R (TD & Ors) v Secretary of State for Work and Pensions

The Court of Appeal allowed the appeal against the Administrative Court's dismissal of judicial review challenges to aspects of the implementation of the Universal Credit scheme. The court held that May J erred in law by treating the justification inquiry under Article 14 (read with Article 1 of Protocol 1) as merely a question whether the Secretary of State had given adequate consideration to the issue, rather than a substantive question the court itself must decide (the relevant test being whether the difference in treatment is "manifestly without reasonable foundation"). The appellants were comparable to legacy-benefit recipients whose awards had not been terminated by error; the differential treatment (caused by Regulations 8 and 13 of the Universal Credit (Transitional Provisions) Regulations 2014 and related provisions) was held to be manifestly without reasonable foundation in the appellants' cases. The court granted a declaration of breach of Article 14 and transferred the claim for damages to the County Court.

This appeal concerned the treatment of claimants who, after a change in circumstances initiated by the Department for Work and Pensions, had been moved on to Universal Credit (UC) and thereby lost more generous "legacy" entitlements, but whose decisions to cease legacy benefits were subsequently revised in their favour. The claimants (TD, her child AD, and Patricia Reynolds) sought declarations and damages under the Human Rights Act asserting discrimination contrary to Article 14 read with Article 1 of the First Protocol and other domestic grounds.

The factual matrix was that regulations implementing UC (notably regulation 8 and regulation 13 of the Universal Credit (Transitional Provisions) Regulations 2014 and materially similar provisions for ESA) terminated legacy awards upon migration and prevented reinstatement even where the legacy decision was subsequently revised. The appellants claimed they were left worse off through no change in their underlying circumstances except for acknowledged administrative errors by the Respondent.

The issues framed by the court included:

• whether there was relevant differential treatment and an appropriate comparator group (it was common ground that claimants entitled to legacy benefits whose awards were not terminated by error were an appropriate comparator);
• whether the differential treatment was on a prohibited ground or other status for Article 14; and
• whether the difference was objectively justified — the applicable test being whether it was "manifestly without reasonable foundation".

The Court of Appeal concluded that May J had applied the wrong legal approach to justification by treating the matter as satisfied if the Secretary of State had "adequately considered" the position. The court re-examined justification and held that, on the evidence before it (including Departmental submissions of 2015 and witness evidence), the decision to deny reinstatement or transitional protection to persons who had migrated to UC as a result of departmental error was manifestly without reasonable foundation in the appellants' cases. The court therefore allowed the appeal, granted a declaration of a breach of Article 14/A1P1, and remitted damages to the County Court while leaving the remedial response to the Secretary of State within the bounds of law and Convention obligations.

Appeal allowed. The Court of Appeal held that May J erred in treating the justification inquiry as concerned only with whether the Secretary of State had given adequate consideration; the court itself must decide whether the difference in treatment is objectively justified. Applying the applicable test (whether the difference was "manifestly without reasonable foundation"), the court concluded that the differential treatment of the appellants was manifestly without reasonable foundation and awarded a declaration of breach of Article 14 read with Article 1 of Protocol 1, with damages transferred to the County Court.

Appeal from the High Court (Administrative Court) (May J) [2019] EWHC 462 (Admin); permission to appeal to the Court of Appeal granted on 13 September 2019; this judgment [2020] EWCA Civ 618.