TD & Ors v The Secretary of State for Work And Pensions

In welfare-benefit cases, differential treatment is justified under Article 14 where the decision-maker has sufficiently considered its discriminatory impact, even though the policy produces hardship and the evidence of consideration is not contained in a contemporaneous equality impact assessment. The relevant question is whether the discriminatory impact, rather than the policy in the abstract, is manifestly without reasonable foundation. Courts must respect Parliament’s and the Executive’s wide latitude in allocating finite resources and restructuring benefits. A challenge framed as irrationality will fail where it merely repackages the same justification argument. The public sector equality duty is a process duty. It may be satisfied by substantive consideration of the relevant impact, notwithstanding the absence of a contemporaneous documented assessment.

The claimants had been moved from legacy welfare benefits to Universal Credit after decisions stopping their legacy benefits were later revised. Regulations 8 and 13 of the Universal Credit (Transitional Provisions) Regulations 2014 prevented them from returning to the legacy system. Their Universal Credit entitlement was lower, and no transitional protection was available.

They challenged that position under Article 14 read with Article 1 of the First Protocol to the Convention, and in one case Article 8. They also alleged irrationality and breach of the public sector equality duty under section 149 of the Equality Act 2010. The central issue was whether the absence of transitional protection was unjustified or irrational, and whether the Secretary of State had complied with the equality duty.

1. The claims were dismissed. The claimants’ transfer to Universal Credit, without transitional protection, did not amount to unlawful discrimination.
2. For Article 14 purposes, the court considered differential treatment, status, the ambit of the Convention right, and objective justification. Welfare provision falls within the ambit of Article 14 when it engages property rights protected by Article 1 of the First Protocol. The agreed justification test was whether the discriminatory impact was manifestly without reasonable foundation.
3. The proposed comparator of managed migrants was too speculative because the relevant regulations remained in draft. Disability was not a proper comparator on the evidence: although disabled people were more likely to claim benefits and to receive less under Universal Credit, there was no evidence that disabled claimants were more likely than non-disabled claimants to be subjected to the erroneous decisions producing the disadvantage.
4. The Secretary of State had sufficiently considered the position of claimants whose legacy-benefit decisions were later revised. The March and November 2015 submissions, departmental evidence, draft regulations and later measures showed a conscious policy decision to retain such claimants on Universal Credit without transitional protection. In the context of a major welfare reform and finite resources, that was enough to satisfy the justification test.
5. The irrationality ground added nothing. It repackaged the justification argument and failed for the same reason.
6. Section 149 of the Equality Act 2010 imposes a process duty to have due regard to the relevant equality needs. The issue had been sufficiently considered, and the absence of a contemporaneous equality impact assessment did not establish breach. The claims were dismissed.

First-instance judicial review claims. The judgment records that permission had previously been granted and the claims were joined, but no appeal decision is stated.