QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| on the application of THOMAS PRICHARD
|- and -
|THE SECRETARY OF STATE FOR WORK AND PENSIONS
(instructed by PUBLIC LAW PROJECT) for the Claimant
MR JULIAN MILFORD QC AND MR MICHAEL WHITE
(instructed by GOVERNMENT LEGAL DEPARTMENT) for the Defendant
Hearing dates: 19 & 20 MARCH 2020
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email, release to BAILII. The date and time for hand-down is deemed to be 10:30am on 12 June 2020.
The Hon. Mrs Justice Elisabeth Laing :
i. Section 149 does not apply to the making of primary legislation, or, the Secretary of State had a discretion about when, but not whether, to commence paragraph 64 (and thus, section 4(1A) of the SPCA). These factors mean that no, or minimal, regard, was due to the listed equality needs.
ii. C's section 149 challenge concerns the merits of the primary legislation, not the timing of its commencement. It must therefore fail.
iii. The equality impacts of the policy which the legislation implements have been analysed twice, in 2011, and again in 2018. The Secretary of State has also considered those impacts on other occasions. The regard which was due has been had.
iv. C's objections are based on a forensic analysis of the underlying policy; no such analysis is required by section 149.
i. C will not be treated differently from a person in an analogous situation.
ii. If there is a relevant difference of treatment, that difference is plainly justified. Parliament's choice is not manifestly without reasonable foundation ('MWRF').
iii. The claim is out of time. This point was not pressed in oral argument. I prefer to deal with the merits of the claim. I will assume for the purposes of this judgment that if the claim was not brought promptly, it is appropriate to extend the time for bringing it.
An explanation of the legislative background and of the changes
The commencement provision in this case
What is the scope of a statutory power to bring legislation into force?
Section 149 of the 2010 Act
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it'.
'involves having due regard, in particular, to the need to –
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.'
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 1 of Protocol 1
Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
Prohibition of discrimination
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.
i. Do the circumstances 'fall within the ambit' of another Convention right?
ii. Is there a difference in treatment between the claimant and another person whose situation is, in relevant respects, analogous?
iii. Is the difference in treatment on the grounds of the claimant's status?
iv. Is the difference in treatment objectively justified?
See In re McLaughlin's Application for Judicial Review  UKSC 48;  1 WLR 4250 at paragraph 15.
i. D failed to have regard to 'the sex impact' of the measure, in particular by failing to recognise that the measure would deprive a lot of men of the chance ever to receive PC.
ii. D failed to have regard to 'the disability impact', by misconstruing the statistics, failing to consider that the measure would deprive a lot of disabled people of the chance ever to receive PC, and failed to consider that a lot of disabled people were in a group to whom the logic of her policy of incentivising work did not apply.
iii. D failed to have regard to ways in which 'the age and marital status impacts of the policy might be eliminated'. An obvious way to do that would be to include a pensioner premium in UC. C accepts that D did understand that older people and couples would be adversely affected.
a. There is differential treatment on all the pleaded grounds (age, sex, disability and relationship status).
b. The discrimination is not justified, in particular because D had failed to show that it is proportionate to exclude MACs from PC where the YP is not subject to conditions and when there is no pensioner premium in UC.
c. D's approach to HB and to council tax support is discriminatory, incoherent and unjustified.
d. Various factors in this case require particularly careful scrutiny.
i. What weight should a court give to paragraph 26(4) of Bracking?
ii. How should a court approach a challenge to a commencement order which is founded on an alleged breach of section 149?
iii. How do those principles apply to C's case?
Section 149 and commencement orders
Applying the law to C's case
i. A fundamental feature of the design of UC is that it is paid to households. Whether a MAC should be entitled to UC or to PC is a policy question, to which there is no 'right' or 'wrong' answer.
ii. The MAC policy is embodied in primary legislation. Both Houses of Parliament had specific opportunities to amend the MAC policy and did not do so. On two occasions an amendment was not pressed to a vote; and when voted on, the proposed amendment was defeated.
iii. It is clear from the Parliamentary debates that even at the stage of those debates, it was understood that the policy would result in significant financial losses for MACs.
iv. It is also clear that legislators were aware of the effect of the MAC policy when the YP was caring for an OP with disabilities, or the YP had disabilities.
v. It is clear from the policy materials, which I have summarised at some length, that both officials and the relevant ministers were also aware of these significant losses, throughout the period between Royal Assent and the making of the 2019 Order. It was believed that those were justified in order to avoid people of working age being supported by benefits but not being subject to appropriate work-related conditions.
vi. It is clear from the policy materials that officials and ministers were aware of, and considered more than once, the effect of the MAC policy on a MAC which included a person who was disabled, or a carer, and would not be subject to conditions.
vii. Because of D's consistent policy about transitional protections, which was clear from early on in the development of UC, those losses would be notional, not actual, losses.
viii. The notional losses are, in any event, a consequence of the different rates of support available to claimants of UC and of PC, rates of which D can be taken at all times to have been aware. They are an intrinsic feature of the policy choice that MACs should be entitled to UC and not to PC.
ix. Those rates of support are different because PC is a benefit for those who, because of their age, are seen as being entitled to support from the state which does not depend on their making any efforts to look for work, or to work, whereas UC is a benefit for those who are expected to work.
x. The MAC policy is one aspect of a wide-ranging and (to its promoters, at any rate) coherent set of reforms embodied in the 2012 Act and in the secondary legislation made under it.
xi. From the outset those reforms have had several express aims, not just the 'fundamental rationale' for the MAC policy which Mr Drabble emphasised ('to ensure that the [YP] has the appropriate conditionality applied to them via [UC] and receives relevant support to find work'). That is so, in my judgment, even though the quotation he relies on comes from D's own 2018 EA, and that 'fundamental rationale' is said to underlie the MAC policy. It is clear from the policy documents as a whole that the general policy aims also include, but are not limited to, the replacement of a complicated system of different benefits for those of working age with one benefit, to have simple rules for deciding entitlement, and to make it easy for claimants to predict, and then to see, the impact and advantage of a small change, such as starting to work for a few hours a week. Even if 'the fundamental rationale' of the MAC policy (as expressed in the 2018 EA) does apply to no conditionality MACs, it does not follow that the other reasons for UC, and for the MAC policy, do not apply to no conditionality MACs. They plainly do apply.
xii. The reforms have many different features, which interact with one another in a wide variety of ways. A review of every single impact of each aspect of the reforms on people with each protected characteristic, let alone a review of every single impact on people (or couples) who have combinations of protected characteristics, would be formidably complicated, and disproportionate. An example of this type of interaction is the policy decision of the Secretary of State in 2011 that a pensioner premium should not be included in UC because of its cost, and because of the risk that if provided, it would undermine work incentives for other groups.
xiii. It is clear from the policy documents that D understood that one effect of UC, once transitional protection had ended, would be that some households with a disabled person would be worse off than under the old regime, because the policy aim was to increase benefits to the most severely disabled, and UC benefits those on low-paid work most. The Government believed that that was justified because money would be directed at the most severely disabled.
xiv. D also believed that UC would promote equality for disabled people by supporting those who were able to work a few hours, especially those with fluctuating hours. UC provided strong incentives to take up 'mini-jobs' with a few hours of work per week. Such mini-jobs could be an important first step back into the labour market for those who had been unemployed for a long time, such as the disabled, or carers. That advantage of the UC regime applies to the YP in a no-conditionality MAC.
xv. D believed that overall, UC would promote equality for women, by supporting them to move into work (for example by help with the costs of childcare). Both men and women would have improved incentives to work. That advantage of the UC regime applies to the YP in a no-conditionality MAC.
xvi. D has considered the impact of introducing UC, and the impact of the MAC policy, over a long period, in many documents, some of which I have summarised. In this case, the policy documents as a whole are relevant when considering whether D had due regard to the listed equality needs when making the 2019 Order, because the 2019 Order did no more than to bring into force a policy which Parliament enacted in the 2012 Act, and the MAC policy was revisited and tested during exchanges between officials and ministers during that period.
xvii. During that consideration, D has mitigated the effect of the MAC policy by delaying its commencement until after the pension ages were equalised, and by the transitional protections.