We represented one of the claimants SXC in the recent case at the High Court that ruled the Government’s Universal Credit managed migration regulations were unlawful on the basis that they discriminated against a particular group of severely disabled claimants.

On 3 May 2019, the High Court ruled on the case TP, AR, SXC v Secretary Of State for Work and Pensions [2019] EWHC 1116 (QB)).

Our client is severely disabled and in receipt of the highest rates of Personal Independence Payment. Because she lives alone and does not have anyone providing regular care for her, she was able to claim an extra payment known as the Severe Disability Premium (SDP) as part of her weekly legacy benefits. Legacy benefits is the term used by the government to describe the means tested benefits people were entitled to before the introduction of universal credit (UC).

However, in August last year, SXC was wrongly advised to make a claim for Universal Credit on the basis that she had moved house and that this was a relevant change of circumstances to mean that she should transfer to UC as what is known by the DWP, a “natural migrant”. This meant that her income was reduced by £180 per month because UC does not contain an equivalent to the SDP. It also meant that she was unable to return to legacy benefits because the government’s system for migrating claimants to UC does not allow people to move back on to legacy benefits no matter what the circumstances.

We assisted our client with an application to the High Court for a judicial review challenging the lawfulness of the Universal Credit (Transitional Provisions) (SDP Gateway) Amendment Regulations 2019 and the Universal Credit (Managed Migration Pilot and Miscellaneous Amendment) Regulations 2019. Mr Justice Swift ruled that the regulations, as they related to our client, were discriminatory and therefore unlawful and should be quashed.

Last year, two severely disabled claimants known as TP and AR (represented by Leigh Day solicitors) successfully argued that severely disabled claimants had been treated differently because one group, who had moved house across a local authority boundary, were required to make a UC application where as a second group, who had moved within the local authority area, had been allowed to continue to receive legacy benefits including the SDP. The change of circumstances that led to the first group being required to make an application to UC was only related to the change of address. Both groups were severely disabled; entitled to the higher rates of PIP; lived alone; and did not have a carer for whom Carers Allowance was being paid.

The discrimination between these two groups of disabled claimants was ruled unlawful and led to the government introducing what is now known as the SDP Gateway. This is in recognition of the fact that transition from legacy benefits to UC for those entitled to the SDP has a particularly harsh impact. The SDP Gateway provision stops anyone currently in receipt of SDP from migrating on to UC as long as they continue to satisfy the conditions for eligibility for SDP. The regulations then went on to provide for a system of transferring claimants to UC through a process known as “managed migration”. Anyone prevented from transferring to UC because of the SDP Gateway will be entitled to full transitional protection ensuring that, at the point of migration, there will be no cash shortfall.

The SDP Gateway was introduced on 16 January 2019 and additional regulations were also laid before Parliament that recognised there was a cohort of severely disabled claimant who had transferred to UC prior to the introduction of the Gateway for whom no remedy had been provided. The regulations set up a scheme to provide compensation in the form of a back payment plus ongoing monthly payments of £80. It was this aspect of the scheme to which our client objected on the basis that the compensation she was being promised fell short of what she had lost out on by £100 per month and therefore discriminated between her as a natural migrant and those whose income was protected by the SDP Gateway.

We joined the two claimants from the previous court case, TP and AR, and successfully argued that these provisions were discriminatory contrary to Article 14 of the European Convention on Human Rights when read together with Article 1 of Protocol 1. Welfare benefits fall within the ambit of the right to peaceful enjoyment of property and possessions under Article 1 of Protocol 1 and Article 14 protects people from unlawful differential treatment which, in this case, the judge held was on the grounds of “other status”.

The government tried to argue that they considered the SDP natural migrants as being in materially the same position as new welfare benefits claimants (i.e. severely disabled persons presenting themselves to the welfare benefits system for the first time after the implementation of universal credit). However, the judge said that, “there is no logical foundation for that view”.

With respect to whether or not the Secretary of State could justify the difference in treatment between these two groups, Swift J said:

overall, I am not satisfied that the Secretary of State has identified any reason that explains the different treatment of the SDP natural migrant group from the [SDP Gateway] group. The standard that the claimants must meet for this purpose is the manifestly without reasonable foundation standard. Even though that standard is low (so far as the burden it places Secretary of State), as I have explained, there is a mismatch between the reasons the Secretary of State relies on, and the difference in treatment that needs to be justified.”

The government’s own figures confirm that there are at least another 13,400 claimants in the same position as our client who have naturally migrated to UC and could have lost out on benefits of up to £180 per month.

In a strong judgement, the High Court opted to quash the regulations when it could have simply declared that the regulations are incompatible with the Human Rights Act. The government must now very quickly consider what it will do to remedy this unlawful discrimination.

Labour's Shadow Work and Pensions Secretary wrote to The Secretary Of State for Work and Pensions, Amber Rudd on 13 May 2019 demanding action.  Margaret Greenwood demanded a "clear timeframe" to compensate those affected for their loss.

The law centre has been in touch with MPs in order to ask them to press the government to take action quickly and the story has been covered in the national press: the Guardian; the Independent; the Mirror.

Our client, along with TP and AR, was represented by Zoe Leventhal and Jessica Jones from Matrix Chambers.