The Secretary of State for Work and Pensions v MJ

A transitional Universal Credit element cannot lawfully be wholly removed where the combined operation of the rules leaves a severely disabled, transitionally protected claimant with less benefit after an increase in needs. The claimant was in an analogous position to other protected claimants who did not suffer such a cliff-edge loss. The Secretary of State had to justify that differential treatment, rather than merely justify the general rule preventing concurrent payment of the carer and LCWRA elements.

Where no adequate explanation or rational connection is shown, the treatment breaches Article 14 read with A1P1. Universal Credit (Transitional Provisions) Regulations 2014, regulations 55(2)(c) and 55(4), must be read compatibly with Convention rights or disapplied to the necessary extent. Erosion is limited to the claimant’s net increase in entitlement.

MJ had moved from income-related ESA, which included severe disability premium, to Universal Credit and received a transitional severe disability premium element. She was already entitled to the Universal Credit carer element when she was awarded the LCWRA element because of deteriorating health.

Regulation 29(4) prevented concurrent payment of those two elements. Regulation 55 then treated the new LCWRA element as a relevant increase and removed MJ’s transitional element in full. Her monthly Universal Credit award consequently fell despite her increased needs.

The First-tier Tribunal allowed MJ’s appeal and disapplied regulation 55, but did so on an erroneous factual comparator. The Secretary of State appealed. The central issue was whether the full erosion nevertheless amounted to unjustified discrimination contrary to Article 14 read with A1P1.

1. Appeal allowed, First-tier Tribunal decision set aside, and decision remade to the same substantive effect. The First-tier Tribunal had relied on a comparator founded on an incorrect factual premise. Its decision therefore involved an error of law. Its ultimate conclusion was nevertheless correct on a proper legal basis.

2. MJ’s position and the proposed comparators were analogous for Article 14 purposes. All were severely disabled claimants given transitional protection against a cliff-edge loss on moving to Universal Credit. The fact that MJ became entitled to LCWRA after receiving the carer element was not a relevant difference which rendered comparison inappropriate. A holistic assessment of comparability and justification was required.

3. The impugned treatment was the full erosion of the transitional element, which reduced MJ’s overall award after her needs had increased. Regulation 29(4) of the Universal Credit Regulations 2013 lawfully prevented simultaneous payment of the carer and LCWRA elements, but it did not explain why that consequence should trigger total loss of transitional protection. The Secretary of State supplied no adequate evidence or explanation for treating MJ less favourably than analogous protected claimants.

4. The differential treatment lacked objective and reasonable justification, even applying the manifestly-without-reasonable-foundation standard. It frustrated the policy of gradual erosion when benefit entitlement increases and imposed a significant cliff-edge loss without a rational connection to the deterioration in MJ’s health. It therefore contravened Article 14 read with A1P1.

5. Under section 3 of the Human Rights Act 1998, regulations 55(2)(c) and 55(4) of the Universal Credit (Transitional Provisions) Regulations 2014 could be interpreted so that the relevant increase was the net increase in MJ’s award. Alternatively, the offending secondary legislation could be disapplied to that extent. MJ’s transitional element was to be eroded only by the difference between the carer and LCWRA elements from the assessment period beginning 10 October 2021 and thereafter.

1. Upper Tribunal (Administrative Appeals Chamber): The Secretary of State’s appeal was allowed. The First-tier Tribunal decision was set aside for legal error, but the Upper Tribunal remade the decision in MJ’s favour: [2025] UKUT 35 (AAC).
2. First-tier Tribunal (Social Entitlement Chamber), Ashford: Under file reference SC302/22/00270, MJ’s appeal against the erosion decision was allowed. The tribunal disapplied regulation 55, but adopted an erroneous comparator.