FL v Secretary of State for Work and Pensions (UC)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Wikeley |
| Neutral Citation | [2024] UKUT 6 (AAC) |
| Published date | 01 February 2024 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
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FL v Secretary of State for Work and Pensions (UC)
[2024] UKUT 6 (AAC)
IN THE UPPER TRIBUNAL Appeal No. UA-2021-001442-UOTH
ADMINISTRATIVE APPEALS CHAMBER
On appeal from the First-tier Tribunal (Social Entitlement Chamber)
Between: F.L. Appellant
- v –
Secretary of State for Work and Pensions Respondent
Before: Upper Tribunal Judge Wikeley
Hearing date: 13 November 2023
Decision date: 11 December 2023
Representation:
Appellant: Mr Paul Skinner of Counsel, instructed pro bono by FRU
Respondent: Mr Jack Anderson of Counsel, instructed by GLD
DECISION
The decision of the Upper Tribunal is to allow the appeal. The decision of the
First-tier Tribunal made on 21 October 2020 under file number SC142/19/01658 was
made in error of law. Under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and
Enforcement Act 2007, I set that decision aside and re-make the decision of the First-
tier Tribunal as follows:
The claimant’s appeal to the First-tier Tribunal is allowed.
The Secretary of State’s decision of 25 October 2019 is set aside as being
unlawfully discriminatory. The case is on all fours with TP (No.3).
It will now be for the Secretary of State to redecide on a lawful basis the
claimant’s entitlement to universal credit for the period from 13 July 2018.
FL v Secretary of State for Work and Pensions (UC) [2024]
UKUT 6 (AAC)
Case no: UA-2021-001442-UOTH
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REASONS FOR DECISION
The issues raised by this appeal
1. This is a case which is, in the most general of terms, about a claimant whose
entitlement to benefit fell when she was required to claim universal credit as
compared with her previous entitlement under the so-called legacy benefits.
2. In narrower terms, the case concerns a claimant who was not provided with any
transitional protection, contrary to Article 14 of the ECHR, in respect of the ‘cliff
edge’ withdrawal of her enhanced disability premium (EDP) when she ‘naturally
migrated’ from legacy benefits onto universal credit (UC).
3. The UC regime differentiates between ‘natural migration’ and ‘managed
migration’. The former is where a claimant has to move from legacy benefits to
UC because of a change in their circumstances. Natural migration therefore
occurs randomly. In contrast, managed migration is planned, in that it applies
only where a claimant receives a migration notice from the Secretary of State
and is (in effect) required to transfer to UC.
4. The distinction between the two forms of migration to UC is important in various
ways. At the risk of gross over-simplification, one such distinction is that a
claimant who is subject to managed migration should receive an individualised
form of transitional protection to compensate for any cash loss in benefit
occasioned by their (effectively mandatory) transfer to UC. In contrast, a
claimant who is subject to natural migration may at best receive a flat-rate
amount of transitional protection which can still leave them financially ‘out of
pocket’, as happened to the claimant in this appeal. The significance of this
distinction can be especially acute for those claimants previously in receipt of
the EDP and severe disability premium (SDP) under their now-terminated
legacy benefit awards.
The background to the appeal to the First-tier Tribunal
5. The claimant had since August 2016 been in receipt of income-based
employment and support allowance (IRESA) and child tax credit, two of the
legacy benefits replaced by UC, while living in Scotland. She also claimed
housing benefit from her local authority. However, on 13 July 2018 she moved
to an address in England in order to be closer to her family, as she required
support with mental health issues. Before moving she sought information from
both the ESA and UC helplines and was advised (wrongly and several times)
that she could remain on IRESA until UC was ‘rolled out’ to all claimants in her
new postcode area. In fact, her new address was in a UC ‘digital’ area; as such,
she was eventually advised (correctly) that she could no longer claim IRESA or
housing benefit at her new address and had to make a claim for UC instead.
6. On 28 July 2018 the claimant applied for UC from her new address as a single
person with one child dependant. Her UC claim was subsequently backdated to
the date she had moved address (i.e. 13 July 2018). In her claim she explained
that she suffered from anxiety, depression, OCD and IBD and was in receipt of
personal independence payment (PIP). None of this is in dispute, and I
recognise with regret that the long drawn-out nature of the current proceedings
will not have helped her mental health.
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