PR v The Secretary of State for Work and Pensions

For Article 14 read with A1P1, the relevant question is the substantive effect of a social-security rule, rather than whether it is technically labelled a condition of entitlement or a payment mechanism. Where a rule means that a claimant will never receive a benefit element for an initial period, the rule may fall within A1P1’s ambit. A claimant with an enforceable entitlement to the underlying benefit has a sufficient possession in respect of the element forming part of the statutory social-security scheme. A tribunal must engage substantively with a properly raised human-rights argument and give reasons on the principal issues. Where statutory conditions for extending the time to claim are met, a Universal Credit claim may be treated as made from an earlier date.

The appellant’s Employment and Support Allowance, including the support component, ended when she reached pensionable age on 17 October 2020. She and her younger partner could not claim Pension Credit as a mixed-age couple and claimed Universal Credit on 26 October 2020. The Secretary of State awarded the LCWRA element only after the three-month period in regulation 28 of the Universal Credit Regulations 2013.

The First-tier Tribunal dismissed the appeal without properly addressing the appellant’s Article 14 and A1P1 argument or her request for disapplication of the discriminatory provision. The issues before the Upper Tribunal were whether regulation 28 fell within the ambit of A1P1 and whether the claim could be treated as made on 18 October 2020 under regulation 26 of the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside for error of law. The Secretary of State’s decision was set aside and replaced by a decision that the appellant was entitled to the LCWRA element from 18 October 2020.
2. The First-tier Tribunal had failed to give reasons for rejecting the central human-rights argument. A tribunal must address the principal issues raised and explain its reasoning. That duty was reinforced where section 6 of the Human Rights Act 1998 required the tribunal to consider whether its decision would be incompatible with a Convention right.
3. The Article 14 framework requires an identifiable status, relevantly similar situations, a difference in treatment without objective and reasonable justification, and regard to the State’s margin of appreciation. The parties accepted all elements except whether the complaint fell within A1P1’s ambit.
4. Following Stec v United Kingdom (2005) 41 EHRR SE 18 and R(RJM) v Secretary of State for Work and Pensions [2008] UKHL 63, the ambit question depends on the substantive effect of the rule. The LCWRA element formed part of the statutory social-security scheme and the appellant was entitled to Universal Credit. Because regulation 28 permanently denied her the element for the first three months, rather than merely deferring payment, she had a sufficient possession within A1P1.
5. The appellant was in a relevantly similar situation to a younger person moving from ESA to Universal Credit. The Secretary of State accepted that the difference in treatment was unjustified. Regulation 28(1), and insofar as necessary regulation 28(2), therefore had to be disapplied, following RR v Secretary of State for Work and Pensions [2019] UKSC 52.
6. R(Salvato) v Secretary of State for Work and Pensions [2021] EWCA Civ 1482 concerned reimbursement after childcare costs had been incurred and was distinguishable. It did not govern a rule which denied entitlement to an element for the period in question.
7. Under regulation 26 of the Claims and Payments Regulations 2013, the appellant had not been notified before ESA ended and could not reasonably have been expected to claim Universal Credit earlier. The claim was therefore treated as made on 18 October 2020.

• Upper Tribunal (Administrative Appeals Chamber): the First-tier Tribunal decision of 7 October 2021 was set aside for error of law under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007. The Secretary of State’s decision was set aside and substituted.
• First-tier Tribunal (Social Entitlement Chamber): appeal dismissed on 7 October 2021 under case number SC914/21/00111.