Severely disabled benefits claimants win legal challenge over loss of income caused by move on to Universal Credit

In a scathing judgment handed down today, the DWP is found to have discriminated against the pair when it didn’t compensate them the full circa £180 a month difference in the payments they received on legacy benefits and the payments they received on UC when they moved into an area where UC had already been rolled out.

According to the DWP, in evidence it gave to the court when defending the judicial review claim, the ruling will affect up to 50,000 people and will involve sums of up to £150 million over a six-year period to put right.
 
The ruling is the fourth in favour of TP and AR, who began their legal campaign after they suffered a severe drop in income when they were moved on to UC in 2016 and 2017 as a result of house moves to areas where UC was in operation. Previously they had each received Severe Disability Premium (SDP) and Enhanced Disability Premium (EDP).
 
Despite rulings in the High Court and Court of Appeal, the DWP still refused to pay severely disabled people affected by the policy the full monthly loss of circa £180 they suffered and instead paid them just £120 a month, compensating for the loss of SDP and not EDP.
 
The SDP Gateway was introduced in 2019 to prevent other severely disabled benefits claimants from being moved onto UC outside of a managed migration process until January 2021. Outside of that period, disabled people in receipt of both SDP and EDP who experience a so-called ‘trigger event’ (certain changes in circumstances), such as a move into a UC area, experienced a sudden severe loss of income. They are known as ‘SDP natural migrants’.
 
The judgment in this case represents the fourth time that the Court has given detailed consideration to claims under Article 14 of the European Convention of Human Rights alleging unlawful discrimination against severely disabled adults who ‘naturally’ migrated to Universal Credit.
 
Once again, the Court concluded that the Secretary of State for Work and Pensions was unable to show an objective and reasonable justification for the differential treatment of those in TP and AR’s position. The Court found that to a large extent the Secretary of State’s arguments and evidence were the same as in the earlier cases.[1] In spite of the outcome and detailed findings in the previous cases, the Defendant’s evidence on key points was very limited, too generic or otherwise inadequate.[2] Notwithstanding the Secretary of State’s continued claims that something significant had changed, the Court repeatedly emphasised that the essential differences in treatment remained the same and that neither legislative changes nor temporary Covid-related support changed the analysis.[3]
 
The court held that Regulation 63 and Schedule 2 of the Universal Credit (Transitional Provisions) Regulations 2014 unlawfully discriminate against TP and AR by failing to cover the loss of EDP when providing transitional payments. It thereby treated them less favourably, without reasonable justification, than (1) legacy benefit claimants entitled to SDP who did not experience a ‘trigger event’ compelling them to claim UC, and (2) legacy benefit claimants entitled to UC who experienced a ‘trigger event’ on or after 16 January 2019 and before 27 January 2021 (during the period in which the Gateway was in place). 

Mr Justice Holgate found:

• The Covid-19 uplift received by UC claimants during the pandemic does not undo or make up for the disadvantage caused by the failure to cover the loss of EDP.
• The inclusion of relief for EDP would not overpay those of the 71,000 claimants who receive SDP but not EDP. Overpayment could be avoided if legislation provided for six fixed rates of payment rather than three. “The suggestion that transitional payments in respect of EDP could not be deliverable has simply not been made out,” he said.
• The risk that a ruling in favour of TP and AR would trigger ‘piggyback’ (similar, other) claims was not realistic.
• The Secretary of State had not shown a reasonable relationship of proportionality between her aim of curtailing public expenditure, and the decision not to provide any element of transitional relief against the loss of EDP.

The judge said:
 
“I am not satisfied on the material before the Court that the broad aims of promoting phased transition, curtailing public expenditure or administrative efficiency required the denial of transitional relief against the loss of EDP for SDP natural migrants. Quite apart from that, I reach the firm conclusion that a fair balance has not been struck between the severity of the effects of the measure under challenge upon members of the SDP natural migrants group and the contribution that that measure makes to the achievement of the [Secretary of State for Work and Pension’s] aims, a fortiori where there is no connection between the triggering event, the move to a home in a different local authority area, and any rational assessment of the disability needs of a severely disabled claimant.”
 
The judgment also found in favour of claimants AB and F, a disabled mother and child, represented by Southwark Law Centre, saying that the discrimination they suffered “is manifestly without reasonable foundation”.
 
The failure to provide transitional protection against the loss of the lower disabled child element of Child Tax Credit was found to constitute unlawful discrimination. It treated AB and F less favourably than legacy benefit claimants entitled to SDP and the lower disabled child element of Child Tax Credit who have not experienced a trigger event compelling them to claim UC. It also treated them less favourably than legacy benefit claimants who were entitled to SDP and the lower disabled child element of Child Tax Credit who experienced a trigger event whilst the SDP gateway was in place.

Claimant TP said:

“I am relieved that the judge agrees that the DWP treated us differently than other severely disabled benefits claimants and that it was wrong to do so. The past six years have been immensely stressful as I have struggled to get by on a lower income. I just hope that the DWP will put all of this right as soon as possible so that those of us who have been badly affected by this unfair policy can get on with our lives.”

Claimant AR said: 
 
“It should never have been the case that disabled people entitled to the severe and enhanced disability premiums were suddenly deprived of the equivalent sum when they found themselves transferred on to Universal Credit. The policy has caused me and others serious hardship and I am glad that the court has seen the sense in our argument. Hopefully we will be ‘fourth time lucky’ and finally have reached the end of the road fighting this unfair policy.”
 
Leigh Day partner Tessa Gregory said:
 
“Whilst we are delighted that the court has once again found in our clients’ favour, we do not understand why this matter is still being litigated.
 
“Following the three previous findings of unlawful discrimination the DWP should have ensured our clients were not losing out on severe and enhanced disability payments following their move from legacy benefits to Universal Credit. Instead after each judgment the DWP has made further attempts to short-change this group of highly vulnerable claimants who faced a cliff edge loss of income when none of their disability needs has changed.
 
“Our clients hope that this judgment marks the end of the road and that the DWP will stop wasting money on legal fees and get on with protecting the vulnerable.”
 
TP and AR are represented by Tessa Gregory, Carolin Ott and Lucy Cadd of Leigh Day and Zoe Leventhal, and Jessica Jones of Matrix Chambers.
 
AB and F are represented by Rachel Lovell of Southwark Law Centre and Zoe Leventhal, and Darryl Hutcheon of Matrix Chambers.

[1] See Judgment at e.g. §§161, 166, 187-189, 194.
[2] See Judgment at e.g. §§183-185, 190-194, 221 and 227-229.
[3] See Judgment at e.g. §§149-151, 154-155, 164, 176-178, 208.