Prichard, R (on the application of) v The Secretary of State for Work and Pensions

This judicial review challenged the Welfare Reform Act (Commencement ...) Order 2019 (SI 2019/37) which brought into force paragraph 64 of Schedule 2 to the Welfare Reform Act 2012 and thereby s.4(1A) of the State Pension Credit Act 2002, excluding "mixed age couples" from entitlement to state pension credit. The claimant argued that the Secretary of State breached the public-sector equality duty in s.149 Equality Act 2010 by failing adequately to consider equality impacts (sex, age, disability) when deciding to commence the provision and, separately, that the measure was incompatible with Convention rights (article 14 read with article 8 and A1P1).

The court held that s.149 does apply to a decision to commence primary legislation but the degree of "due regard" required is informed by context. The judge found that ministers and officials had repeatedly considered the impact of the mixed-age-couple policy over a prolonged development period (including EIAs of 2011 and 2018, ministerial submissions and parliamentary debate), that the policy choice was embodied in primary legislation and that transitional protections and the household-based structure of Universal Credit shaped the analysis. On the Convention claim the court applied the "manifestly without reasonable foundation" standard appropriate to social security measures and concluded that the differential treatment of mixed-age couples (including no-conditionality couples where the younger partner is a carer or disabled) was justified in light of the policy aims and the material before ministers.

The claimant, a member of a "mixed age couple" (MAC) where one partner will reach state pension age before the other, sought permission for judicial review and, if permitted, a substantive challenge to the commencement order (SI 2019/37) which gave effect to paragraph 64 of Schedule 2 to the Welfare Reform Act 2012 and s.4(1A) of the State Pension Credit Act 2002. He alleged (i) unlawful breach of the public-sector equality duty under s.149 Equality Act 2010 because the Secretary of State failed adequately to consider sex, age and disability impacts when commencing the provision; and (ii) incompatibility with Convention rights, principally article 14 taken with article 8 and article 1 of Protocol 1, because the policy discriminated against persons in his circumstances.

The factual background shows long policy development of Universal Credit (UC) and the MAC change from 2010 onwards: consultations, a White Paper, parliamentary scrutiny, impact assessments in 2011 and 2012, ministerial submissions and a further Equality Analysis in 2018. The central policy choice underlying paragraph 64 was to align means-tested support with the objective of maximising labour market participation by placing mixed-age couples within the UC household regime rather than within pensioner benefits (state pension credit and pensioner housing benefit). Officials and ministers repeatedly considered the position of MACs in which the younger partner is a carer or disabled, and they addressed options (including transitional protection and the question of a pensioner premium in UC) before the Secretary of State decided to commence in February 2019.

The court framed the legal issues as: (i) whether s.149 applies to a commencement decision and, if so, what degree of regard was required; (ii) whether the material relied on by the Secretary of State satisfied s.149; and (iii) whether the measure discriminated in breach of article 14 (read with A1P1 or article 8) and, if so, whether the difference in treatment was justified (applying the manifestly without reasonable foundation test for social security measures).

The judge held that s.149 does apply to commencement decisions but the obligation to have "due regard" is context-sensitive. In the present context the requirement of due regard must be read against (inter alia) the fact that the MAC policy was enacted in primary legislation after parliamentary consideration, that ministers and officials had repeatedly investigated and discussed equality impacts (with specific attention to carers and disabled partners), that UC is a household benefit with different purposes to pensioner support, and that transitional protections limited actual financial loss. On that basis the court concluded the Secretary of State had the regard required by s.149.

On the Convention claim the court found that differential treatment did not amount to an unjustified breach of article 14. The policy aims (promoting labour market participation, aligning support and conditionality, simplification, incentives to take small amounts of work) were legitimate, the difference in treatment was part of an overall coherent reform, and the court should apply the WMRF standard with appropriate deference to socio-economic policy. The judge concluded the MAC policy as applied to no-conditionality MACs was not manifestly without reasonable foundation.

Outcome: permission to apply for judicial review was granted but the substantive claim was refused; the Order and the provisions it commenced were not declared incompatible with Convention rights and the section 149 challenge did not succeed.

The court gave permission to apply for judicial review but refused the substantive application. The judge held that section 149 Equality Act 2010 does apply to a ministerial decision to commence primary legislation but that the Secretary of State had given the degree of "due regard" required in the particular context, having repeatedly considered equality impacts and mitigations during a lengthy policy process. The court further held that any differential treatment was justified: the challenge under article 14 (read with article 8 and A1P1) failed because the policy was not manifestly without reasonable foundation in light of legitimate social and labour-market aims, the household design of Universal Credit, and transitional protections.