THE KING (on the application of Flinn Kays) v SECRETARY OF STATE FOR WORK AND PENSIONS

Where there is no statutory or common-law duty to consult, a Secretary of State may rationally decide not to consult on an amendment made to implement a clear and settled benefits policy. In a complex social-security scheme, it is not irrational to make an incremental amendment, close the principal route to an assessment, and keep a remaining route under review.

A distinction between disabled students already receiving universal credit and those entering full-time education without an existing work-capability determination was rational. The public sector equality duty under Equality Act 2010 requires substantive and proportionate regard to likely equality effects, not a particular outcome or analysis of every speculative consequence.

The appellant was a disabled university student receiving personal independence payment. His claim for universal credit was refused because he was in full-time education and had not obtained a determination of limited capability for work before making the claim.

The Universal Credit (Exceptions to the Requirement not to be receiving Education) (Amendment) Regulations 2020 had amended the student exception in the Universal Credit Regulations 2013. A determination of limited capability for work now had to pre-date a universal-credit claim. Swift J dismissed the appellant’s judicial-review claim.

On appeal, the appellant challenged the absence of consultation, the rationality of the amended mechanism and its differential treatment of disabled students, and compliance with the public sector equality duty. The central issue was whether those challenges rendered the amendment or the refusal of universal credit unlawful.

Decision

1. The Court of Appeal unanimously dismissed the appeal. Lewis LJ gave the principal judgment, with which Falk LJ agreed. Simler LJ agreed and added concurring observations on the irrationality challenge.

2. There was no statutory or common-law duty to consult before making the 2020 Regulations. The Secretary of State had a settled policy that a disabled student should obtain a limited-capability-for-work determination before claiming universal credit. It was rational not to consult on the amendment needed to give effect to that policy. It did not matter whether the policy had been the original intended effect of the 2013 Regulations or the way in which they had subsequently been operated.

3. The amended exception in regulation 14(1)(b) of the Universal Credit Regulations 2013 lawfully meant that a full-time student receiving the specified disability benefits was ineligible unless the work-capability determination pre-dated the claim. It was rational to close that principal route while retaining the separate route of applying for employment and support allowance and keeping its operation under review. Delays or administrative errors in obtaining an assessment were not consequences created by the 2020 Regulations.

4. The differential treatment was not irrational. Parliament had made full-time education a general bar to universal credit, subject to regulatory exceptions. Students already receiving universal credit with a work-capability determination made their education decision while benefits were in payment. Students entering education without that status made it on the basis of student finance and other available support. Those were rationally different positions. In a complex benefits system involving social and economic policy, workable bright-line criteria may produce harsh individual outcomes without becoming irrational.

5. The Secretary of State complied with section 149 of the Equality Act 2010. The duty required substantive, coherent and robust consideration of likely disability impacts, rather than consideration of every possible or speculative matter. The minister had information identifying the affected disabled students, the loss of universal-credit eligibility, available support, and the justification for preserving entitlement for those already receiving universal credit. The age point added no materially distinct equality impact.

Lewis LJ found it unnecessary to decide whether urgency may reduce the information reasonably required under section 149 where the public authority itself created that urgency.

• Court of Appeal (Civil Division): Dismissed the appellant’s appeal from the Administrative Court: [2022] EWCA Civ 1593.
• High Court, Administrative Court: Swift J dismissed the judicial-review claim challenging the refusal of universal credit and the 2020 amendment regulations.