R TP AR & SXC v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Swift |
| Judgment Date | 03 May 2019 |
| Neutral Citation | [2019] EWHC 1127 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5108/2018 & CO/5115/2018 |
| Date | 03 May 2019 |
[2019] EWHC 1127 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Justice Swift
Case No: CO/5108/2018 & CO/5115/2018
and
Zoe Leventhal AND Jessica Jones (instructed by Leigh Day (TP and AR), and instructed by Central England Law Centre (SXC)) for the Claimants
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
Approved Judgment
A. Introduction
This is a challenge to provisions contained in two sets of regulations: the Universal Credit (Transitional Provisions) (SDP Gateway) Amendment Regulations 2019; and the Universal Credit (Managed Migration Pilot and Miscellaneous Amendments) Regulations 2019. I shall refer to them as the “SDP Gateway Regulations” and the “Managed Migration Pilot Regulations”, respectively. The SDP Gateway Regulations came into effect on 16 th January 2019. The Managed Migration Pilot Regulations were laid before Parliament on 14 th January 2019; they are subject to the affirmative resolution procedure; and as at the time of the hearing before me they had yet to be debated before either House of Parliament. Between them, the two sets of Regulations will make provisions for the treatment of benefits claimants who either have or will transfer from being in receipt of Employment and Support Allowance (“ESA”) together with either or both of Severe Disability Premium and Enhanced Disability Premium under the provisions of the Welfare Reform Act 2007 (“the 2007 Act”) read with the provisions of the Employment and Support Allowance Regulations 2008 (“the 2008 Regulations”), to being in receipt of Universal Credit under the provisions of the Welfare Reform Act 2012, read with the Universal Credit Regulations 2013.
Each Claimant was in receipt of ESA, EDP and SDP. What I will refer to as the basic conditions for eligibility for ESA are listed at section 1(3) of the 2007 Act. One of the principal criteria is that the applicant for ESA has a limited capability for work. This is defined as meaning a limit arising either from a physical or a mental condition such that it is not reasonable to require the person to work. For present purposes, and so far as concerns income-related ESA (the means-tested form of the benefit), the benefit comprises the sums referred to in regulation 67 of the 2008 Regulations. The first is an amount in the sum prescribed in paragraph 1 of Schedule 4 to the 2008 Regulations. In addition, one or more premiums may be paid, subject to the claimant meeting the conditions for payment. These premiums are top-up payments intended to help with the additional costs associated with serious disability. The relevant premiums are set out in Parts 2 and 3 of Schedule 4 to the 2008 Regulations. Two of those premiums are material for the purpose of this case.
One premium is the Severe Disability Premium (“SDP”). SDP is paid to severely disabled adults who do not have a paid carer. The conditions for entitlement to SDP are complex. What follows will not do full justice to the detail set out in paragraph 6 of Schedule 4 to the 2008 Regulations. In general terms, SDP is paid to persons who are “severely disabled”. The term “severely disabled” is defined by reference to whether the person is entitled to one or other of another of a number specified benefits. These include the middle or highest level of the Disability Living Allowance Care Component, and the Daily Living Component of Personal Independence Payments. In addition, the notion of “severely disable person” is limited to those who do not live with non-dependent adults, and who are not persons in respect of whom Carer's Allowance is paid. Put then in even more summary terms, a person will be entitled to SDP if he has a high degree of need arising from a physical or mental disability; lives alone, (or with a partner with a similar level of need); and does not benefit from the assistance of a person who claims Carer's Allowance. When payable SDP is paid at the rate specified in Part 3 of Schedule 4 to the 2008 Regulations. For claimants without partners, the weekly rate, as of April 2018, was £64.30.
The other premium is Enhanced Disability Premium (“EDP”). The conditions for entitlement to EDP are set out at paragraph 7 of Schedule 4 to the 2008 Regulations. EDP is payable if the claimant is entitled to the highest rate of the Disability Allowance Care Component, or the enhanced rate of the Daily Living Component of Personal Independence Payment. The amount payable as EDP is also specified in Part 3 of Schedule 4 of the 2008 Regulations. The relevant rate for each of the Claimants in this case (as single persons) was £16.40 per week.
The welfare benefits scheme established under the 2007 Act is in the process of being replaced by Universal Credit, a new scheme of welfare benefits established by the Welfare Reform Act 2012 (“the 2012 Act”), and set out in further detail in the Universal Credit Regulations 2013 (“the 2013 Regulations”). It is well known that the transfer of claimants from the welfare benefits under the 2007 Act and 2008 Regulations, now referred to by the Secretary of State as “legacy benefits”, to Universal Credit is a mammoth undertaking.
The process of transfer, referred to in the 2012 Act as “migration”, is established by section 36 of the 2012 Act and Schedule 6 to that Act. Schedule 6 enables regulations to be made “for the purposes of or in connection with replacing existing benefits with Universal Credit”. By paragraph 4(3)(a) of Schedule 6, the regulation-making power includes the power to secure that when an award of Universal Credit is made to a person previously in receipt of a legacy benefit “the amount of the award is not less than the amount to which the person would have been entitled under the terminated award, or is not less than that amount by more than a prescribed amount”.
Regulations providing for the transition from legacy benefits to Universal Credit were first made in 2013. The present arrangements are set out in the Universal Credit (Transitional Provisions) Regulations 2014 (“the Transitional Provisions Regulations”). Overall, the Secretary of State has chosen to pursue a phased introduction of Universal Credit. This was commenced with effect from April 2013 in consequence of the provisions of the Welfare Reform Act 2012 (Commencement No. 9 and Transitional and Transitory Provisions and Commencement No. 8 and Saving and Transitional Provisions (Amendment)) Order 2013/983.
For the most part (but not entirely) first-time benefits claimants now make claims for Universal Credit rather than for legacy benefits. For persons in receipt of legacy benefits the position is more complicated.
B. The Facts
Each Claimant in this litigation has, in the language of the 2012 Act, “migrated” to Universal Credit. In each instance this was the consequence of regulations 5 and 6 of the Transitional Provisions Regulations. The general effect of those provisions was an issue in earlier litigation commenced by TP and AR, R(P and another) v Secretary of State for Work and Pensions [2018] EWHC 1474 (Admin), [2019] PTSR 238. In his judgment in that case, Lewis J described the effect of regulations 5 and 6 as follows at paragraph 44 – 45 of his judgment.
“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.”
Persons who migrate to Universal Credit under provisions such as regulations 5 and 6 of the Transitional Provisions Regulations are referred to by the Secretary of State as “natural migrants”. The premise for membership of this class is that the person concerned has moved over to Universal Credit because...
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