Exclusion of legacy benefits from Covid-19 uplift…

In March 2020, in response to the Covid-19 pandemic, the government introduced the Social Security (Coronavirus) (Further Measures) Regulations 2020 (‘the Regulations’) which implemented a temporary uplift of £20 per week to Universal Credit. The uplift was initially introduced for twelve months and was subsequently extended for a further six months, so that it expired in October 2021.

As is well known, Universal Credit is in the process of being ‘phased in’ to replace Universal Credit. A significant number of people continue to receive legacy benefits, although no new claims can be made for these payments and anyone still receiving is entitled to transfer to Universal Credit should they wish to do so. The number of disabled persons receiving legacy benefits is greater than the number of disabled persons receiving Universal Credit (as a proportion of the total number of recipients).

Application for Judicial Review

In T and Others v Secretary of State for Work and Pensions [2022] EWHC 351, four individuals who were in receipt of legacy benefits (Employment and Support Allowance, Income Support, and Jobseeker’s Allowance) brought an application for judicial review for the failure to extend the uplift to those in their position. It was argued that the restriction of the increase to Universal Credit was in breach of Article 14 of the European Convention on Human Rights (ECHR) on the grounds that it constituted unlawful direct discrimination against them on grounds of their ‘other status’ as persons in receipt of legacy benefits; and further constituted unlawful indirect discrimination on grounds of disability.

The claim for judicial review was dismissed by Swift J ([2022] EWHC 351 (Admin)). The High Court rejected the claim based on direct discrimination, holding that that receipt of legacy benefits was not a relevant ‘other status’ for the purposes of Article 14 European Convention on Human Rights because that status was ‘defined solely by reference to the difference complained of’ (following the decision of the Supreme Court in R (SC) v. Secretary of State for Work and Pensions [2021] 3 WLR 428). As to the claim for indirect discrimination, though disability was a relevant ‘other status’ the differential treatment of those in receipt of Universal Credit was justified. The court accepted that the increase to Universal Credit was intended to provide stability to the labour market during the pandemic, and facilitate economic recovery once it had passed, by cushioning the impact of a sudden loss of employment.

Appeal to the Court of Appeal

The claimants were granted permission to appeal on a single ground, namely whether the judge had erred in assessing whether the discriminatory effect of the Regulations was justified or proportionate only by reference to the time the measure was enacted and not by reference to the time he heard the application for judicial review. Permission was refused on grounds relating to whether receipt of legacy benefits was an ‘other status’ for the purposes of Article 14; and whether the overall approach to the assessment of justification and / or proportionality had been flawed.

The Court of Appeal dismissed the appeal ([2023] EWCA Civ 24), accepting (as the judge had done) that mitigating poverty was not the sole objective of the uplift, but that the measure was instead targeted at a particular kind of financial disruption namely ‘that experienced by those who had lost or were at risk of losing employment or significant income, and who as a result were making new claims for social security benefits for the first time having previously been financially self-sufficient’.

The Court also accepted that the judge had properly considered the ongoing nature of the decision-making process. The Court accepted that ‘a demonstrable and material change in circumstances that shows that a measure adopted is no longer rationally connected to a legitimate objective, or its impact is significantly different at the time of the challenge being heard than it was when the matter was adopted’ should be taken into account by the reviewing court. However, there was no such change in this appeal; the appellants’ case, that the exceptional circumstances which had justified the provision of the uplift to Universal Credit claimants only in March 2020 no longer applied by the time the measure was renewed in March 2021, was not a matter of fact but a ‘value judgment or opinion on which there is substantial scope for reasonable disagreement’. The appeal was therefore dismissed.

Comment

The judgment illustrates the proper approach to assessing ‘justification’ in the context of alleged discrimination contrary to Article 14 of the ECHR which, as the Court of Appeal put it, is ‘not a mechanical exercise’ but a nuanced and fact-specific one. Even the intensity of review will be adjusted on a case by case basis, taking into consideration: whether the alleged discrimination is direct or indirect; whether it relates to one of the ‘suspect’ grounds indicated in Article 14; whether the measure is temporary / transitional or long-term; the field in which the judgment has been made (with greater latitude in relation to matters raising sensitive moral or ethical issues, and in fields such as economic, social, penal, or national security policy). The case also serves as a reminder of the need for a sharp focus on the objective of the policy or decision challenged, and the very significant weight which the court is inclined to place on the decision-makers own evidence in this connection.

Siân McGibbon is a barrister at Landmark Chambers specialising in public law.