R TP and AR (TP and AR No.3) v Secretary of State for Work and Pensions

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Holgate
Judgment Date21 January 2022
Neutral Citation[2022] EWHC 123 (Admin)
Docket NumberCase No: CO/4187/2019

[2022] EWHC 123 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

THE HON. Mr Justice Holgate

Case No: CO/4187/2019

Case No: CO/2392/2020

The Queen (on the application of) TP and AR (TP and AR No.3)
Claimants
and
Secretary of State for Work and Pensions
Defendant
The Queen (on the application of) AB and F
Claimants

and

Secretary of State for Work and Pensions
Defendant

Zoe Leventhal and Jessica Jones (instructed by Leigh Day) for TP and AR

Zoe Leventhal and Darryl Hutcheon (instructed by Southwark Law Centre) for AB and F

Julian Milford QC and Jack Anderson (instructed by Government Legal Department) for the Defendant)

Hearing dates: 19, 20 and 21 October 2021

Approved Judgment

Mr Justice Holgate

Introduction

1

The Welfare Reform Act 2012 (“WRA 2012”) introduced Universal Credit (“UC”) to replace six types of benefit –

— income-based jobseekers' allowance

— income-related employment and support allowance (“ESA”)

— income support (“IS”)

— housing benefit

— child tax credit (“CTC”)

— working tax credit

These are referred to as “legacy benefits.”

2

The reform had a number of aims including the simplification of the benefits system and its administrative processes, encouraging people into work where possible, improved targeting of financial support to meet needs, the removal of overlapping benefits, reduced scope for error and fraud, and the achievement of a fairer overall financial burden on taxpayers.

3

In summary, UC provides a claimant with a single monthly payment in arrears, comprising a number of elements to reflect individual circumstances. The elements are:—the standard allowance according to the claimant's age and whether single or part of a couple (s.9)

— an amount for each child (or “qualifying young person”) for which a claimant is responsible (s.10)

— an amount for housing costs (s.11)

— amounts for other particular needs or circumstances which may include limited capability for work and work-related activity (“LCWRA”) or the claimant's caring responsibilities for a severely disabled person (s.12).

4

The White Paper “Universal Credit: Welfare that works” (November 2010: Cm 7957) referred to the scale of the process required for “migrating” claimants from legacy benefits to UC. The Secretary of State for Work and Pensions (“SSWP”) was advised that it would affect over 19 million existing claims and about 8 million households transitioning to 10 million UC claims (see memorandum dated 9 September 2010). A system of benefits administered by the Department for Work and Pensions (“DWP”), HMRC and local authorities is being replaced by one administered by DWP. It is a huge and complex exercise, which of necessity involves phased transition.

5

In a witness statement dated 19 July 2021 Ms Janina Young (the Universal Credit Policy Team Leader for Universal Credit claims relating to health and/or disability) summarises the process of transition. There are two main types of migration to the new system, “managed” and non-managed, the latter being referred to in the White Paper as “natural.”

6

Managed migration to UC occurs where the DWP serves a notice on a claimant or group of claimants, at a time of its choosing, that they must make a claim for UC. The migration is controlled and initiated by the Department. It allows the Department to test rigorously the IT systems needed, train large numbers of staff, run pilot schemes and to resolve any problems identified, before selecting a date for requiring claimants to migrate to UC.

7

Natural migration to UC occurs where a claimant chooses to make a claim for UC because he considers he would be better off, or because there has been a change in his circumstances which makes it necessary for a fresh claim to be made. Such a change of circumstances is referred to in the documents as a trigger event. The circumstances in which the need to make a fresh claim is triggered are defined in the legislation governing legacy benefits. The Government considered that it would make no sense for a fresh claim addressing new circumstances to be assessed under legacy regimes which are in the process of being phased out. By contrast, managed migration does not involve a change of circumstance.

8

Both types of migration involve the “no turning back” principle. A transition to UC is once and for all and cannot be followed by reversion to a legacy benefit.

9

These principles were set out, in part, in the Universal Credit (Transitional Provisions) Regulations 2014, SI 2014 No. 1230 (“the 2014 Regulations”). Regulation 5(1) provides that a person entitled to UC is not entitled to income support, housing benefit, tax credit, or a state pension credit. The effect of regulation 6(1) to 6(3) is that a claimant who takes any action which requires a fresh claim to be determined may not claim income support, housing benefit, or a tax credit, but must apply for UC.

10

The upshot is that claimants receiving legacy benefits continue to receive those benefits until either managed migration takes place or a trigger event occurs resulting in natural migration, whichever is the earlier, unless, of course, they choose to apply for UC.

11

Chapter 2 of the White Paper stated that in most cases UC would provide a similar or higher level of benefit than the legacy benefits. But the Government added that it was committed to ensuring that “no one loses as a direct result of these reforms.” Consequently, “if the amount of Universal Credit a person is entitled to is less than the amount they were getting under the old system, an additional amount will be paid to ensure that they will be no worse off in cash terms.”

12

These transitional arrangements were developed in a series of Policy Briefing Notes to Ministers and in Ministerial statements. What became known as “transitional protection” was to apply in cases of managed transition, but not where migration to UC takes place “ naturally” because of a triggering event.

13

Section 36 and Schedule 6 of the WRA 2012 authorised the making of regulations for migration to UC, including transitional protection.

14

By way of example, the scheme for a managed migration pilot in Harrogate introduced by The Universal Credit (Managed Migration Pilot and Miscellaneous Amendments) Regulation 2019 (SI 2019 No. 1152) provided that a “transitional element” would be included in the amount of UC awarded to make up for the whole of any shortfall from the level of the legacy benefits previously payable that would otherwise be suffered. But that element would gradually be reduced by the total amount of any subsequent increases in the other elements of the UC award, referred to as “erosion” or tapering. Over time, therefore, that uplift in UC to make up for the shortfall would reduce to zero. That initial “indemnity”, as it has been described, only applied in managed migration cases and simply smoothed the transition from the total legacy benefits formerly payable to a less advantageous entitlement to UC. The uplift was not to be perpetuated.

15

The statutory scheme does not provide transitional relief for cases of natural migration generally, even though a triggering event may result in a sudden drop in the overall level of benefit payable, referred to as a “cliff-edge” effect. However, it has been recognised that the absence of such relief in the case of severely disabled persons involved unlawful discrimination which had to be remedied Notwithstanding the subsequent introduction of some transitional relief for such persons, it is contended in these claims that there remain two respects in which unlawful discrimination persists.

16

The remainder of this judgment is set out under the following headings:

Severely disabled persons

Headings

Paragraph Numbers

Severely disabled persons

17 – 25

The claimants and the issues raised by their claims

The removal of SDP and EDP – the claim by TP and AR

26 – 56

The Covid-19 pandemic

57 – 58

Child Tax Credit – the claim by AB and her son F

59 – 72

The grounds of challenge

73 – 74

Statutory framework

75 – 98

Legal principles on discrimination under Article 14

99 – 113

The judgments in the TP judicial reviews

The judgment of Lewis J in TP1

114 – 126

The judgment of Swift J in TP2

127 – 137

The Court of Appeal's judgment in TP1 and TP2

138 – 146

Ground 1

Ambit

147

Differences in treatment

148 – 151

Status

152 – 157

Justification and proportionality

158 – 194

Conclusions on Ground 1

195 – 198

Ground 2 (1)

Ambit

199

Differences in treatment

200 – 206

Status

207 – 208

Justification and proportionality

209 – 231

Conclusion on Ground 2(1)

232 – 233

Ground 2(2)

235 – 238

Conclusion

239 – 240

17

Chapter 2 of the White Paper addressed the position of disabled persons. Paragraph 21 referred to the Government's commitment to supporting disabled people to participate fully in society “including remaining in or returning to work wherever possible.” It was thought that the ESA model had worked well, by providing additional benefit components for people in the Work Related Activity and Support Groups. Government intended “to mirror that approach in Universal Credit.” The term “Support Group” referred to people whose conditions affect them particularly badly such that they have “limited capability for work and work-related activity” (“LCWRA”). The Government also stated that “the...

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