QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
| R (TP and AR)
|SECRETARY OF STATE FOR WORK AND PENSIONS
|EQUALITY AND HUMAN RIGHTS COMMISSION
Edward Brown and Nicholas Flanagan (instructed by Government Legal Department) for the Defendant
Chris Buttler (instructed by Equality and Human Rights Commission)
Hearing dates: 1 - 4 May 2018
Crown Copyright ©
THE HONOURABLE MR JUSTICE LEWIS:
THE LEGISLATIVE FRAMEWORK
The System Prior to Universal Credit
"Universal Credit is a radical new approach to welfare
- It will bring together different forms of income-related support and provide a simple, integrated benefit for people in or out of work
- It will consist of a basic personal amount (similar to the current Jobseeker's Allowance) with additional amounts for disability, caring responsibilities, housing costs and children.
- As earnings rise, we expect Universal Credit to be withdrawn at a constant rate of around 65 pence for each pound of net earnings. Higher earnings disregards will also reinforce work incentives for selected groups.
When introduced, Universal Credit will initially apply to new clams. It will be phased in for existing benefit and Tax Credit recipients. There will be no cash losers at the point of change, ensuring that no will see their benefits reduced when Universal Credit is introduced."
"21. The Government is absolutely committed to supporting disabled people to participate fully in society, including remaining in or returning to work wherever feasible. The model introduced in 2008 for the Employment and Support Allowance has worked well. This provides additional benefit components for people in the Work related Activity and Support Groups. We intend to mirror this approach in Universal Credit.
"22. The Government believes the existing structure of overlapping disability premiums is overly complex and causes confusion. We are considering what extra support may be needed for disabled people in Universal Credit, over and above the additional components mentioned above and the benefits available elsewhere in the system".
"1 Universal credit
(1) A benefit known as universal credit is payable in accordance with this Part.
(2) Universal credit may, subject as follows, be awarded to
(a) an individual who is not a member of a couple (a "single person"), or
(b) members of a couple jointly.
(3) An award of universal credit is, subject as follows, calculated by reference to
(a) a standard allowance,
(b) an amount for responsibility for children or young persons,
(c) an amount for housing, and
(d) amounts for other particular needs or circumstances."
"(1) The calculation of an award of universal credit is to include amounts in respect of such particular needs or circumstances of a claimant as may be prescribed.
(2) The needs or circumstances prescribed under subsection (1) may include-
(b) the fact that a claimant has limited capability for work and work related activity;
(c) the fact that a claimant has regular and substantial caring responsibilities for a severely disabled person.
(3) Regulations are to specify, or provide for the determination or calculation of, any amount to be included under subsection (1).
(4) Regulations may
(a) provide for inclusion of an amount under this section in the calculation of an award of universal credit
(i) to end at a prescribed time, or
(ii) not to start until a prescribed time;
(b) provide for the manner in which a claimant's needs or circumstances are to be determined."
"Provision may secure that where an award of universal credit is made ..
(a) the amount of the award is not less than the amount to which the person would have been entitled under the terminated award, or is not less than that amount by more than a prescribed amount".
The Question of Additional Disability Premiums
The Question of Transitional Protection
"Transitional protection will protect the existing entitlements of people already receiving the various premiums in the current system. In an individual case the need for transitional protection will depend on how the overall benefit entitlement is affected by the move to Universal Credit. The groups who may need some transitional protection as a result of the changes described in this paper include:
People who have been awarded the severe disability premium in the existing out of work benefits
"Although new claims to Universal Credit will start from April 2013, these will only be in a small geographic area and from single unemployed people who would otherwise have been on Jobseeker's Allowance. We are still considering how Universal credit will roll out to other groups such as disabled people. No-one whose circumstances remain the same will lose out in cash terms as a direct result of the move to UC. These claimants will be given transitional protection to avoid cash loss at the point of change".
The Current Implementation Regime
(1) is differential treatment between persons with severe disabilities who have a carer caring for them as that carer receives a cash payment by way of a carer's allowance as compared with persons such as the claimants who are severely disabled but do not have a carer and for whom there is no payment included within universal credit to enable them to have their needs meet; or
(2) the "2013 Regulations" treat those with severe disabilities in the same way as those who have less severe disabilities and both now receive the same payment whereas those with severe disabilities were previously recognised as requiring higher payments (in the form of the SDP and EDP); and
(3) the defendant is unable to provide an objective justification for any of that differential treatment.
(1) there is differential treatment between (a) those who move from one local housing authority area to another, such as the claimants, and who have to apply for universal credit and no longer receive SDP or EDP and (b) those who move within a local housing authority who continue to receive the existing benefits including SDP and EDP; or
(2) there is differential treatment between (a) those who move from one local housing authority area to another and lose SDP and EDP and (b) those who will transfer (or undergo managed migration as it is described) to universal credit automatically as, it is said, the Government's intention is that that latter group will receive an element of transitional protection; or
(3) there is a failure to treat two different groups differently, namely those who transfer to universal credit and who have severe disabilities and those who transfer and do not have such needs. It is said that treating both groups in the same way, and failing to recognise the additional needs of those who are severely disabled, amounts to differential treatment for the purposes of Article 14 ECHR; and
(4) the defendant is unable to provide an objective justification for any of that differential treatment.
THE FIRST ISSUE THE CHALLENGE TO THE REGULATIONS
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status".
" difference of treatment is, however, discriminatory if it has no objective or reasonable justification; in other words, if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised" (per the Grand Chamber in Stec at paragraph 51)."
"52 I conclude that there is Strasbourg authority testing the aim and the public interest by asking whether it was manifestly unreasonable, but the approach in Strasbourg to at least the fourth stage involves asking simply whether, weighing all relevant factors, the measure adopted achieves a fair or proportionate balance between the public interest being promoted and the other interests involved. The court will in this context weigh the benefits of the measure in terms of the aim being promoted against the disbenefits to other interests. Significant respect may be due to the legislature's decision, as one aspect of the margin of appreciation, but the hurdle to intervention will not be expressed at the high level of "manifest unreasonableness". In this connection, it is important that, at the fourth stage of the Convention analysis, all relevant interests fall to be weighed and balanced. That means not merely public, but also all relevant private interests. The court may be especially well placed itself to evaluate the latter interests, which may not always have been fully or appropriately taken into account by the primary decision-maker."
The Differential Treatment Between Severely Disabled Persons With Carers and Those Without Carers
The Position of Those With Additional Needs and Those Without Such Needs
"44 The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification. 5 However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different".
THE SECOND ISSUE THE IMPLEMENTATION ARRANGEMENTS
"The question whether there is a difference of treatment based on a personal or identifiable characteristic is to be assessed taking into consideration all of the circumstances of the case and bearing in mind that the aim of the Convention is to guarantee not rights that are theoretical or illusory but rights that are practical and effective " (Emphasis supplied by Lord Wilson.)
THE THIRD ISSUE THE PUBLIC SECTOR EQUALITY DUTY