“(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.” (a) an individual who is not a member of a couple (a ‘single person’), or (b) members of a couple jointly. (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.” … (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. (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 by virtue of sub-paragraph (1)(b)— (i) 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” (i) 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”
“My Lords, this amendment seeks to put an additional element into the amount of UC that is payable for those who are severely disabled and who have no one receiving either carer’s allowance or a carer’s premium for looking after them. In essence it seeks to recreate the current severe disability premium within UC. As such it would involve a significant increase in cost compared with the Government’s plans. That increase stands at£400 million , unless there were other readjustments. However, let us just take it at face value. At face value, it is unaffordable. On Monday the House approved the Government’s plans to simplify the disability-related additions. Instead of the seven different components within the current system of benefits and tax credits for adults, and two further rates in child tax credits for disabled children, UC will just have two rates for both adults and children. By restructuring the rates in this way, we are not looking to make any savings. We are redistributing around£800 million of current spend without returning any savings at all to the Exchequer. The full amount will be reinvested by increasing the higher rate for more severely disabled people.” (Emphasis added)
“a large and complex undertaking. For this reason, it is being introduced in a controlled, phased manner, so as to build capacity safely using a ‘test and learn’ approach whilst reducing legacy benefit costs. It was decided that this gradual build of the UC caseload, with a commensurate scaling down of legacy benefit resourcing, would best be achieved by initially confining access to UC to fresh claimants and to existing claimants who presented a fresh claim by reason of change in circumstances. In due course, the entire population will ‘migrate’ onto UC and legacy benefits will cease to operate.”
“It is the view of Government that there is a distinction between these cohorts (or that there will be when the status of managed migrant in fact comes into effect). Natural migrants are individuals who are, effectively, in the same position as new claimants. The change in circumstances triggers a fresh claim. They are easily recognisable and identifiable by virtue of that fact. Further, the whole process of entering claims by reference to legacy benefits is being phased out and it would make no sense to permit claimants bringing new claims (for whatever reason) to have that entitlement calculated by reference to legacy benefits rather than UC.”
“The Government’s view, however, is that where there is no change in circumstances, these factors do not apply. If the claimant is being managed to UC by changes introduced by the DWP, it is the view of Government that there should be a degree of protection against a reduction in entitlement by reference to the transition.” reduction in entitlement by reference to the transition.”
“The Universal Credit (UC) Policy Briefing Note, published13 May 2011 , laid out our approach to Transitional Protection (TP). We have said that TP will be awarded where the total amount of household benefit is less under UC than the current system and where the claimant is ‘managed moved’ to UC and where circumstances remain the same: no TP is available for ‘natural’ migrations.”
“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 …”
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race … or other status.”
“The Court recalls thatArticle 14 of the Convention protects against a discriminatory difference in treatment of persons in analogous positions in the exercise of the rights and freedoms recognised by the Convention and its Protocols. It observes in this connection that in the constituent parts of the United Kingdom there is not always a uniform approach to legislation in particular areas. Whether or not an individual can assert a right derived from legislation may accordingly depend on the geographical reach of the legislation at issue and the individual’s location at the time. For the Court, in so far as there exists a difference in treatment of detained suspects under the 1988 Order and the legislation of England and Wales on the matters referred to by the applicant, that difference is not to be explained in terms of personal characteristics, such as national origin or association with a national minority, but on the geographical location where the individual is arrested and detained. This permits legislation to take account of regional differences and characteristics of an objective and reasonable nature. In the present case, such a difference does not amount to discriminatory treatment within the meaning ofArticle 14 of the Convention .”
“Decisions both in our Courts and in the Court of Human Rights therefore combine to lead me to the confident conclusion that, as a severely disabled child in need of lengthy in-patient hospital treatment, [the appellant] had a status within the grounds of discrimination prohibited by Article 14. Disability is a prohibited ground … Why should discrimination (if such it be) between disabled persons with different needs engage Article 14 any less than discrimination between a disabled person and an able-bodied person? …”
“In conclusion, the references cited above show clearly in my view that to limit intervention to a ‘significant error of principle’ is too narrow an approach, at least if it is taken as implying that the appellate court has to point to a specific principle – whether of law, policy or practice – which has been infringed by the judgment of the court below. The decision may be wrong, not because of some specific error of principle in that narrow sense, but because of an identifiable flaw in the judge’s reasoning, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion. However, it is equally clear that, for the decision to be ‘wrong’ underCPR r 52.11 (3), it is not enough that the appellate court might have arrived at a different evaluation. As Elias LJ said in R (C) v Secretary of State for Work and Pensions[2016] PTSR 1344 , para. 34: ‘the appeal court does not second guess the first instance judge. It does not carry out the balancing task afresh as though it were rehearing the case but must adopt a traditional function of review, asking whether the decision of the judge below was wrong …’” ‘the appeal court does not second guess the first instance judge. It does not carry out the balancing task afresh as though it were rehearing the case but must adopt a traditional function of review, asking whether the decision of the judge below was wrong …’”
“Applying the approach to justification favoured by the defendant, the decision to move a group of persons previously eligible for SDP and EDP onto universal credit because they move to another local housing authority area, without considering the need for any element of transitional protection (particularly in the light of earlier Government statements that an element of protection may be needed and the circumstances in which it should continue needed to be defined) is manifestly without reasonable foundation.” (Emphasis added)
“In any event, the material before the court does not establish that the Transitional Regulations as they stand strike a fair balance between the interests of the individual and the interests of the community in bringing about a phased transition to universal credit. The impact on the individuals is clear. They were in receipt of certain cash payments (the basic allowance and SDP and EDP). They are now in receipt of cash payments which, overall, are significantly lower than the amount previously received. They are a potentially vulnerable group of persons as the Government in its own material recognises. On the material before me, there appears to have been no consideration of the desirability or justification for requiring the individual to assume the entirety of the difference between income related benefits under the former system and universal credit when their housing circumstances change and it is an appropriate moment to transfer them to universal credit. That is all the more striking given the Government’s own statements over a number of years that such persons may need assistance and that there was a need to define with precision the circumstances in which they would not receive such assistance. In all the circumstances of this case, the operation of the implementation arrangements in the way they do is manifestly without reasonable foundation and fails to strike a fair balance.” (Emphasis added)
“The duty of candour is a duty to disclose all material facts known to a party in judicial review proceedings. The duty not to mislead the Court can occur by omission, for example by the non-disclosure of a material document or fact or by failing to identify the significance of a document or fact.”
“… In this respect the situation has moved on since the events which were in issue before May J in TD. Given the provision now made by the Managed Migration Pilot Regulations, the managed migrant group is no longer too speculative to form a proper comparator. … when those Regulations are considered in the context of events since February 2018, it is clear that for SDP claimants the managed migrant group will comprise all of the Regulation 4A Group.”
“What must be justified is the difference in treatment.”
“… Any discriminatory measure inevitably affects a smaller rather than a larger group, but cannot be justified on the ground that more people would be adversely affected if the measure were applied generally. What has to be justified is not the measure in issue but the difference in treatment between one person or group and another. …” (Emphasis added)
“decisions on such matters are primarily for the Executive. The degree of respect to be afforded by the court to decisions of this nature is substantial, and the question for the court is whether or not the decision is ‘manifestly without reasonable foundation’.”
“This claim is not directed to the difference in the level of benefits paid to severely disabled persons under the legacy benefit system and under the Universal Credit system.”
“No sufficient explanation for the difference in treatment has been provided. The Secretary of State's ‘bright line’/administrative efficiency submission explains the treatment of the SDP natural migrant group on its own terms, but does not explain why that group is treated differently to the Regulation 4A group. Both groups comprise severely disabled persons; all of whom meet the criteria for payment of SDP (or would continue to meet those criteria but for natural migration). The simple fact of natural migration is not a satisfactory ground of distinction because the trigger conditions for natural migration are not indicative of any material change in the needs of the Claimants (or the other members of the SDP natural migration group), as severely disabled persons. The same point is sufficient to dispose of the further suggestion in Miss Young's witness statement that the Secretary of State considered the SDP natural migrants as being in materially the same position as new welfare benefits claimants (i.e. severely disabled persons presenting themselves to the welfare benefits system for the first time, after the implementation of Universal Credit). There is no logical foundation for that view; if there were a logical foundation for it, it would negate the rationale for regulation 4A of the Transitional Provisions Regulations.”
“The requirement of justification brings with it the burden of explanation. Overall, I am not satisfied that the Secretary of State has identified any reason that explains the different treatment of the SDP natural migrant group from the Regulation 4A group. The standard that the Claimants must meet for this purpose is the manifestly without reasonable foundation standard. Even though that standard is low (so far as the burden it places on the Secretary of State), as I have explained, there is a mis-match between the reasons the Secretary of State relies on, and the difference in treatment that needs to be justified.” (Emphasis added)
“… acceptance that savings in public expenditure can constitute a legitimate aim for the purposes of Article 14 does not entail that that aim will in itself constitute a justification for discriminatory treatment. … [T]he question whether a discriminatory measure is justifiable depends not only on its having a legitimate aim but also on there being a reasonable relationship of proportionality between the means employed and the aims sought to be realised.”
“Saving cost is, of course, a legitimate objective of public policy. But, as the Court of Justice of the European Union emphasised in O’Brien … ‘budgetary considerations cannot justify discrimination’. In other words, if a benefit is to be limited in order to save costs, it must be limited in a non-discriminatory way. …”
“62. I expect that the concern that lies behind the point at paragraph 64 of Miss Young's statement (and see also, paragraph 6.1 of the submission to Ministers, set out above, at paragraph 35), is that if something that looks like Transitional Protection is extended to the SDP natural migrant group, other natural migrants who have the benefit of no transitional provision at all, would attempt to piggy-back on that to found their own claims. Thus, piece by piece, the Secretary of State's policy might be dismantled. 63. Even were such a risk to exist I do not consider it would be capable of amounting to justification of the difference of treatment in issue in this case. The premise for the argument would have to be that the piggy-back claims would be valid in law. I cannot see how it could be a defence to the claim of discrimination brought by the Claimants in this case, to say that it was necessary they be subjected to less favourable treatment to guard against the possibility that other, legally valid, claims might be made against the Secretary of State. In any event, I do not consider that any fear of piggy-back claims is realistic. Different treatment for both the SDP natural migrant group and the Regulation 4A group, as opposed to natural migrants generally, is explicable for the reasons highlighted by the House of Commons Select Committee. Those reasons are specific to the severely disabled who met the conditions for entitlement to SDP under the legacy benefits system. This was the position taken in the February 2018 Departmental presentation. For the avoidance of doubt, my reasoning in this judgment is directed solely to whether the distinction in treatment under the Transitional Provisions Regulations between (a) the SDP natural migrant group; and (b) the Regulation 4A group, is justified in law. No part of the reasoning in this judgment should be taken to suggest that if the Claimants’ case succeeds, the distinction that otherwise exists under the Secretary of State's policy between natural migrants and managed migrants, is legally invalid.” (Emphasis added)
“[T]he trigger events are not aligned to any material change of circumstances relevant to the needs of SDP claimants.”
“Where an early release scheme applies differently to prisoners depending on the length of their sentences, there is a risk that, unless the difference in treatment is objectively justified, it will run counter to the very purpose of Article 5, namely to protect the individual from arbitrary detention.”