Social Security Case Law - Spring 2024

Headnote

Loss of enhanced disability protection following natural migration to Universal Credit.  Failure to provide enhanced disability protection after migration was unlawful.  DWP to redecide entitlement on a lawful basis.

Background

The claimant had been in receipt of income based employment and support allowance, which included the severe disability premium and enhanced disability premium, housing benefit, and child tax credit since 2016 whilst living in Scotland.  The Applicant then moved to England in 2018.  The Applicant sought advice from ESA and UC helplines and was advised that she could remain on IRESA until UC was rolled out to all claimants.  However, the claimant’s new residence was in an area was in a UC ‘digital area’ and as a result the claimant could no longer claim IRESA or housing benefit and had to make a claim for UC instead.

The claimant applied for UC from her new address, and she was award UC at a rate of £1246.53 for each assessment period.  A year later in October 2019 a decision maker revised the decision of August 2018 with the result that the claimant was entitled to receive a further £210 per assessment period from the date of her Universal Credit claim in respect of the severe disability premium she had received while entitled to IRESA.  The additional award reflected a flat rate form of transitional protection was introduced as a response to the TP litigation for claimants who had previously been in receipt of the severe disability premium and who had naturally migrated to Universal Credit.

The claimant appealed the decision of October 2019 on the basis that – the further award of £120 notwithstanding – her Universal Credit award was still less than her legacy benefit award had been.  The FfF dismissed the claimant’s appeal.  The claimant then appealed to the Upper Tribunal.

Legacy Benefit – TP Litigation

Both of the following cases found that the failure to protect the income of severely disabled claimants migrating to Universal Credit was unlawful:

• TP and AR, R (On the Application of) v Secretary of State for Work and Pensions [2018] EWHC 1474 (Admin) (TP (No1)) and
• TP AR and SXC, R (On the Application of) v Secretary of State for Work and Pensions [2019] EWHC 1116 (Admin) (TP(No 2)).

The cases were upheld by the Court of Appeal in AR & SXC, R(On the Application of) v Secretary of State for Work and Pensions [2020] EWCA Civ 37.

As a result of the findings in these cases, the DWP issued the Universal Credit (Managed Migration Pilot and Miscellaneous Amendments) Regulations 2019 which amended the Universal Credit (Transitional Provisions) Regulations 2014.  The amendments introduced a ‘transitional payment’ to compensate claimants who were in receipt of the severe disability premium as part of their legacy benefit award and who moved to Universal Credit as a change of circumstances.

A further High Court case held that the failure to compensate claimants who migrated to Universal Credit for loss of their enhanced disability premium and child tax credit disabled child element was unlawful – R (on the application of) TP and AR [2022] EWHC 123 (Admin) (TP (No 3)).

Legal Issue

Whether it was contrary to Article 14 ECHR to fail to provide transitional protection to a claimant in respect of the ‘cliff edge’ withdrawal of her EDP when she ‘naturally migrated’ from legacy benefits onto Universal Credit.

Decision

The UP allowed the claimant’s appeal and set aside the Secretary of State’s decision of October 2019.  The UP found that the case is ‘on all fours with TP (No 3).  The Secretary of State is to redecide on a lawful basis the claimant’s entitlement to Universal Credit.

In paragraph 27, the UP notes that the effect of TP (No 3) was that:

‘regulation 63 and Schedule 2 of the Universal Credit (Transitional Provisions) Regulations 2014, ….as originally enacted, unlawfully discriminate against the Claimants contrary to Article 14 ECHR as read with A1P1 by failing to provide any transitional relief in relation to the loss of Enhanced Disability Premium and thereby treating the Claimant less favourably, without objective and reasonable justification , than (1) legacy benefits claimants entitled to the Severe Disability Premium who have not experienced a ‘trigger event’ compelling them to claim Universal Credit and (2) legacy benefit claimants entitled to SDP who experienced a ‘trigger event’ on or after 16 January 2019 and before 27 January 2021 (ie during the currency of the SDP Gateway).’

The Judge noted that both parties agreed with this and that the facts of the claimant’s case were ‘on all fours’ with the claimant in TP (No 3).

The Judge then rejected the claimant’s submission that following the findings in RR v Secretary of State for Work and Pensions:

‘it is possible to remedy the discrimination suffered by the claimant….by disapplying the requirement in the definition of a ‘qualifying claim’ that the person concerned be in receipt of a migration notice’.  (paragraph 48).

Instead, the Judge favoured the Secretary of State’s submissions:

• The proposed disapplication must relate to a provision of subordinate legislation which results in a breach of a Convention right. The discriminatory provision in this case is to be found in regulation 63 and Schedule 2 rather than the regulation 48, as that qualifying criterion for transitional protection has not been adjudged to involve a breach of a Convention right at any point in the TP litigation (paragraph 51 and 52).
• Gutting the substance of the definition of a ‘qualifying claim’ in the manner proposed would undermine the whole statutory scheme. In particular, it would collapse the distinction between natural migration and managed migration, a distinction which the courts upheld in the TP litigation.  (paragraph 53).

In deciding the case, the Judge relied on the claimant’s secondary submission: in the event that it was found that it was not possible to remedy the unlawfulness in the regulations by the process of disapplication, it was proposed that the appropriate remedy was for the UP to allow the claimant’s appeal and to set aside the FfT’s decision under challenge and for that decision to be remitted to the Secretary of State with a direction to re make the set aside decision on a lawful basis.  (paragraph 56).