exception to the bedroom tax for those requiring overnight care, itself introduced to avoid discrimination.
14. The First-tier Tribunal should avoid the discriminatory outcome by disapplying reg.55(2) UC(TP) Regs so that the transitional element does not erode in these circumstances.

To complete this template you need the following information.

Information about your client

• name
• address
• previous addresses over the period since their UC was awarded
• national insurance number

Background facts

•  Brief details of your client's disability and care needs
• The benefits/tax credits your client was receiving immediately before their migration to UC
• The date your client claimed UC
• The date their UC assessment periods start and end
• The date(s) of any change(s) of address since their migration to UC
• The amount of their housing costs for their current and, if relevant, previous address(es)
• If they changed address, the date they notified the DWP of this
• The number of bedrooms in their home and the number they are allowed when calculating the housing costs element
• The date from which your client met the conditions for a bedroom for a non-resident carer (the 'overnight care condition'). 
  For further information about this condition see our Welfare Benefits and Tax Credits Handbook (for subscribers). The number of bedrooms you are allowed]  
• The date your client requested a mandatory reconsideration of the decision on the erosion of their transitional protection
• The date your client submitted the appeal

Information about the decision(s)

• The date your client's legacy benefit ended on managed migration to UC
• The date of the DWP's decision to award award your client UC
• The date from which the DWP applied the bedroom tax to their UC housing costs element
• The amount of the housing costs element awarded to your client from that date
• The amount of the housing costs element awarded from the date your client was allowed an extra bedroom because they met the overnight care condition
• The date of the DWP's decision that your client's UC transitional element should be ‘eroded’ as a result of an increase in their housing costs element caused by the removal of the bedroom tax (or reduction in the bedroom tax) due to them meeting the overnight care condition
• The amount by which your client's transitional element was eroded as a result of this change
• The date of the mandatory reconsideration notice your client received after requesting a mandatory reconsideration of the DWP's decision