TD & Ors, R (On the Application Of) v Secretary of State for Work And Pensions

In a welfare-benefits discrimination claim under Article 14 read with A1P1, the court must itself decide whether the difference in treatment is objectively justified. It is insufficient that the decision-maker considered the issue adequately.

The applicable standard is whether the discriminatory effect is manifestly without reasonable foundation. It requires proactive and careful scrutiny of the difference in treatment, rather than justification of the underlying policy. Where claimants moved to universal credit only because of state errors later corrected, administrative cost and complexity did not justify leaving them worse off than comparable legacy-benefit claimants. The treatment was manifestly disproportionate and violated Article 14.

The appellants received legacy benefits before decisions by the Secretary of State ended their entitlement. They claimed universal credit as the only available income-replacement benefit. The decisions ending the legacy benefits were later revised, but regulations prevented the appellants from returning to those benefits. Their universal-credit awards were lower and no transitional protection applied.

May J dismissed their judicial-review challenge in the Administrative Court: [2019] EWHC 462 (Admin). The appellants appealed, alleging unjustified discrimination contrary to Article 14 read with A1P1, and challenging the judge’s approach to justification, the adequacy of departmental consideration, and the comparators adopted.

The central issue was whether the differential treatment of claimants whose migration followed decisions later corrected by the state was objectively justified.

1. Appeal allowed unanimously. Singh LJ, with whom Rose and Arnold LJJ agreed, held that May J erred by treating justification as a question of whether the Secretary of State had given the matter adequate consideration. Under the Human Rights Act 1998, compatibility is a substantive question. The court must decide whether the outcome is objectively justified, while giving appropriate weight to governmental consideration of resource-allocation issues.

2. The court rejected the proposed additional comparator groups. On the evidence before May J, future managed migrants were too speculative and there was no evidential basis for indirect discrimination against disabled people. That did not affect the appeal because the parties accepted an analogous comparator group: legacy-benefit claimants in whose cases the Secretary of State had made no error.

3. The applicable standard was whether the discriminatory treatment was manifestly without reasonable foundation. This required proactive and careful scrutiny. The question was whether the difference in treatment was manifestly disproportionate to the legitimate aim. The respondent had to justify the differential effect, not merely the policy of replacing legacy benefits with universal credit.

4. The appellants’ underlying circumstances had not changed. In practical reality, they had to claim universal credit after the respondent’s erroneous decisions ended their legacy benefits. The errors were later corrected, and their former benefit levels were known. The respondent’s reasons of administrative complexity and cost did not justify the resulting disadvantage. Managed-migrant transitional protection also showed that protection could be administered for people moving from legacy benefits.

5. The differential treatment was manifestly disproportionate and therefore manifestly without reasonable foundation. The court declared that the appellants’ Article 14 rights had been violated. It was for the Secretary of State to determine a lawful response. The damages claim was transferred to the County Court.

• Court of Appeal (Civil Division): Allowed the appeal and declared that the appellants’ Article 14 rights had been violated: [2020] EWCA Civ 618.
• High Court, Administrative Court (May J): Dismissed the judicial-review challenge: [2019] EWHC 462 (Admin).