R (TP and AR) v Secretary of State for Work and Pensions

The claimants challenged (1) the Universal Credit Regulations 2013 for failing to provide equivalents to the former Severe Disability Premium and Enhanced Disability Premium and (2) the implementation/transitional arrangements (the Universal Credit (Transitional Provisions) Regulations 2014) which required certain claimants who moved local housing authority areas to migrate to universal credit without any transitional protection. The claimants relied on Article 14 read with Article 1 of Protocol No. 1 ECHR. The court held that the scheme established by the 2013 Regulations, including the decision not to replicate SDP/EDP within Universal Credit, pursued a legitimate social and fiscal policy aim and that the differential treatment identified was objectively justified. However, the court found that the implementation arrangements as they operate for persons moving between local housing authority areas produce differential treatment on grounds of status (those formerly receiving SDP/EDP who were forced to migrate versus those who moved within the same local authority and retained the old premiums) and that, on the material before the court, that differential treatment was not objectively justified and was manifestly without reasonable foundation. Permission to pursue a public sector equality duty challenge under section 149 Equality Act 2010 was refused as unarguable on the facts before the court.

Background and parties: The claimants, former recipients of income‑related Employment and Support Allowance who also received additional disability premiums (SDP and EDP), were required on moving to a different local housing authority area to claim Universal Credit. Universal Credit contained a higher standard allowance but no equivalents to SDP/EDP, producing a substantial cash loss for the claimants. The Secretary of State defended the 2013 Regulations and the Transitional Regulations. The Equality and Human Rights Commission intervened.

(i) Nature of the claim and relief sought:

• The claimants sought judicial review declarations that (a) the 2013 Regulations discriminated contrary to Article 14 taken with Article 1 of Protocol No. 1 ECHR by abolishing SDP/EDP without objective justification; and (b) the Transitional Regulations discriminated by requiring migration without transitional protection; and (c) reconsideration of refusal of permission to argue breach of the public sector equality duty (section 149 Equality Act 2010).

(ii) Issues framed by the court:

• Whether the 2013 Regulations involve unlawful discrimination under Article 14 + Protocol 1 by (A) treating severely disabled persons without carers less favourably than those with carers, and/or (B) treating persons with greater disability needs the same as those with lesser needs.
• Whether the implementation/transitional arrangements discriminate under Article 14 + Protocol 1 by creating differential treatment between persons who move between local authority areas (forced to migrate to Universal Credit) and persons who move within the same local authority (who retain SDP/EDP), or by comparison with prospective "managed migrants".
• Whether there was a breach of the public sector equality duty (s.149 EA 2010) when the minister made the 2013 Regulations and the Transitional Regulations.

(iii) Court's reasoning and conclusions:

• On the 2013 Regulations the court accepted the Government's legitimate aims of simplifying and restructuring the welfare system and allocating resources. The decision to subsume disability support into Universal Credit's standard allowance rather than reproduce SDP/EDP reflected considered policy choices debated in Parliament and was not manifestly without reasonable foundation; any differential treatment was objectively justified.
• On the Transitional Regulations the court accepted phased migration to Universal Credit as a legitimate aim but concluded that using a move between local housing authorities as the trigger to force migration produced a serious and foreseeable loss to a defined and vulnerable group (those formerly receiving SDP/EDP) without evidence that the Department had considered transitional protection for that group. The court found differential treatment based on status and that the lack of transitional protection was not objectively justified; it was manifestly without reasonable foundation and failed to strike a fair balance.
• On the public sector equality duty, the court held the minister had addressed equality issues in the equality impact assessments and other material and refused permission to pursue that ground as unarguable on the evidence presented.

The court granted a declaration of unlawful discrimination in respect of the implementation arrangements and refused the regulatory challenge to the 2013 Regulations and refused permission on the s.149 claim. The court noted the claimants' application to amend to seek damages under section 8 Human Rights Act 1998 which would require further consideration if permitted.

Part allowed. The court dismissed the challenge to the substantive Universal Credit Regulations 2013, holding that the decision not to replicate SDP/EDP within Universal Credit pursued a legitimate aim and was objectively justified. The court allowed the challenge to the implementation/transitional arrangements, holding that forcing migration on certain claimants who moved between local housing authorities without transitional protection amounted to unlawful discrimination under Article 14 read with Article 1 of the First Protocol because the differential treatment was not objectively justified. Permission to pursue a public sector equality duty claim under section 149 Equality Act 2010 was refused as unarguable on the evidence.