R (TP and AR) v Secretary of State for Work and Pensions

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeTHE HONOURABLE,Mr Justice Lewis
Judgment Date14 June 2018
Neutral Citation[2018] EWHC 1474 (Admin)
Docket NumberCase No: CO/5828/2017, CO/552/2018
Date14 June 2018

[2018] EWHC 1474 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

THE HONOURABLE Mr Justice Lewis

Case No: CO/5828/2017, CO/552/2018

Between:
R (TP and AR)
Claimants
and
Secretary of State for Work and Pensions
Defendant
Equality and Human Rights Commission
Intervener

Zoe Leventhal and Yaaser Vanderman (instructed by Leigh Day Solicitors) for the Claimants

Edward Brown and Nicholas Flanagan (instructed by Government Legal Department) for the Defendant

Chris Buttler (instructed by Equality and Human Rights Commission)

Hearing dates: 1 – 4 May 2018

Judgment Approved

Mr Justice Lewis THE HONOURABLE

INTRODUCTION

1

These are two claims challenging aspects of the regulations creating and implementing the system of universal credit, which is intended to replace the existing system of welfare benefits. The claimants are both individuals who, under the previous system governing welfare benefits, had been in receipt of an income related employment and support allowance (“the basic allowance”). In addition, as they met certain additional criteria, they had been in receipt of certain additional premiums (known as Severely Disability Premium (“SDP”) and Enhanced Disability Premium (“EDP”)).

2

On moving to a new local housing authority area, the claimants had to apply for universal credit which replaced both housing benefit and the former income related benefits (including the basic allowance, and SDP and EDP) which the claimants had been receiving. The amount of the standard allowance payable as part of universal credit was higher than the basic allowance formerly payable but as universal credit does not include the additional disability premiums (the SDP and EDP) the total cash payment received by way of income related support under universal credit was less than the income related support that the claimants had been receiving under the former system. The claimants received over £170 a month less as a result of the transfer to universal credit.

3

The claimants contend that the way in which the system of universal credit is constructed, in that it does not include additional disability premiums, constitutes unlawful discrimination contrary to Article 14 read with Article 1 of the First Protocol to the European Convention on Human Rights (“ECHR”). The claimants further contend that, in any event, the implementation arrangements gave rise to unlawful discrimination contrary to Article 14 read with Article 1 of the First Protocol to the ECHR as they had to apply for universal credit but there was no element of protection to reflect the difference between the amount they received under the former system and what they received by way of universal credit whereas other groups would not be treated in that way and would either continue to receive SDP and EDP or would receive an additional cash payment by way of transitional protection. The defendant denies that there is any unlawful discrimination.

4

The claimant in the first case, Mr P was granted permission to apply for judicial review on these two grounds by Lang J by an order made on 26 January 2018. Permission was refused, on the papers, to claim that the defendant had breached the duty imposed by section 149 of the Equality Act 2010 (the “2010 Act”). The claimant applies for a reconsideration of that refusal. The case involving Mr R, is brought on identical grounds. Permission has not yet been granted in Mr R's case and Lang J. ordered that his case be linked to and heard with Mr P's case. As a result, the hearing dealt with the two grounds upon which permission had been granted (the challenge to the universal credit regulations and the failure to provide any element of transitional protection on implementation) and the application for permission to apply for judicial review in relation to the ground concerning the 2010 Act.

THE FACTS

5

The first claimant, Mr P, is a single man aged 52 years of age. He has been diagnosed with non-Hodgkin lymphoma and, sadly, the diagnosis is that the condition is likely to be terminal. Mr P also suffers from other serious medical conditions. He and his then partner moved to the London Borough of Hammersmith and Fulham in November 2015. They separated in early 2016. At that stage, Mr P was in receipt of housing benefit from the local authority and also of the basic allowance by way of income related support. In October 2016, Mr P became seriously ill. He moved to his parents' home in Dorset at which time he ceased to be in receipt of housing benefit but continued to be in receipt of the basic allowance. On 13 December 2016, Mr P also became eligible for SDP and EDP. At that stage, his total monthly income, including the basic allowance, SDP and EDP, was £809.90.

6

In December 2016, Mr P returned to London in order to have access to a hospital providing specialist cancer care. As he would need accommodation, he would need financial assistance to cover his housing costs. At that stage, he was not able to apply for housing benefit from his local housing authority. He was in a group of persons who had to apply for universal credit. That includes a housing element. It also had different provision for those with disability needs. The standard allowance forming part of the universal credit payments was higher than the basic allowance he had previously been entitled to. However, universal credit did not include amounts corresponding to the SDP and EDP that Mr P had also formerly received. As a consequence, he received £633.42 a month for non-housing related benefits. That was over £170 a month less than he would have received had he remained able to continue to receive income related benefits under the former system. There was no system in place to temper or mitigate the drop in income.

7

Persons who moved house within the same local housing authority area did not have to apply for universal credit to enable them to receive housing benefit: they simply received housing benefit from the local housing authority for the new property. Consequently, they continued to receive their disability related benefits, including the basic allowance and SDP and EDP, and did not have any change to their monthly income in respect of their income related benefits.

8

Mr P details in his witness statement the difficulties that the reduction in income of over £170 a month (over £40 a week) has caused him. By reason of his diagnosis with non-Hodgkin lymphoma and his other conditions, and his chemotherapy treatment, he needs to travel frequently to hospital appointments and to use taxis, rather than public transport, to avoid the increased risk of infection he faces as a result of the impact of his condition on his immune system. He has difficulty with tasks such as cleaning or carrying shopping. His dietary requirements have changed. He has to deal with increased costs with reduced income. He has at times had to rely on support from family and a cancer support organisation. His financial worries have made him more isolated, depressed and tired and less able to focus on recuperation.

9

Mr R is a single man aged 36. He suffers with mental health issues and receives medication to alleviate depression and suicidal tendencies. In May 2015, Mr R moved to Middlesbrough. He was in receipt of welfare benefits including the basic allowance and SDP and EDP. He began receiving housing benefit from the local housing authority. As the house in Middlesbrough had 3 bedrooms, and Mr R was judged to be underusing it, his entitlement to housing benefit was reduced. In July 2017, he moved to a different local housing authority area, Hartlepool, and rented a two-bedroom property in order to avoid any reduction in the money provided to assist with housing. As he had moved to a different local housing authority area, he had to apply for universal credit to obtain assistance with his housing costs. As a result, he too ceased to be eligible for payments under the former regime and cash payments arising out of his disability needs were met by universal credit. That did not include any element equivalent to SDP and EDP and, whilst the standard allowance was higher, the total amount received by way of universal credit was £636.58 a month which was £178.11 a month less than he would have received had he remained eligible for assistance under the former system. A person in receipt of housing benefits and who moved house within Hartlepool would not have had to apply for universal credit. That person's housing benefit would continue to be paid by the local housing authority and that person would continue to have received welfare assistance under the former scheme including payment of the SDP and EDP. Mr R explains the effect of the reduction in his weekly income on his daily life. He has struggled to buy necessities and has had to buy cheaper and less nutritionally suitable food and has twice had to use food banks and has been given vouchers by a mental health charity. He cannot afford to heat his home and has been unable to pay all his council tax. He is unable to pay for travel to visit family.

THE LEGISLATIVE FRAMEWORK

The System Prior to Universal Credit

10

Elements of the previous welfare system have their origins in the Welfare Reform Act 2007 (“the 2007 Act”). That provided in section 1 for an allowance to be known as an employment and support allowance be paid to persons who met certain criteria including having a limited capability for work by reason of a physical or mental condition. The amount payable to a person with a low income who has limited capability for work-related activity is calculated in accordance with section 4(1), (2) and (4) of the 2007 Act. That amount is referred to in the judgment as the basic allowance and the group in receipt of that allowance is referred to as the support group.

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