FLINN KAYS v SECRETARY OF STATE FOR WORK AND PENSIONS

Where Parliament confers a power to make secondary legislation without an express consultation requirement, and subjects its exercise to parliamentary control, fairness will rarely justify superimposing a duty to consult. An amendment is not irrational merely because it advances a policy objective imperfectly; a staged response may be lawful. Section 149 of the Equality Act 2010 requires coherent and robust consideration of likely consequences, not every speculative consequence. Article 14 discrimination claims fail where the alleged status merely restates the impugned rule or where the difference is objectively justified.

The claimant, a disabled university student receiving Personal Independence Payment, challenged the refusal of his Universal Credit claim after an amendment to regulation 14(1)(b) of the Universal Credit Regulations 2013. The amendment required a limited-capability-for-work determination to have been made on or before the Universal Credit claim. He argued that it was unlawful because it was made without consultation, was irrational, discriminated contrary to article 14 read with article 1 of Protocol 1 to the ECHR, and failed to comply with section 149 of the Equality Act 2010.

1. Consultation. There was no express duty to consult in section 4 or section 42 of the Welfare Reform Act 2012. In light of the parliamentary negative-resolution procedure and the statutory consultative framework involving the Social Security Advisory Committee under Part 13 of the Social Security Administration Act 1992, it was rarely appropriate to imply a further duty based on fairness. R(BAPIO) v Secretary of State for the Home Department [2007] EWCA Civ 1139 applied. The Secretary of State’s explanation that the amendment implemented a settled policy position was not shown to rest on a material mistake.
2. Rationality. The amendment did not fully secure the policy objective, since a claimant could obtain a work-capability determination through a failed contributory ESA claim and then make a Universal Credit claim. That imperfection did not make the decision irrational. A staged “wait and see” approach was a lawful option in a complex benefits scheme.
3. Convention discrimination. The alleged “other status” was defined by the very condition challenged and therefore did not identify a distinct status. In any event, the distinction was justified by the policy that students’ ordinary living costs should be met through student support, while the exception protected disabled benefit claimants moving into education. The work-around provided some mitigation. The disability, equal-treatment and age discrimination claims therefore failed.
4. Public sector equality duty. The Equality Analysis showed consideration of the practical change and its consequences. Section 149 did not require consideration of every conceivable matter, such as the speculative effect on part-time work. It required coherent and robust consideration of likely consequences within the statutory framework, which was satisfied.
5. The application for judicial review was dismissed.