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

Under Article 14, justification of indirect discrimination is a substantive question for the court. It must assess whether the outcome is objectively proportionate by reference to the circumstances when the issue is decided, rather than merely review the decision-maker’s process. A demonstrable and material change may require reassessment, but later disproportionality is not established simply by evidence supporting a different policy objective. In welfare and other socio-economic policy, especially temporary measures adopted during a national emergency, a wide margin of judgment may be appropriate, although disability as a suspect ground calls for greater vigilance. A temporary uplift targeted at cushioning sudden unemployment and supporting labour-market recovery could rationally be confined to Universal Credit claimants. The appeal was dismissed.

Four appellants receiving legacy benefits challenged the failure to increase their personal allowances when the standard allowance element of Universal Credit was increased by £20 per week during the COVID-19 pandemic and extended for a further six months. They alleged direct discrimination based on other status and indirect discrimination based on disability, contrary to Article 14 read with Article 1 of Protocol 1 and/or Article 8.

Swift J dismissed the judicial review claim, finding no unlawful direct discrimination and concluding that any indirect discrimination was justified: [2022] EWHC 351 (Admin). Permission to appeal was granted only on whether justification should be assessed by reference to circumstances and evidence available when the proceedings were heard, and whether the challenge concerned an ongoing failure to remedy the difference in treatment.

Appeal dismissed. Simler LJ gave the leading judgment, with William Davis LJ and Whipple LJ agreeing.

1. Article 14 framework. The court proceeded on the unchallenged findings that the benefits dispute fell within Article 1 of Protocol 1, that the groups were relevantly similar, and that the difference in treatment had a disproportionate impact on disabled people. The only issue was objective and reasonable justification. The four-stage Article 14 framework applies equally to indirect discrimination.
2. Substantive proportionality review. Justification is a substantive question for the court. It must determine whether the outcome is objectively justified and proportionate, rather than merely examine the decision-maker’s process. This followed the approach in R(SC) v SSWP [2021] UKSC 26, Wilson v First County Trust [2003] UKHL 40 and R (TD & Ors) v Secretary of State for Work and Pensions [2020] EWCA Civ 618.
3. Intensity of review. The intensity of review depends on context. A wide margin of judgment is ordinarily appropriate for complex socio-economic welfare choices, particularly where a temporary measure responds to a national emergency. That consideration must be balanced against the greater vigilance required where disability is a suspect ground.
4. Policy rationale. The accepted rationale for the uplift was to cushion sudden unemployment or reduced employment, support labour-market recovery, enable rapid and safe implementation, and provide clear public reassurance. It was not a general anti-poverty measure directed at all hardship or increased living costs. Evidence comparing the hardship of the two cohorts therefore addressed a different policy objective and did not undermine the justification. The operational risks of changing legacy-benefit systems were also relevant.
5. Timing and outcome. A court must consider a demonstrable and material change showing that a measure has lost its rational connection with its legitimate aim or has a significantly different discriminatory impact. No such change was established. The judge had considered the successive decisions in March 2020, November 2020 and March 2021, and correctly assessed the ongoing challenge by reference to the continuing rationale. His observations that the challenge was late and did not concern an ongoing decision were expressly obiter and did not affect the substantive result.

• Court of Appeal (Civil Division) dismissed the appeal, finding no error in the assessment of justification and proportionality: [2023] EWCA Civ 24.
• King’s Bench Division, Administrative Court dismissed the judicial review claim, holding that any indirect discrimination was justified: [2022] EWHC 351 (Admin).