T & Ors. v The Secretary of State for Work and Pensions

The Court of Appeal dismissed the appellants' challenge to the Secretary of State’s decision not to apply the £20 per week temporary Universal Credit uplift to legacy benefits for the period 6 April 2021 to 5 October 2021. The court accepted that the measure had a disproportionate impact on disabled recipients of legacy benefits (prima facie indirect discrimination) but held that the differential treatment was justified. The judge below had properly applied the proportionality/justification analysis set out in R (SC) v SSWP [2021] UKSC 26, taking account of the emergency context of the pandemic, the policy objectives of the uplift (to mitigate sudden loss of earnings and protect labour-market stability) and the practical and operational constraints in modifying legacy IT systems and benefit rates mid-year. Although the appellants relied on authorities that the court must assess proportionality by reference to circumstances at the time of the challenge, the Court of Appeal concluded that Swift J had considered the decisions across the relevant period (March 2020, November 2020 and March 2021) and did not err in law.

Background and parties: The appeal concerned four individual claimants who received legacy benefits (ESA, IS or JSA) and who alleged unlawful discrimination when the Secretary of State increased the Universal Credit standard allowance by £20 per week (the 2020 Regulations) and later extended that uplift (the 2021 Regulations), without making a corresponding increase to the personal allowance elements of legacy benefits. The claimants argued this differential treatment amounted to direct and/or indirect discrimination contrary to Article 14 read with Article 1 Protocol 1 and/or Article 8 ECHR. The impugned period for challenge was 6 April 2021 to 5 October 2021. The claim was dismissed by Swift J in the Administrative Court ([2022] EWHC 351 (Admin)).

Relief sought and issues:

• Nature of the claim: judicial review challenging an ongoing failure to remedy the difference in treatment between UC recipients and legacy benefit recipients for the period of the 2021 extension.
• Core issues framed: whether the differential treatment engaged Article 14 (it was accepted the case fell within the ambit of Article 1 Protocol 1), whether there was a relevant status (disability) and whether any indirect discrimination was objectively and reasonably justified (the proportionality question).

Procedural history: Permission to appeal to the Court of Appeal was granted only on the ground that Swift J had wrongly confined the proportionality assessment to the position in March 2020 rather than assessing justification by reference to the facts as at the time of the 2021 decision and the material before the court in November 2021. Other grounds were refused.

Court’s reasoning and outcome: The Court of Appeal reviewed the evidence accepted by Swift J, including DWP witness evidence describing the United Kingdom Government’s objectives (mitigating sudden income loss, protecting labour-market stability and ensuring rapid deliverability) and the operational limits of legacy IT systems which restricted mid-year changes to legacy benefit rates. The court applied the proportionality framework in R (SC) v SSWP and related authorities, acknowledging that a reviewing court must assess the objective justification of an impugned measure but also that the executive is entitled to a margin of appreciation in social and economic policy, especially for temporary emergency measures. The court concluded Swift J had considered the position across March 2020, November 2020 and March 2021, had rejected the appellants’ contention that poverty-alleviation rather than labour-market stabilisation was the primary aim, and had permissibly found the differential treatment justified. The appeal was dismissed.

Appeal dismissed. The Court of Appeal held that the differential treatment between Universal Credit recipients and legacy benefit recipients constituted indirect discrimination on grounds of disability but was objectively and reasonably justified. The judge below had properly assessed proportionality in light of the emergency context, the Government's legitimate policy objectives (mitigating sudden income loss and protecting labour-market stability), and the operational constraints on changing legacy benefit rates mid-year, and there was no legal error in his approach.

On appeal from the King's Bench Division, Administrative Court (Swift J) [2022] EWHC 351 (Admin) to the Court of Appeal [2023] EWCA Civ 24. Permission to appeal was limited to the proportionality/timing issue; other challenges were refused.