Social Security Case Law - Spring 2024

Headnote

Universal Credit transitional protection.  Erosion of Universal Credit transitional protection when claimant moved from specified accommodation to mainstream accommodation breached her Article 14 ECHR rights.

Background

This appeal concerns the intersection between Universal Credit and Housing Benefit. It is about what happens to the transitional protections enjoyed by a claimant who has migrated from a legacy benefit to Universal Credit when they move from a type of accommodation funded by a local authority by way of Housing Benefit (in this case, specified accommodation) and which does not attract the Housing Costs Element of Universal Credit, to another type of accommodation (in this case, mainstream rented accommodation), which is funded by the Housing Costs Element of Universal Credit.

The claimant was in receipt of income related employment and support allowance from November 2016 – June 2018 with the severe disability premium.  The claimant made a claim for Universal Credit in June 2018 as a ‘natural migrator.’  This was triggered by her moving from one local authority to another.  In September 2019 the Secretary of State decided that the claimant was entitled to transitional severe disability payment of £285 for each assessment period between June 2018 and September 2019, and thereafter each month.

In September 2020 the claimant moved again form mainstream accommodation into specified accommodation.  The claimant notified the DWP of this move which was a relevant change of circumstances.  In October 2020 the Secretary of State converted the transitional severe disability payment to a transitional element  (£285 per week) which would be included within the claimant’s monthly Universal Credit award, rather than a standalone payment.

In May 2021 the claimant moved out of her specified accommodation into mainstream rented accommodation which represented another relevant change of circumstances which the claimant notified to the DWP.  In July 2021 the Secretary of State decided that, as a result of the claimant’s move, she was entitled once again to a Housing costs element in her award of Universal Credit to cover her monthly rental and service charge.  As a consequence, the claimant’s award of the transitional element of Universal Credit was reduced to nil in accordance with regulation 55 of the 2014 regulations because the additional amount awarded for the housing costs element (£369.37) exceeded the amount of the transitional element (which was £285 per week).

The claimant successfully appealed to the FfT on the basis that the erosion of the claimant’s transitional element of Universal Credit to nil required by regulation 55 of the Transitional Regulations was unlawfully discriminatory against the claimant, and ‘regulation 55 should therefore be disapplied.  The Secretary of State appealed to the UP.

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.

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 the operation of regulation 55(2) of the Universal Credit (Transitional Provisions) Regulations 2014 (the “Transitional Regulations”) to erode the Claimant’s transitional protection in its entirety in these circumstances involved an unlawful breach of the Claimant’s rights under Article 14, read with Article 1 Protocol 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the “Convention”);

Whether the First-tier Tribunal judge who determined the Claimant’s appeal in respect of her entitlement was right to disapply that regulation.

Decision

The Upper Tribunal dismissed the Secretary of State’s appeal and held that the FfT was entitled to decide that the appropriate remedy for the breach of the claimant’s ECHR rights was to disapply regulation 55 of the Transitional Regulations.

• The Judge accepted that the claimant had ‘other status’ for the purposes of Article 14 of the ECHR. The Judge stated:

‘…..the claimant’s case for having a ‘status’ is considerably stronger than the cases of TP and AR because the claimant’s move between specified accommodation and mainstream accommodation was more closely related to her personal or identifiable characteristics and her status as a severely disabled person’ (paragraph 86).

‘a move into, or out of, specified accommodation (or temporary accommodation) from, or to, mainstream accommodation is likely to be triggered by changes in the person’s circumstances.  This would include whether they satisfy the criteria for such accommodation which typically provides significant additional support at a commensurately higher cost when compared to mainstream accommodation.  Such a move cannot properly be characterised as simply a matter of choice.’  (paragraph 87).

‘by contrast, a move from mainstream rented accommodation in one local authority to the same type of accommodation in another authority (as in the cases of both TP and AR) could occur due to any number of reasons which may be unrelated to the mover’s personal or identifiable characteristics.’ (paragraph 88).

• The judge accepted the FfT findings that the claimant was treated differently as a person moving from specified accommodation to mainstream accommodation in comparison with someone who moves from mainstream rented accommodation to another cheaper mainstream rented property:

‘that is clearly the case, because the calculation that was made upon the relevant change of circumstances (the claimant moving from specifies to mainstream accommodation) took into account her new entitlement (ie to the Housing Costs Element of Universal Credit in the amount of £366.37 per month) but it ignored what she had lost in terms of her entitlement to Housing Benefit (in the amount of £613.12 per month).  This resulted in the claimant losing the entirety of her £285 per month Transitional Element of Universal Credit in one feel swoop.  By contrast, the  calculation for a claimant who moves from mainstream rented accommodation to another cheaper mainstream rented property would take into account both the gain and the loss experienced, so they would experience no erosion at all.  For example, moving from a mainstream property with a monthly rent of £500 to another mainstream property with a rent of £400, they would be treated as having experienced no ‘relevant increase’ because the gain of £400 per month was cancelled out by the loss of £500 per month, and so any Transitional Element award would be unaffected.  Similarly, claimants moving from one specified accommodation setting to another would be treated as experiencing ‘no relevant increase’ as would claimants moving from mainstream rental accommodate to specified accommodation.  The only category treated as experiencing a ‘relevant increase’ to the full extent of their award of Housing Costs Element is those moving from either specified or temporary accommodation into mainstream rental accommodation.’ (paragraph 92).

• Whether the FfT erred in law in its approach to considering that any discrimination contrary to the claimant’s ECHR rights arising from the Secretary of State’s decision and/or regulation 55 of the 2014 regulations was objectively justified.

The Judge stated that the Secretary of State offered no evidence to show that the potentially discriminatory effect on the claimant and those sharing her status was considered before the relevant legislation was made law or that any thought was given as to how this was mitigated (paragraph 117).  The Judge further stated that the Secretary of State had not explained why, in order to achieve the legitimate aims it is necessary that those in the claimant’s position should not be afforded the same protection from cliff edge loss that the High Court held to be necessary in TP1 to protect those who experience such a loss as a result of a move from one local authority to another triggering a transition from a legacy benefit into Universal Credit (paragraph 118).  Finally, the Judge stated that:

‘the administration of social security benefits is a very complicated business, and this is relevant to an assessment of the proportionality of measures which have a discriminatory effect.  However, no evidence was adduced to demonstrate that it would be administratively complicated, burdensome or costly to identify those who share the claimant’s status and to treat them in a way which does not subject them to a cliff edge income loss, for instance by applying erosion only in circumstances where the claimant enjoys an increase in benefit payments.’ (paragraph 119).