TD v The Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Mrs Justice May |
| Judgment Date | 01 March 2019 |
| Neutral Citation | [2019] EWHC 462 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/590/2018 & CO/4542/2018 |
| Date | 01 March 2019 |
[2019] EWHC 462 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice May
Case No: CO/590/2018 & CO/4542/2018
Tom Royston, Counsel (instructed by The Child Poverty Action Group) for the Claimants
Edward Brown & Jack Anderson, Counsel (instructed by Government Legal Department) for the Defendant
No attendance by or on behalf of the Interested Party
Hearing dates: 23 & 24 January 2019
Approved Judgment
Introduction
These claims seek to challenge the implementation of aspects of the new system of welfare benefit known as Universal Credit (“UC”).
UC was created by the Welfare Reform Act 2012 as a replacement for multiple means tested “legacy” benefits.
In March 2017 the Claimants (“TD/AD” and “PR”) were each subject to adverse decisions made by the Defendant (“SSWP”) ceasing their entitlement to certain legacy benefits. Following those decisions, the Claimants were obliged to claim UC. Their entitlements under UC were less than their legacy benefit entitlement as a result of which each household received lower monthly welfare payments than formerly. The adverse decisions concerning the legacy entitlements were later revised, but the effect of the legislation implementing UC was that TD/AD and PR were obliged to remain on UC, receiving less per month than they would have (continued to) receive under their legacy entitlement. Although the legislation in 2012 introducing UC provided a power to afford transitional protection to those who moved from legacy benefits to UC (see [16] below), no such protection has as yet been enacted. Accordingly, neither of these Claimants received any transitional support following their transfer to UC in 2017.
TD and AD, together with PR, seek a declaration that the implementation of UC has in their cases resulted in unlawful discrimination contrary to Article 14 read with Article 1 of the First Protocol to the European Convention on Human Rights (“A1P1”), and/or with Article 8.
It is said on behalf of the Claimants that this is a test case: an analysis of Government statistics undertaken by Carla Clarke, solicitor with the Child Poverty Act Group, suggests that in the year September 2016 to August 2017, an estimated 57,000–61,000 persons in receipt of Employment Support Allowance (“ESA”) had their benefit stopped by decisions that were later revised. A proportion of these claimants will be in the same position as TD/AD and PR, having had to transfer irrevocably to UC, where their benefit entitlement is lower than it was before. In her evidence, Ms Clarke identified a number of similar cases known to her.
Permission was given for TD/AD's claim by Simler J on 2 August 2018. An order giving permission to PR, and joining the claims, was made by Murray J on 10 December 2018. I should like to record here my gratitude to both counsel for their interesting and helpful arguments on this application.
The Legislative Framework
An overview of welfare provision
What follows is taken very largely from the judgment of Lewis J in R (TP and AR) v Secretary of State for Work and Pensions (Equality and Human Rights Commission intervening) [2018] EWHC 1474. I am indebted to him for the clarity with which he reviewed and set out the state of welfare provision in England and Wales.
Legacy benefits
Employment and Support Allowance (“ESA”) has its origins in the Welfare Reform Act 2007 (“the 2007 Act”).
The 2007 Act provided in section 1 ESA to be paid to persons who met certain criteria, including having a limited capability for work by reason of a physical or mental condition. Paragraphs 6 and 7 of Schedule 4 to the Employment and Support Allowance Regulations 2008 (“the 2008 Regulations”) provided for the supplementary payment of a severe disability premium (SDP) and an additional payment (EDP) respectively to persons with severe disabilities.
In addition to income related support, other legacy benefits include child tax credit and housing benefit.
Universal Credit
A White Paper entitled “Universal Credit: Welfare that Works” Cm 7957 was presented to Parliament in November 2010. The paper identified problems with the existing welfare system. It noted that there were over 30 different benefits and many more combinations of benefits. It considered that the system provided poor incentives to work and the complexity led to difficulties for people in identifying what benefits and tax credits they would be eligible to receive. It noted that the complexity led to administrative costs. Chapter 2 of the White Paper indicated an intention to create a new system in the following terms:
“Universal Credit is a radical new approach to welfare
• It will bring together different forms of income-related support and provide a simple, integrated benefit for people in or out of work
• It will consist of a basic personal amount (similar to the current Jobseeker's Allowance) with additional amounts for disability, caring responsibilities, housing costs and children.
• As earnings rise, we expect Universal Credit to be withdrawn at a constant rate of around 65 pence for each pound of net earnings. Higher earnings disregards will also reinforce work incentives for selected groups.
When introduced, Universal Credit will initially apply to new clams. It will be phased in for existing benefit and Tax Credit recipients. There will be no cash losers at the point of change, ensuring that no will see their benefits reduced when Universal Credit is introduced.” (emphasis added)
There were further passages in the White Paper dealing with the anticipated impact of the proposed scheme on existing benefits. It was noted that “in most cases Universal Credit will provide a similar or higher level of support than the current system” (paragraph 12 of chapter 2). The same paragraph recorded the government's intention that no one would lose as a direct result of the reform and gave a commitment to provide additional cash sums to anyone who would receive less under the new system than they were receiving under the existing system.
Introduction of Universal Credit
The legislative provisions providing for the creation of UC are contained in the Welfare Reform Act 2012 (“the 2012 Act”). Section 1 provides as follows:
“1 Universal credit
(1) A benefit known as universal credit is payable in accordance with this Part.
(2) Universal credit may, subject as follows, be awarded to—
(a) an individual who is not a member of a couple (a “single person”), or
(b) members of a couple jointly.
(3) An award of universal credit is, subject as follows, calculated by reference to—
(a) a standard allowance,
(b) an amount for responsibility for children or young persons,
(c) an amount for housing, and
(d) amounts for other particular needs or circumstances.”
Regulations under section 12 of the 2012 Act were to be made by statutory instrument; the first regulations made under the relevant statutory provisions were subject to the affirmative resolution procedure: see section 43 of the 2012 Act.
Section 36 of the 2012 Act provided for what was described as “migration to universal credit”, being the process of replacing existing legacy benefits with UC. Detailed provision was made in Schedule 6 to the 2012 Act where paragraph 1 of Schedule 6 provided a power to make regulations “for the purpose of or in connection with replacing existing benefits with universal credit”. Paragraph 4 of Schedule 6 to the 2012 Act provided for the termination of an award of an existing benefit and included a power to make provision for additional payments to ensure that the amount of the new benefit was not less than the amount of benefits previously obtained, stating as follows (at paragraph 4(3)(a) of Schedule 6):
“Provision …may secure that where an award of universal credit is made …
(a) 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 made regarding UC
The first set of regulations made under section 12 of the 2012 Act were the Universal Credit Regulations 2013 (“the 2013 Regulations”).
The 2013 Regulations provide for an award of UC to include an element reflecting the fact that a claimant has a limited capability for work and work-related activity. The amount payable in respect of that element of UC is intended to be higher than the amount paid to persons who, under the existing welfare system, fell within what is known as the support group (that is, those who currently receive the basic allowance by reference to the fact that they have a limited capacity for work and work-related activity). The 2013 Regulations did not, however, include any additional disability premiums such as SDP or EDP. The result of this change was that a person who had previously been in receipt of SDP/EDP would receive less money overall. Under UC they would receive a higher basic allowance but no additional premiums.
Transfer to UC — cessation of legacy benefits
The provisions which resulted in these Claimants' entitlement to legacy benefits ceasing are regulations 8 and 13 of the Universal Credit (Transitional Provisions) Regulations 2014 (SI 2014/1230) (“the 2014 Regulations”). The 2014 Regulations were laid before Parliament on 14 May 2014 and came into force on 16 June 2014.
Regulation 8 (at the relevant time) provided as follows:
“ 8. – Termination of awards of certain existing benefits: other claimants
(1) This regulation...
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