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

The public sector equality duty applies to a ministerial decision to commence primary legislation. The degree of due regard required depends on the statutory and policy context. The duty does not require the minister to revisit, amend or create exceptions to a policy enacted by Parliament, or to conduct a forensic assessment of every possible interaction between protected characteristics and a wide-ranging welfare scheme. A commencement power permits delay for purposes consistent with the legislation, but not indefinite postponement or substitution of an inconsistent policy. In social-security cases, discrimination is justified where the measure is manifestly without reasonable foundation only if that high threshold is met. The court must distinguish the general impact of a measure from particular effects on an identifiable group.

The claimant, a mixed-age couple claimant, challenged the Welfare Reform Act (Commencement No 31 and Savings and Transitional Provisions and Commencement No 21 and 23 and Transitional and Transitory Provisions (Amendment)) Order 2019. The Order commenced paragraph 64 of Schedule 2 to the Welfare Reform Act 2012, thereby bringing section 4(1A) of the State Pension Credit Act 2002 into force.

He alleged that the Secretary of State had failed to comply with section 149 of the Equality Act 2010, and that the legislation discriminated contrary to article 14 read with article 8 and A1P1. The central issues were whether section 149 applied to the commencement decision, whether due regard had been given, and whether excluding mixed-age couples from pension credit was justified.

1. Permission and outcome. Permission to apply for judicial review was granted, but the substantive claim was dismissed. The 2019 Order and the provisions it commenced were not incompatible with the claimant’s Convention rights.
2. Commencement power. The principles in R v Secretary of State for the Home Department, ex p Fire Brigades Union explained the scope of a statutory power to bring legislation into force. The power permits the minister to select a suitable date and to delay commencement for reasons consistent with the legislative policy, including practical or administrative preparation. It does not permit indefinite delay, rejection of the enacted policy, or substitution of an inconsistent policy without parliamentary repeal.
3. Equality duty. Section 149 applied to the decision to make the 2019 Order, but the context affected the degree of regard due. The policy was contained in primary legislation, had been considered during parliamentary proceedings, and had been examined repeatedly by ministers and officials. Section 149 did not require the Secretary of State to reopen the policy choice that mixed-age couples should claim universal credit rather than pension credit, or to create an exception for couples not subject to work-related conditions.
4. The policy documents, considered as a whole, showed adequate consideration of age, disability and sex impacts, including the financial effects on mixed-age couples and couples involving a disabled person or carer. Section 149 did not require a separate forensic analysis of every interaction between the reforms and each protected characteristic. The Secretary of State had therefore had the due regard required when making the Order.
5. Convention claim. The claim fell within the ambit of A1P1. The article 14 questions identified in In re McLaughlin’s Application for Judicial Review applied. The court accepted that the measure was a paradigm socio-economic policy decision, so the manifestly-without-reasonable-foundation test governed justification.
6. The court accepted that the claimant was not treated in the same way as an able-bodied person for disability purposes because universal credit contained additional amounts for disabled people and carers. Differential treatment on age and relationship grounds was assumed or accepted for present purposes, but was justified. Relevant considerations included work incentives for younger partners, simplicity of administration, the notional rather than actual nature of the loss, disability and carer components in universal credit, and the long-standing awareness of the measure’s effects. The policy was not manifestly without reasonable foundation.

First-instance judicial review decision. Permission was granted at the rolled-up hearing, but the substantive application was refused.