FLINN KAYS v SECRETARY OF STATE FOR WORK AND PENSIONS

The claimant, a disabled student in receipt of Personal Independence Payment, challenged the Secretary of State’s amendment to regulation 14(1)(b) of the Universal Credit Regulations 2013 by the Universal Credit (Exceptions to the Requirement not to be receiving Education) (Amendment) Regulations 2020. The key legal issues were whether the 2020 amendment was made lawfully without prior consultation, whether the decision to make it was irrational, whether it gave rise to discrimination under ECHR article 14 (read with article 1 of Protocol 1), 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 (i) there was no legal duty to hold prior public consultation and that the Secretary of State’s decision not to consult was lawfully open to her having regard to the statutory procedure and the rationale given; (ii) the decision to make the 2020 Regulations was not irrational because it was a lawful, proportionate step in implementing policy while keeping the effects under review (the later 2021 Regulations addressed remaining mis‑alignment); (iii) the Article 14 discrimination complaints failed because the asserted "status" coincided with the challenged difference in treatment and, in any event, the distinction was justified as a proportionate policy choice; and (iv) the Equality Analysis provided sufficient evidence of due regard to the public sector equality duty. The judicial review claim was therefore dismissed.

Background and parties: The claimant, a 19‑year‑old university student with multiple diagnosed disabilities, had his Universal Credit claim refused on 13 November 2020 on the grounds he was in full‑time education. The defendant was the Secretary of State for Work and Pensions. This was a first instance judicial review in the Administrative Court.

Nature of the claim / relief sought: The claimant sought judicial review of the amendment made by the 2020 Regulations to regulation 14(1)(b) of the Universal Credit Regulations 2013 (and consequential refusal of his claim), advancing four grounds: (1) failure to consult; (2) irrationality; (3) discrimination contrary to article 14 ECHR (and article 1 Protocol 1); and (4) breach of the public sector equality duty under section 149 Equality Act 2010. The 2021 Regulations (making a further amendment) were noted but the claim related to the lawfulness of the 2020 amendment and the Secretary of State’s decision-making at that time.

Issues framed:

• whether a duty to consult arose as a matter of fairness or otherwise before making the 2020 Regulations;
• whether the decision to make the 2020 Regulations was irrational given the Secretary of State’s stated policy objective;
• whether the amendment unlawfully discriminated against the claimant under article 14 ECHR (including age discrimination and comparison with able‑bodied students);
• whether the Equality Analysis satisfied the public sector equality duty in section 149.

Court’s reasoning (concise): On consultation, the court emphasised there was no express statutory duty to consult and relied on the statutory parliamentary control mechanism and Part 13 Social Security Administration Act 1992 procedures (including referral to the Social Security Advisory Committee) to conclude that no additional fairness‑based consultation obligation should be read in; the department had treated the amendment as reflecting a settled policy position and had engaged with the SSAC post‑fact. On rationality, although the 2020 amendment did not fully prevent alternative routes to obtain a prior limited capability for work determination (the so‑called "work‑around"), the Secretary of State was entitled to take an incremental, reviewable step to align regulation 14 with her policy and to monitor practical effects; the compressed timetable did not render the decision irrational. On Convention discrimination, the court held the claimant’s pleaded "status" mirrored the challenged rule so the Article 14 complaint failed at the threshold; alternatively the differential treatment was justified as a proportionate means of achieving legitimate policy objectives and was mitigated by available alternative routes. On section 149, the Equality Analysis considered the principal effects and available student support and demonstrated sufficient due regard; speculative impacts (for example on ability to obtain part‑time work) were not required to be exhaustively analysed.

Outcome: The judicial review application was dismissed and all grounds failed.

The application for judicial review is dismissed. The court found no duty to consult prior to making the 2020 Regulations given the statutory making/Parliamentary procedures and SSAC process; the decision to make the 2020 Regulations was not irrational because it was a proportionate, incremental implementation of policy subject to review; the Article 14 discrimination complaints failed both at the status/threshold stage and on justification; and the Equality Analysis showed adequate compliance with the public sector equality duty.