TP and AR, R (On the Application Of) v Secretary of State for Work And Pensions

A welfare-benefit scheme does not discriminate merely because it replaces former disability premiums with a different structure of support. In social and economic policy, differential treatment will generally be lawful where the measure pursues a legitimate aim and is not manifestly without reasonable foundation. Transitional arrangements may nevertheless be discriminatory where vulnerable claimants lose substantial existing support on transfer, and the decision-maker has not considered whether transitional protection is required. A change in housing circumstances may justify transfer to a new benefit system, but it does not by itself justify imposing the full resulting loss on claimants.

The claimants were severely disabled people who had received income-related employment and support allowance together with severe disability and enhanced disability premiums. After moving to different local housing authority areas, they had to claim universal credit and lost more than £170 per month because universal credit contained no equivalent premiums and the transitional arrangements provided no protection.

They challenged the Universal Credit Regulations 2013 and the Universal Credit (Transitional Provisions) Regulations 2014 under Article 14 read with Article 1 of the First Protocol to the ECHR. They also sought permission to challenge compliance with the public sector equality duty. The central questions were whether the new benefit structure and its implementation arrangements involved unjustified discrimination.

1. The challenge to the universal credit structure failed. The absence of elements equivalent to the severe disability premium and enhanced disability premium did not itself establish unlawful discrimination. Universal credit was a self-contained statutory scheme. Features and categories from the former benefit system did not define factual states which every replacement scheme was required to reproduce.
2. The court considered the Article 14 inquiry by reference to differential treatment, other status, ambit, and objective justification. In the context of economic and social policy, substantial respect was owed to Parliament and the executive. The relevant question was whether the measure was manifestly without reasonable foundation, although the court also considered the more structured proportionality approach advanced by the claimants.
3. The decision to replace overlapping disability premiums with a higher general allowance pursued legitimate aims of simplifying the system and allocating resources. It was rationally connected with those aims, and the choice was not manifestly without reasonable foundation. Any differential treatment between severely disabled people with carers and those without carers, or between people with different levels of need, was objectively justified.
4. The challenge to the implementation arrangements succeeded. Persons moving between local housing authority areas were required to transfer to universal credit and lost their former disability premiums. Persons moving within the same authority could remain on the former system. The difference was based on an identifiable status and fell within Article 14.
5. The phased introduction of universal credit and the use of housing circumstances as a trigger were legitimate. However, the material showed no consideration of whether transitional protection was needed for this vulnerable group, despite repeated governmental statements that such protection might be required. The resulting loss was therefore manifestly without reasonable foundation and failed to strike a fair balance.
6. The court refused permission on the proposed comparison with future managed migrants because the future regulations and treatment were unknown. It also refused permission on the public sector equality duty: the minister had considered the relevant equality material before making the 2013 Regulations, and no arguable breach was shown.
7. A declaration was granted that the implementation arrangements unlawfully discriminated. The defendant was left to determine how the discrimination should be rectified. The proposed claim for damages under section 8 of the Human Rights Act 1998 required separate consideration.