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

The Court of Appeal dismissed two appeals by the Secretary of State challenging High Court findings that certain aspects of the Universal Credit transitional regime were unlawfully discriminatory in breach of Article 14 ECHR taken with Article 1 of Protocol 1 (A1P1) as incorporated by the Human Rights Act 1998. The court upheld Lewis J's finding that the Transitional Regulations (in particular regs 5 and 6) treated severely disabled claimants who moved across local authority boundaries less favourably than those who moved within the same authority or did not move, and that no adequate objective justification was shown. The court also upheld Swift J's decision quashing aspects of the January 2019 amendments (Regulation 4A and the Pilot Regulations introducing regulation 64 and Schedule 2) to the extent that they created less favourable treatment of "natural" severely disabled migrants compared with those who would receive managed migration protection. The court applied the Article 14 test on discrimination, identifying the relevant status and asking whether the differential treatment was "manifestly without reasonable foundation"; it concluded there was no such justification on the evidence provided.

This appeal concerned challenges to the implementation of the Universal Credit scheme and to later amendments to its transitional provisions. Claimants (TP, AR and SXC) were severely disabled former recipients of legacy benefits (including severe disability premium (SDP) and enhanced disability premium (EDP)) who, upon moving across local authority boundaries (or following advice that caused a fresh claim), were treated as natural migrants to Universal Credit and suffered substantial cash losses compared with their legacy awards. They sought declarations that such implementation arrangements and later regulations were discriminatory contrary to Article 14 read with A1P1 and challenged alleged failures under the Public Sector Equality Duty and duties of candour.

Procedural posture: the appeals came from two Judicial Review judgments: Lewis J ([2018] EWHC 1474 (Admin)) and Swift J ([2019] EWHC 1116 (Adm in)). The Secretary of State appealed both decisions to the Court of Appeal; permission had been granted at High Court level.

Issues before the Court of Appeal:

• Whether the differential treatment created by the Transitional Regulations (regs 5 and 6) and by the January 2019 amendments (Regulation 4A; Pilot Regulations inserting reg 64 and Schedule 2) engaged Article 14 taken with A1P1;
• Whether the feature relied on constituted an "other status" for Article 14 purposes;
• Whether the difference in treatment was objectively justified, applying the appropriate margin of appreciation and the legal standard (whether the measure was "manifestly without reasonable foundation");
• Whether there had been breach of the Public Sector Equality Duty or of the duty of candour in the evidence presented to the High Court.

Reasoning and conclusions: the court accepted that the cases fell within the ambit of A1P1 and that Article 14 was engaged. The court held that the relevant "status" could properly be characterised either as residence-related (moving across a local authority boundary) or as the combined characteristic of being severely disabled and moving across a local authority boundary. The court applied the established Article 14 methodology and the "manifestly without reasonable foundation" standard appropriate to social and economic policy choices. On the evidence before Lewis J and Swift J the Secretary of State had not shown adequate objective justification for the differential treatment: Lewis J was entitled to find the Transitional Regulations discriminatory and Swift J was entitled to find the SDP natural migrant scheme and Regulation 4A distinction unjustified. The Court of Appeal also found that material evidence (a February 2018 ministerial decision) should have been drawn to Lewis J's attention and that omission was criticised as a failure of candour, albeit in good faith. The appeals were dismissed and the High Court orders and declarations maintained for the affected claimants and similarly situated persons.

Both appeals were dismissed. The Court of Appeal upheld the High Court findings that (i) the Transitional Regulations as implemented (regs 5 and 6) treated severely disabled persons who moved across local authority boundaries less favourably and that the Secretary of State had not shown objective justification; and (ii) the January 2019 changes (Regulation 4A and the Pilot Regulations with reg 64 and Schedule 2) created unjustified differential treatment between SDP natural migrants and the Regulation 4A/managed migrant group. The court applied Article 14 principles, accepted the relevant "status", and concluded the Secretary of State had not demonstrated a reasonable and proportionate justification on the material before the High Court; it also criticised an omission of material evidence to Lewis J.

Appeals to the Court of Appeal from two Administrative Court judgments: Lewis J, [2018] EWHC 1474 (Admin) (TP (No.1)) and Swift J, [2019] EWHC 1116 (Adm in) (TP (No.2)). Permission to appeal was granted by David Richards LJ (20 December 2018) and by Leggatt LJ (18 September 2019); appeals were heard together in the Court of Appeal and dismissed on 29 January 2020 ([2020] EWCA Civ 37).