T v SECRETARY OF STATE FOR WORK AND PENSIONS

Differences between successor social-security benefits can be compared for the purposes of an Article 14 claim. The fact that the comparison concerns different benefits, or only one component of each benefit, does not itself prevent a viable claim. Those matters may instead bear on justification.

Justification requires an assessment of all the circumstances. In welfare and social-policy cases, the intensity of review depends on the particular context. A suspect ground usually requires clear and substantial justification, but indirect discrimination and measures adopted during a national emergency may affect the margin of judgment. A temporary uplift directed at new claimants during the coronavirus pandemic was sufficiently justified.

The claimants received income-related Employment and Support Allowance, Income Support or Jobseeker’s Allowance. During the coronavirus pandemic, the standard allowance element of Universal Credit was increased by the Social Security (Coronavirus)(Further Measures) Regulations 2020, and the increase was later extended by the Universal Credit (Extension of Coronavirus Measures) Regulations 2021.

The claimants alleged that the failure to make corresponding increases to the personal allowances in the legacy benefits constituted direct discrimination based on receipt of a legacy benefit, and indirect discrimination based on disability, contrary to Article 14 read with Article 1 of Protocol 1 and Article 8 of the ECHR. The central issues were whether the comparisons were viable, whether receipt of a legacy benefit was an “other status”, and whether the difference in treatment was justified.

1. Claims dismissed. Permission to apply for judicial review was granted to the Third and Fourth Claimants, but all four claims were dismissed on their merits.
2. A comparison between different benefits, including comparison between only one element of each benefit, was not automatically incapable of supporting an Article 14 claim. The differences between Universal Credit and the legacy benefits could be considered when assessing the fairness of the comparison and the justification for the difference in treatment. The approach in Stec v United Kingdom (2005) 41 EHRR SE 295 did not exclude such a claim.
3. The direct discrimination claim failed because being in receipt of a legacy benefit was not a relevant “other status”. The status relied upon was indistinguishable from the alleged failure to increase the relevant benefit allowance. The complaint was in substance about the rationality, purpose and legality of the policy decision, rather than discrimination on an impermissible ground.
4. The disability-based indirect discrimination claim was capable in principle of engaging Article 14. Whether the composition of the legacy benefits, including disability-related premiums, affected the comparison was better considered at the justification stage.
5. The court adopted the approach explained by Lord Reed in R(SC) v Secretary of State for Work and Pensions [2021] 3 WLR 428. There was no mechanical choice between “manifestly without reasonable foundation” and a requirement for “very weighty” reasons. The intensity of review depended on all the circumstances. Social and economic policy generally attracted a substantial margin of judgment, although discrimination on a suspect ground ordinarily required clear and substantial justification.
6. The uplift pursued a legitimate objective: cushioning the sudden loss of employment or income suffered by new Universal Credit claimants and supporting economic stability during the pandemic. The Secretary of State was entitled to focus on that group, even though existing Universal Credit claimants also benefited. Operational difficulties in altering legacy-benefit systems provided an additional relevant consideration.
7. The exceptional and temporary nature of the pandemic measures, their connection with wider macroeconomic policy, and the indirect nature of the disability discrimination justified the difference between Universal Credit and legacy benefits. The claims were therefore dismissed. The court also observed that the challenge had been brought late, although no limitation point was taken.

First-instance judicial review decision. The judgment records no earlier appellate decision in the same proceedings.