TP AR & SXC, R (On the Application Of) v Secretary of State for Work And Pensions (Rev 1)

Where social-security regulations treat comparable groups differently, the Secretary of State must justify the difference, even though Article 14 does not require benefits to be maintained at any particular level. In social and economic policy cases, substantial judicial latitude applies and the question is whether the measure is manifestly without reasonable foundation. Cost saving and administrative convenience may be legitimate aims, but they do not by themselves justify differential treatment. A bright-line rule may be lawful when considered alone, yet unlawful when compared with a more generous regime for a closely comparable group. The Secretary of State must explain the distinction and show that a fair balance has been struck under the four-stage proportionality test.

The claimants were severely disabled recipients of Employment and Support Allowance, including the Severe Disability Premium and, in some cases, the Enhanced Disability Premium. They had naturally migrated to Universal Credit before 16 January 2019 and received fixed-rate transitional payments.

The challenged regulations prevented further natural migration by certain SDP recipients and provided full transitional protection for future managed migrants, but less generous payments for SDP natural migrants. The claimants alleged discrimination contrary to Article 14 of the Convention read with Article 1 of Protocol 1. The central issue was whether the difference in transitional treatment between the two groups was justified.

1. Article 14 and comparison. The claim concerned the difference in transitional treatment between SDP natural migrants and the Regulation 4A group, not the general difference between legacy benefits and Universal Credit. Transitional protection fell within the ambit of Article 1 of Protocol 1, and the parties accepted that natural-migrant and managed-migrant status constituted an Article 14 status.
2. Justification. The court applied the four-stage proportionality test identified in Bank Mellat v HM Treasury (No. 2) [2014] AC 700: legitimate aim, rational connection, less intrusive measure, and fair balance. Because the case concerned social and economic policy and public-resource allocation, the appropriate standard was whether the distinction was manifestly without reasonable foundation.
3. The no-turning-back principle explained why regulation 4A was not retrospectively extended to persons who had already migrated. It did not explain why those persons should receive less generous transitional treatment. The trigger events for natural migration did not indicate any material change in the claimants’ disability-related needs.
4. Cost saving and administrative convenience were legitimate considerations. A fixed-rate bright-line scheme could have been justified if considered in isolation. However, those considerations did not explain the different treatment of two groups consisting of severely disabled persons who met, or would have continued to meet, the SDP conditions. The proposed analogy with new claimants lacked a logical foundation.
5. The Secretary of State had not discharged the burden of explanation. Given the substantial impact of the shortfall on severely disabled claimants, and the absence of any material change in need associated with the trigger events, the difference was not shown to strike a fair balance. The Article 14 claim therefore succeeded. Regulation 3(7), insofar as it inserted regulation 64, and regulation 3(8), insofar as it inserted Schedule 2, of the Managed Migration Pilot Regulations were quashed.
6. The alternative argument based on the earlier order concerning TP and AR failed. That order contemplated periodic payments ending when the managed-migration regulations came into force and was not subverted by the new regulations.

The judgment describes earlier Administrative Court proceedings involving TP and AR, in which Lewis J considered the operation of the migration regulations and granted relief concerning discriminatory trigger events: [2018] EWHC 1474 (Admin). It also discusses R(TD and others) v Secretary of State for Work and Pensions [2019] EWHC 462 (Admin), concerning transitional protection for claimants whose legacy benefits had been stopped in error. The present proceedings were a fresh first-instance challenge to the later regulations.