The Queen (on the Application of TP, AR & SXC) v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Sir Terence Etherton MR,Lord Justice Singh,Lady Justice Rose |
| Judgment Date | 29 January 2020 |
| Neutral Citation | [2020] EWCA Civ 37 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2018/1576 & C1/2019/1208 |
| Date | 29 January 2020 |
[2020] EWCA Civ 37
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Mr Justice Lewis [2018] EWHC 1474 (Admin)
Mr Justice Swift [2019] EWHC 1116 (QB)
Royal Courts of Justice
Strand, London, WC2A 2LL
THE MASTER OF THE ROLLS
Lord Justice Singh
and
Lady Justice Rose
Case No: C1/2018/1576 & C1/2019/1208
and
Julian Milford and Jack Anderson (instructed by Government Legal Department) for the Appellant
Zoe Leventhal and Jessica Jones (instructed by Leigh Day (TP and AR), and instructed by Central England Law Centre (SXC)) for the Respondents
Christopher Buttler (instructed by the Equality and Human Rights Commission) for the Intervener
Hearing dates: 3–5 December 2019
Approved Judgment
Sir Terence Etherton MR and
Introduction
These are two appeals by the Secretary of State concerning challenges to various aspects of regulations which were introduced to implement the Universal Credit (or “UC”) scheme, which was enacted by Parliament in the Welfare Reform Act 2012. The first appeal (“ TP (No. 1)”) is against the decision of Lewis J given on 14 June 2018. The second appeal (“ TP (No. 2)”) is against the decision of Swift J given on 3 May 2019. In the first appeal the Respondents are TP and AR. In the second appeal the Respondents are again TP and AR but also SXC.
We should emphasise that in these appeals we are concerned only with the position of the Respondents and those in a similar position to them. These appeals do not concern the validity of the UC scheme as a whole.
Permission to appeal was granted in TP (No. 1) by David Richards LJ on 20 December 2018. Permission to appeal was granted in TP (No. 2) by Leggatt LJ on 18 September 2019. He also directed that the appeal should be heard with that in TP (No. 1).
In TP (No. 1) there were two grounds of challenge. The first ground was rejected by Lewis J: see paras. 63, 71–72 and 80–81. By that ground the challenge was to the new structure of entitlement under the Universal Credit scheme. There is no cross-appeal in relation to that ground. On the second ground, Lewis J found in favour of TP and AR in respect of the manner in which the scheme was implemented in the Universal Credit (Transitional Provisions) Regulations 2014 (“the Transitional Regulations”), in particular regulations 5 and 6. He found those to be discriminatory and in breach of Article 14 of the European Convention on Human Rights (“ECHR”), read with the right to peaceful enjoyment of possessions in Article 1 of the First Protocol (“A1P1”), which are among the Convention rights set out in Sch. 1 to the Human Rights Act 1998 (“ HRA”). The essential basis on which Lewis J held that the provisions were discriminatory is that they treat less favourably a person who moves to another local authority. In those circumstances the Transitional Regulations do not permit a person to continue to claim Housing Benefit from a local authority. Rather an application must be made to the Department for Work and Pensions (“DWP”) and not to the new local authority; and it must be for Universal Credit, which will include an element for housing costs. The amount overall payable as an award of UC is less than what the person concerned would have received under the previous social security scheme (referred to in these proceedings as a “legacy” benefit). Lewis J granted a declaration to the effect that the Article 14 rights of TP and AR had been breached: see para. 4 of his order dated 14 June 2018.
TP (No. 2), which came before Swift J, concerned new regulations which were made in January 2019. In particular a new Regulation 4A was inserted into the Transitional Regulations by the Universal Credit (Transitional Provisions) (SDP Gateway) Amendment Regulations 2019 (“the SDP Gateway Regulations”). The effect of these regulations was to prevent persons entitled to severe disability premium (“SDP”) at that date (or in the previous month) from making a claim to Universal Credit. The Secretary of State also made the Universal Credit (Managed Migration Pilot and Miscellaneous Amendments) Regulations 2019 (“the Pilot Regulations”). These introduced a new regulation 64 and Schedule 2 into the Transitional Regulations. They conferred power on the Secretary of State to begin the process of what was called “managed migration” from legacy benefits to Universal Credit by way of a pilot scheme. The Pilot Regulations permitted the Secretary of State to migrate up to 10,000 people under the pilot scheme by way of a “migration notice”.
Amongst the measures which were introduced in this way was the introduction of a scheme of transitional payments for current claimants of Universal Credit who had been in receipt of legacy benefits and who are “severely disabled people”. This measure was quashed by Swift J as being discriminatory and unlawful under Article 14 because it treated less favourably people who had “naturally” migrated to Universal Credit (whom Swift J called “the SDP natural migrant group”), who would receive fixed-rate transitional payments, than those who, as a result of Regulation 4A, were prevented from naturally migrating and would in due course receive transitional protection as “managed migrants” (whom Swift J referred to as “the Regulation 4A group”).
In these appeals we have been assisted by submissions by Mr Julian Milford (leading Mr Jack Anderson, the skeleton argument having been written by Mr Edward Brown and Mr Anderson) for the Secretary of State, who is the Appellant in both cases; by Ms Zoe Leventhal (leading Ms Jessica Jones) for the Respondents; and by Mr Christopher Buttler for the Equality and Human Rights Commission, which is the Intervener. We are grateful to them all for the quality of their submissions.
The general context
Previous Disability Welfare Scheme
Disability premiums are additional amounts of money added to income support, income-based Jobseeker's Allowance, income-related Employment and Support Allowance (“ESA”) and Housing Benefit. There are three types of disability premium for adults: disability premium, severe disability premium (“SDP”), and enhanced disability premium (“EDP”). A person may receive more than one disability premium at a time. Each of the Respondents in these two appeals was previously in receipt of ESA with SDP and EDP.
Section 1 of the Welfare Reform Act 2007 (“the 2007 Act”) provides for ESA to be paid to persons who meet certain criteria and have limited capability for work due to their physical or mental condition and the limitation is such that it is not reasonable to require them to work. On top of the basic ESA allowance, the disability premiums are intended to assist with the additional cost of living with a serious disability.
Persons are entitled to SDP under para. 6 of Sch. 4 to the Employment and Support Allowance Regulations 2008 (“the 2008 Regulations”) if they qualify as severely disabled, defined by reference to their eligibility for other specific benefits, are single or live with a partner with a similar level of need, and do not benefit from the assistance of a person who claims Carer's Allowance. The weekly rate for claimants without partners, as at April 2018, was £64.30.
Under para. 7 of Sch. 4 to the 2008 Regulations, a person is eligible for EDP if they are entitled to the highest rate of the Disability Allowance Care Component, or the enhanced rate of the Daily Living Component of the Personal Independence Payment. The weekly rate for the Respondents as single persons was, as at April 2018, £16.40.
Universal Credit
In November 2010, the Government published a White Paper entitled ‘Universal Credit: Welfare that Works’. It indicated that the Government intended to introduce radical reform of welfare provision by providing an integrated benefit for people in or out of work, which would consist of a basic personal amount, with additional amounts (as applicable) for disability, caring responsibilities, housing costs and children.
Universal Credit was created by section 1 of the Welfare Reform Act 2012 (“the 2012 Act”), which provides:
“(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.”
Section 12 of the 2012 Act deals with the particular needs or circumstances referred to in section 1(3)(d), which include needs arising out of disability:
“(1) The calculation of an award of universal credit is to include amounts in respect of such particular needs or circumstances of a claimant as may be prescribed.
(2) The needs or circumstances prescribed under subsection (1) may include —
…
(b) the fact that a claimant has limited capability for work and work-related activity;
(c) the fact that a claimant has regular and substantial caring responsibilities for a severely disabled person.
(3) Regulations are to specify, or provide for the determination or calculation of, any amount to be included under subsection (1).
(4) Regulations may —
(a) provide for inclusion of an amount under this section in the calculation of an award of universal credit —
(i) to end at a prescribed time, or
(ii) not to start until a prescribed time;
(b) provide for the manner in which a claimant's needs or circumstances are to be determined.”
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