The High Court has upheld a claim for judicial review of the Universal Credit (Transitional Provisions) (Claimants previously entitled to a sever disability premium) Amendment Regulations 2021.
The Claimants sought to have Schedule 2 of the 2014 Regulations (preserved by Regulation 3 of the 2021 Regulations) declared unlawful in what was their third claim for judicial review on the matter. They claimed that that at all stages of the history of this litigation the members of the SDP natural migrants group (those transitioning to the Universal credit Scheme designed to replace all Legacy Payments) have suffered, and continue to suffer, differential treatment in breach of Article 14 of the ECHR. Although the introduction of the SDP transitional payments by SI 2019 No. 1152 has overcome discrimination relating to the loss of SDP, that is not so in relation to EDP.
Their specific grounds of challenge were as follows:
Regulation 63 and Schedule 2 of the Universal Credit (Transitional Provisions) Regulations 2014 as originally enacted discriminate against SDP (Severe disability premium) natural migrants by failing to provide transitional relief for the loss of EDP (enhanced disability premium).
(1) In the case of a severely disabled claimant migrating naturally to the UC scheme, the absence of any transitional relief for the loss relating to the former disabled child element of the CTC, as compared with other SDP claimants with similarly disabled children who did not experience a triggering event resulting in natural migration, and therefore continued to receive legacy benefits, amounts to unlawful discrimination contrary to Article 14 of the ECHR read together with A1PI and/or Article 8. This group is a subset of the SDP natural migrants cohort. The absence of any element of transitional relief at any stage since the UC scheme came into force amounts to less favourable treatment.
(2) This ground involves comparison within the group to which Schedule 2 to the 2014 Regulations (as inserted by SI 2019 No. 1152) applies, namely persons who were entitled to SDP at the point when they migrated “naturally” to UC. AB (and others with disabled children) were treated by Schedule 2 in the same way as other persons falling within Schedule 2 but without disabled children. They were all entitled to the same transitional payment for the loss of SDP, but AB (and others with disabled children) were not given any entitlement to a transitional payment in respect of the loss arising from the replacement of the CTC element for a disabled child by the lower rate for a disabled child under UC. In terms of entitlement to transitional payments, Schedule 2 treated materially different persons in the same way, amounting to discrimination under Article 14 read with A1P1 and/or Article 8 in breach of the principle in Thlimmenos v Greece (2001) 31 EHRR 15.
The Court felt it had to address four questions to consider regarding compatibility with Article 14:
(1) Do the circumstances fall within the ambit of one or more Convention rights?
(2) Have the claimants been treated less favourably than a class of persons whose situation is “relevantly similar” or who are in an “analogous situation”?
(3) Is that difference in treatment on the ground of one of the characteristics listed in Article 14 or an “other status”?
(4) Is there an objective and reasonable justification for that difference in treatment?
After answering the first 3 questions in the affirmative, the burden fell to the defendant to convince the court of Question 4. The Court was not satisfied that the SSWP has shown that there is a reasonable relationship of proportionality in this case between the defendant’s aims, including reducing or curtailing public expenditure, and the means chosen to pursue it, namely the decision not to provide any element of transitional relief against the loss of EDP for members of the SDP natural migrants group.
Nor were they satisfied 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. They held that a fair balance had 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 defendant’s aims.
Accordingly, the Court held that all applicants succeeded on the first ground.
On Ground 2(1) – Even applying a low intensity of review, or giving a wide margin of appreciation, the Court was not satisfied that the SSWP has justified the differential treatment identified under Ground 2(1). That discrimination is manifestly without reasonable foundation.
The Court felt that Ground 2(2) was not an issue which it considered appropriate to decide on the submissions received.
The Court gave judgment accordingly, inviting the parties to draw up appropriate declarations as to the unlawfulness of the Regulations.