R (Flinn Kays) v Secretary of State for Work and Pensions

The Court of Appeal dismissed the appellant's challenge to the Secretary of State's amendment to regulation 14 of the Universal Credit Regulations 2013 by the Universal Credit (Exceptions to the Requirement not to be receiving Education) (Amendment) Regulations 2020. The principal legal questions were whether the Secretary of State acted irrationally in not consulting before making the 2020 Regulations, whether the manner in which the Regulations operated produced arbitrary and irrational results, whether the Regulations were irrational or discriminatory in drawing distinctions between classes of disabled students, and whether the Secretary of State complied with the public sector equality duty in section 149 of the Equality Act 2010.

The court held that there was no statutory or common law obligation to consult and that it was not irrational for the Secretary of State to proceed without consultation where the amendment reflected a settled departmental policy. The court also held that the step taken by the 2020 Regulations was a lawful, non‑irrational policy choice even if other options might have been available, and that the differential treatment between students already receiving benefit and those entering education for the first time had a rational basis. Finally, the court found that the Secretary of State had given coherent and adequate consideration to equality matters under section 149, identifying the adverse impact on disabled students and the available alternative sources of support.

Background and factual context. The appellant, a disabled student (recipient of personal independence payment), applied for universal credit but his claim was refused because the Universal Credit Regulations 2013 had been amended by the 2020 Regulations so that a student in full‑time education would only fall within the regulation 14(b) exception if a determination of limited capability for work had been made on or before the date of claim. The appellant contended that the 2020 Regulations (and the refusal of his claim on their basis) were unlawful on grounds of irrationality, failure to consult, discrimination and breach of the public sector equality duty.

Procedural posture. The appeal was from Swift J in the Administrative Court (CO/638/2021), who had dismissed the appellant's claim for judicial review. The Court of Appeal heard the appeal and dismissed it, upholding the High Court's reasoning.

Nature of the claim and relief sought. The application was for judicial review of the Secretary of State's decision to refuse the appellant universal credit on the basis of the 2020 Regulations. The appellant sought declaratory relief that the Regulations and/or their application were unlawful.

Issues framed by the court.

• Was the decision not to consult before making the 2020 Regulations irrational or unlawful?
• Did the 2020 Regulations achieve their purpose in an irrational or arbitrary way?
• Were the Regulations irrational or discriminatory in drawing distinctions between classes of disabled students?
• Did the Secretary of State have due regard to equality considerations under section 149 of the Equality Act 2010?

Court's reasoning on the issues. The court (Lewis LJ, Falk LJ and Simler LJ) concluded: (i) there was no express or implied obligation to consult and it was not irrational to omit consultation where the amendment implemented a settled departmental policy; (ii) the choice to amend regulation 14(1)(b) to require a pre‑existing determination of limited capability for work before claiming universal credit was a permissible policy step even if it left other routes (such as obtaining an ESA determination first) available; (iii) the distinction between those already in receipt of universal credit (or a prior LCW determination) and those entering full‑time education for the first time was rational: the former make education decisions while in receipt of benefit and the latter are expected to make decisions on the basis of student finance and student‑specific support; and (iv) the Secretary of State had substantively addressed the effects on disabled students in the equality analysis and had had due regard to the matters in section 149, so the public sector equality duty was satisfied. The appeal was therefore dismissed.

Subsidiary findings. The court recorded the administrative failures in the appellant's individual case (delays and errors in handling his ESA claim) and acknowledged their adverse personal effect but held those operational failures did not render the Regulations themselves unlawful. The court also noted the role of the Social Security Advisory Committee and that the 2020 Regulations were made urgently and were later considered not to require SSAC referral.

The appeal was dismissed. The Court held that (1) there was no obligation to consult and it was not irrational to make the 2020 Regulations without consultation where they implemented a settled departmental policy; (2) the way the Regulations operated was a lawful policy choice and not irrational or arbitrary; (3) the distinction drawn between students already receiving benefit and those entering education for the first time had a rational basis and did not amount to unlawful discrimination at common law; and (4) the Secretary of State had given due regard to equality matters under section 149 of the Equality Act 2010.

Appeal from the Administrative Court (Swift J) CO/638/2021; Swift J dismissed the claim for judicial review and this appeal ([2022] EWCA Civ 1593) was dismissed by the Court of Appeal.