Thomas Prichard v The Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Elisabeth Laing |
| Judgment Date | 12 June 2020 |
| Neutral Citation | [2020] EWHC 1495 (Admin) |
| Date | 12 June 2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1536/2019 |
[2020] EWHC 1495 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Elisabeth Laing
Case No: CO/1536/2019
on the application of
Mr Richard Drabble QC AND Mr Tom Royston (instructed by PUBLIC LAW PROJECT) for the Claimant
Mr Julian Milford QC AND Mr Michael White (instructed by GOVERNMENT LEGAL DEPARTMENT) for the Defendant
Hearing dates: 19 & 20 MARCH 2020
Approved Judgment
The Hon.
Introduction
This is my decision after a ‘rolled-up hearing’ of the Claimant's applications for permission to apply for judicial review and, if permission is granted, for judicial review. The claim concerns a couple who claim welfare benefits, when one member of the household is above state pension age (‘SPA’), and the other is below SPA. I will refer to such a couple as a ‘Mixed Age Couple’ (‘a MAC’). To make it easier to follow the judgment, I will refer to the older partner in a MAC who is above state pension age as ‘the OP’ and to the younger partner in a MAC who is below SPA as ‘the YP’. The parties agree that in a MAC the OP is more likely than not to be a man, and the YP, a woman.
The Claimant (‘C’) challenges the Welfare Reform Act (Commencement No 31 and Savings and Transitional Provisions and Commencement No 21 and 23 and Transitional and Transitory Provisions (Amendment)) Order 2019, 2019 SI No 37 (‘the 2019 Order’). Article 3 of the 2019 Order brings into force a provision of primary legislation, that is, section 4(1A) of the State Pension Credit Act 2002 (‘the SPCA’), by bringing into force paragraph 64 of Schedule 2 to the Welfare Reform Act 2012 (‘the 2012 Act’). Section 4(1A) of the SPCA excludes MACs (defined in article 2(4) of the 2019 Order) from entitlement to state pension credit (‘PC’). The 2019 Order also makes related changes to entitlement to pensioner housing benefit (‘pensioner HB’), and transitional provisions, preserving entitlement to PC and to pensioner HB in some cases, broadly where an entitlement already exists.
The challenge is based on an alleged breach of section 149 of the Equality Act 2010 (‘the 2010 Act’), and on the Human Rights Act 1998 (‘the HRA’).
The Claimant argues, first, that the Defendant (‘D’) ‘failed adequately to consider the equality impact of making the 2019 Order’ (that is, the impact of commencing a provision of primary legislation which had already been enacted by Parliament). Second, C seeks a declaration that the 2019 Order and paragraph 64 of Schedule 2 to the 2012 Act are incompatible with his Convention rights, because, contrary to article 14 read with article 8 and article 1 of Protocol 1(‘A1P1’), they discriminate against people in his circumstances on the grounds of their sex, their age, disability, and because they are in a couple, and that discrimination cannot be justified.
The Defendant (‘D’) resists the section 149 claim with four broad arguments.
i. Section 149 does not apply to the making of primary legislation, or, the Secretary of State had a discretion about when, but not whether, to commence paragraph 64 (and thus, section 4(1A) of the SPCA). These factors mean that no, or minimal, regard, was due to the listed equality needs.
ii. C's section 149 challenge concerns the merits of the primary legislation, not the timing of its commencement. It must therefore fail.
iii. The equality impacts of the policy which the legislation implements have been analysed twice, in 2011, and again in 2018. The Secretary of State has also considered those impacts on other occasions. The regard which was due has been had.
iv. C's objections are based on a forensic analysis of the underlying policy; no such analysis is required by section 149.
D resists the claim for a declaration of incompatibility with three broad arguments.
i. C will not be treated differently from a person in an analogous situation.
ii. If there is a relevant difference of treatment, that difference is plainly justified. Parliament's choice is not manifestly without reasonable foundation (‘MWRF’).
iii. The claim is out of time. This point was not pressed in oral argument. I prefer to deal with the merits of the claim. I will assume for the purposes of this judgment that if the claim was not brought promptly, it is appropriate to extend the time for bringing it.
The facts
The 2012 Act created Universal Credit (‘UC’). UC is payable to households, not to individual claimants. C will reach SPA on 6 July 2020. His wife will not reach SPA until 20 July 2026. As a result of the changes made by section 4(1A) of the SPCA (which were brought into force by the 2019 Order), C and his wife will have to continue to claim working age benefits (that is, UC) until 2026, despite the fact that he will have reached SPA. He claims that his household will be £65,000 worse off than it would have been had the change not been made. Had section 4(1A) not been brought into force, C and his wife would have been eligible for PC when C reached SPA. It is important to note, however, that, as D emphasised, and as C accepts, C will not suffer an actual loss of benefits. The loss is a notional loss, measured by reference to the household's notional entitlement after 26 July 2020, had section 4(1A) not been brought into force.
C's case is that he and his wife both have serious and chronic illnesses. They receive disability benefits. It is said that neither C nor his wife is now, or is likely in the future to be, subject, under the UC regime, to any requirement to look for work. The couple they belong to is therefore described by the shorthand phrase, ‘no-conditionality MAC’. Further, C will not, in any event, be subject to a requirement to look for work after 6 July 2020, because he will then have reached SPA.
D points out that C and his wife both currently receive UC. No conditions apply to them because C is paid a Carer's Allowance for his wife, and she is paid a Carer's Allowance for him. Although it is C's case that he cannot work, the First-tier Tribunal has found that he did not have, either, limited capacity for work (‘LCW’), or limited capacity for work and work-related activity (‘LCWRA’). C did not appeal against that decision.
D does not accept that C would, if he were entitled to SPC, be entitled to its severe disability component (the ‘extra amount for severe disability’). D argues that his wife's continuing receipt of a Carer's Allowance would prevent that.
C's wife is entitled to a Carer's Allowance because she cares for him for 35 hours a week. Those hours can include overnight care, or care during the day. D accepts that, because C's wife is paid a Carer's Allowance for looking after C, she cannot ‘reasonably be required to work’ under the statutory scheme. For that reason, she is not subject to any work-related requirements. D argues, however, that it does not follow from the payment of the Carer's Allowance that C's wife cannot work, nor that she should not be encouraged to work.
The parties agree that, even though C's wife cannot be required to work, help would be available to her in a JobCentre if she wished to look for work. C points out that such help is in practice available to claimants whether they claim UC or PC. Such help is provided by D under his common law powers, not under the legislative regime governing UC.
An explanation of the legislative background and of the changes
The Government's changes to the welfare system started with a consultation document, 21 st Century Welfare (Cm 7913, July 2010). It generated over 1600 responses. It was followed by a White Paper, ‘Universal Credit: welfare that works’ (Cm 7957, November 2010). This explained why fundamental change was thought to be needed. The Government wanted to reform the benefit system to make it fairer, more affordable, and better at tackling poverty, worklessness and welfare dependency. The new system would promote work and personal responsibility (paragraph 1, executive summary). UC would radically simplify the system and its administration (paragraphs 2, 7, 1, 15 and 16, ibid). The complexity of the system, and the disincentives to work, meant that people were not prepared to take the risk of starting work (ibid, paragraph 4). Worklessness was bad for families and for society as a whole (ibid, paragraph 5). UC would reintroduce a culture of work (ibid, paragraph 6). It would improve incentives for work (ibid, paragraph 9). It would remove distortions in the current system (ibid, paragraph 10). The incentives to work would be backed up by ‘a strong system of conditionality’ (ibid, paragraph 13). The incentive fraudulently not to declare small amounts of work would be reduced because claimants would be able to do small amounts of irregular work without financial loss (ibid, paragraph 16). As many as 350,000 children and 500,000 working age adults could be moved out of poverty (ibid, paragraph 18).
Paragraph 21 of Chapter 2 described the Government's commitment to supporting disabled people to ‘participate fully in society including remaining in or returning to work whenever feasible’. Paragraph 24.b of Chapter 2 described the Government's desire to support carers and to improve their opportunities to ‘maintain links with the world of work’. Chapter 5 dealt with the ways in which UC would reduce fraud and administrative error. Chapter 7 described the impact which UC would have, summarised at the beginning of Chapter 7.
Mr Latto, a senior civil servant in the Department of Work and Pensions...
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