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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> TP AR & SXC, R (On the Application Of) v Secretary of State for Work And Pensions (Rev 1)  EWHC 1116 (Admin) (03 May 2019)
Cite as:  WLR(D) 267,  PTSR 2123,  EWHC 1116 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the Application of
TP AR & SXC
|Secretary of State for Work and Pensions
Equality and Human Rights Commission
EDWARD BROWN AND JACK ANDERSON (instructed by GOVERNMENT LEGAL DEPARTMENT) for the Defendant
CHRISTOPHER BUTTLER (instructed by the EQUALITY AND HUMAN RIGHTS COMMISSION) for the Intervener (by written submissions only)
Hearing dates: 12th & 13th March 2019
Crown Copyright ©
Mr. Justice Swift
B. The Facts
"44. The mechanism by which this is achieved is complex but is as follows. Regulation 5 of the Transitional Regulations provides that a claimant is not entitled to certain benefits, including Income Support and Housing Benefit. Regulation 6 provides that a person may not make a claim for Income Support or Housing Benefit except that is provided in that regulation. If the claimant is not in receipt of Housing Benefits and seeks assistance with housing costs, and is not within an exception, it appears that he must then make a claim Universal Credit (as he is prohibited from making a claim for Housing Benefits).
45. In terms of the person who moves within a Local Housing Authority Area, the position appears to be dealt with (all be it curiously) in Regulation 6(3) of the Transitional Regulations. That provides that a person makes an application for a benefit if he takes any action which results in a decision on a claim being taken under certain regulations. In other words Regulation 6(3) states what constitutes a (prohibited) application under Regulation 6(1) rather than, as Regulation 6(1) contemplates, defining what constitutes an exception to the prohibition on applying for Housing Benefit. Notifying a Local Housing Authority who is currently paying Housing Benefit of a change of circumstances for example, that the person has moved house does not, I was told, involve "a decision on a claim being required". Only a move to a new Local Housing Authority area and an application to that new Authority would result in a decision on a claim being required. The person who moves house within a Local Housing Authority area therefore may apply for the continued payment of Housing Benefits (rather than having to apply for Universal Credit) and continues to receive income related support under the existing welfare regime, that is, he continues to receive the basic allowance, the SDP and the EDP."
C. Other cases concerning treatment of severely disabled persons under the Universal Credit welfare system.
"80. The SSWP's case is that she and her ministers have specifically considered the apparently arbitrary disadvantage visited on people like these Claimants caring alone for a child with severe disabilities in the case of TD, and living alone with severe disabilities in the case of PR resulting from an error in their benefits made by her Department. She has decided as a matter of policy to withhold Transitional Protection from claimants in respect of whom she has wrongly ceased legacy benefits notwithstanding an expressed commitment when UC was introduced to the effect that no one was to suffer hardship at the point of transition to the new system. It is the evidence of her Department's consideration and her policy decision that in my view obliges me to find that the test of justification is satisfied here."
D. The SDP Gateway Regulations and the Managed Migration Pilot Regulations
"4A. Restriction on claims for universal credit by persons entitled to a severe disability premium
No claim may be made for universal credit on or after 16th January 2019 by a single claimant who, or joint claimants either of whom
(a) is, or has been within the past month, entitled to an award of an existing benefit that includes a severe disability premium; and
(b) in a case where the award ended during that month, has continued to satisfy the conditions for eligibility for a severe disability premium."
"What is the problem we are trying to solve?
- Claimants who are eligible for the severe disability premium in Legacy Benefits do not have this replicated in Universal Credit and will therefore see a loss when they move naturally to Universal Credit. This is already attracting negative publicity, which will only increase as UC continues to build volumes
- The issue is resolved when we Manage Migrate as these customers will receive transitional protection.
- You asked us to consider what could be done to address this issue and what the consequential impacts on the legislative timetable and delivery plan would be."
" that we proceed with an option for stock cases based upon three broad rates of payment to the groups which are determined as to still need assistance at the point the relevant regulations come into force."
"6. Further detail on the calculation of these rates is at Appendix B, but to note are
6.1 They deliberately represent rounded figures to reflect that the aim is not to provide a precisely calculated payment which is and looks like a form of transitional protection. Rather, they are targeted amounts aimed at the group we are determining which would still need some kind of additional assistance prior to the managed migration regulations coming into force;
6.2 The lower rates for those getting UC LCWRA reflect that UC LCWRA element is considerably higher than the corresponding amount paid to those on the ESA Support Component, as this formed a key part of the design of the UC, deliberately recycling money to target the most severely disabled.
6.3 There is only one rate for the couples who got the higher rate of SDP in Legacy, as we consider it highly unlikely that in such cases, where both members of the couple were deemed as requiring assistance with care costs in legacy, that neither partner would be in the UC LCWRA group;
6.4 Should one member of the couple mentioned in paragraph 6.3 have acquired a carer since the natural migration, then they would be treated the same as a couple who go the lower rate SDP in Legacy.
7. The calculation methodology does not include amounts in respect of Enhanced Disability Premium (EDP). This is mainly because;
7.1 We do not want to set a precedent for inclusion of the whole of the EDP client group, outside of those who are also entitled to SDP; and
7.2 As Appendix A shows, inclusion of EDP would increase the cost of the protection considerably."
" the monthly SDP Transitional Provisional payment rates reflect the extra financial support that has been provided through the more generous limited capability for work and work related activity addition."
The letter also referred to the Transitional Protection to be provided to what became the Regulation 4A group. However, the letter did not set out reasons for the difference in treatment between these two groups of severely disabled persons.
(1) Article 14
(1) Whether there is a legitimate aim for the difference in treatment contained in the measure, sufficiently important to justify the limitation of a Convention right.
(2) Whether the measure is rationally connected to the legitimate aim.
(3) Whether a less intrusive measure could have been used.
(4) Whether, bearing in mind the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim, a fair balance has been struck between the rights of the individual and interests of the community.
This approach has been stated and restated in various decisions of the higher courts, for example in Bank Mellat v HM Treasury (No. 2)  AC 700, per Lord Sumption at paragraphs 20 21, and per Lord Reed at paragraphs 68 76.
(2) The alternative contention, premised on the relief ordered by Lewis J