CC, R (On the Application Of) v HM Treasury & Anor

Where primary legislation specifies the amount payable under a statutory social-security scheme, the executive cannot use residual common-law powers to make additional payments for the same purpose. Exceptional circumstances, including a pandemic, do not create an uncertain reserve power to top up the scheme. A power concerning the functions of HMRC does not confer an independent power to make payments beyond the statutory scheme. A discrimination claim requires comparators in analogous positions. Where no lawful power exists to make the proposed payment, the claim is also barred by section 6(2)(a) of the Human Rights Act 1998, and the failure cannot be irrational at common law.

The claimant, a recipient of Carer’s Allowance who was not receiving Universal Credit, sought permission to amend her judicial-review claim. Her amended claim challenged the failure to provide her with an additional payment equivalent to the temporary increase in the Universal Credit standard allowance introduced during the COVID-19 pandemic. She relied on Convention rights, including articles 8 and 14 and article 1 of Protocol 1, and on common-law irrationality.

The defendants argued that the amount payable to carers was fixed by primary legislation and that any further payment required parliamentary action. The central issues were whether the Secretary of State or HM Treasury had power to make the proposed payment, and whether the proposed discrimination and rationality grounds were arguable.

1. Application refused. The proposed amendment amounted in substance to a new application for judicial review. Permission to amend would therefore be granted only if the proposed claim was arguable. It was not.
2. The amount payable to persons satisfying section 70(1) of the Social Security Contributions and Benefits Act 1992 for their caring responsibilities was fixed by Schedule 4 to that Act. The only power identified for changing the amount was the uprating power in section 150 of the Social Security Administration Act 1992. Any further increase was a matter for Parliament.
3. The principle in R v Secretary of State for the Home Department ex parte Fire Brigades Union [1995] 2 AC 513 applied a fortiori. Statutory provisions covering the ground of payment displaced any residual common-law power to make payments for the same purpose. The proposed exclusion of Universal Credit recipients was merely tactical or cosmetic and did not alter the nature of the payment sought.
4. The COVID-19 pandemic did not support a different construction. There was no principled or sufficiently certain doctrine allowing ministers to top up a statutory scheme in exceptional circumstances. Section 76 of the Coronavirus Act 2020 concerned directions to HMRC and did not confer an unlimited power to make payments outside the statutory scheme. Neither Managing Public Money nor the PAC Concordat supplied such a power.
5. Since the Secretary of State lacked power to make the proposed payments, the Convention-rights claim failed under section 6(2)(a) of the Human Rights Act 1998. In any event, section 6(2)(b) applied because declining to make payments beyond those provided for by statute constituted giving effect to primary legislation, consistently with R (Hooper) v Secretary of State for Work and Pensions [2005] 1 WLR 1681.
6. The discrimination claim was not arguable. Recipients of Universal Credit, workers benefiting indirectly from the Job Retention Scheme, and self-employed persons receiving support under the Self-Employment Income Support Scheme were not in analogous positions. The Government’s evidence also provided a rational explanation based on finite resources and prioritisation of groups likely to suffer income loss. The rationality challenge therefore failed as well.

The claimant’s application to amend the Claim Form and Statement of Facts and Grounds was refused. The judicial-review claim consequently came to an end. Consequential matters were to be addressed by written submissions.

This was a first-instance Administrative Court decision. The judgment records that Linden J had granted permission to apply for judicial review on 28 July 2020. No appellate decision is stated.