“(1) An award of universal credit is to include an amount (“the carer element”) specified in the table in regulation 36 where a claimant has regular and substantial caring responsibilities for a severely disabled person … … (4) Where an amount would, apart from this paragraph, be included in an award in relation to a claimant by virtue of paragraphs (1) to (3), and the claimant has limited capability for work and work-related activity … only the LCWRA element may be included in respect of the claimant.”
“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”
“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.”
“(1) does the alleged discrimination concern the enjoyment of a Convention right, such as article 1, Protocol 1 or article 8? (2) has the claimant been treated less favourably than a similarly situated group of people? (3) is the difference in treatment on the ground of a "status" recognised under article 14? (4) is there an objective and reasonable justification for the difference in treatment?”
“(1) The court has established in its case law that only differences in treatment based on an identifiable characteristic, or ‘status’, are capable of amounting to discrimination within the meaning of article 14. (2) Moreover, in order for an issue to arise under article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. (3) Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. (4) The contracting state enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and the background.””
“49. … This claim is not directed to the difference in the level of benefits paid to severely disabled persons under the legacy benefits system and under the universal credit system. Nor is the claim directed to any general proposition that article 14 requires transitional provision to be paid at any specific level. The claim does concern the arrangements for transitional provision, but it is directed only to one narrow matter - the justification of the difference in treatment between the members of two groups, the SDP natural migrant group and the regulation 4A group, respectively. The members of each of these groups met, and had legacy benefits remained in place would have continued to meet, the eligibility requirements for SDP. In this context, the argument that article 14 does not per se generate the need for specific transitional provision loses its force, because the present case is one where the Secretary of State has decided to make transitional provision but has chosen to do so in different ways for the different groups. … 51 … the no turning back principle does not itself explain or provide a reason for the distinction between the transitional arrangements applied to the SDP natural migrant group and those that apply to the regulation 4A group. The reason why this is so is underlined by the nature of the trigger events that caused natural migration of SDP claimants (prior to the application of regulation 4A). As demonstrated by the circumstances of TP and AR, the trigger events are not aligned to any material change of circumstances relevant to the needs of SDP claimants. Thus, natural migration is not any indication either that the circumstances of the members of the SDP natural migrant group are likely to be any different from those who are members of the regulation 4A group, or that there is any particular reason to treat the members of the two groups differently. … 60. … 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 ...”
“37. In the light of the issues that arise on the appeal in TP (No 1), what is significant about the evidence of Ms Young in those proceedings is not so much what she says but what she does not say. As will become apparent, Lewis J considered that it was of crucial importance that there was no evidence placed before the High Court to explain what the objective justification was for the difference in treatment as between the affected group of which TP and AR were members (people with severe disability who moved from one local authority to another) and those who moved but remained within the same local authority area. ... 127. The fundamental difficulty that the Secretary of State faces is that there was no evidence placed before Lewis J on her behalf to explain the difference in treatment between the comparator groups. On the evidence that was placed before him, there appeared to have been no consideration of this issue … The reality was that the Secretary of State had simply not placed evidence before Lewis J which would assist him in deciding that there was a reasonable foundation for the difference in treatment. ... 158. At para 45 of his judgment Swift J rightly observed that, in an article 14 case: “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 in original)
“This claim is not directed to the difference in the level of benefits paid to severely disabled persons under the legacy benefits system and under the universal credit system.”
“…the classic Strasbourg statements of the law do not place any emphasis on the identification of an exact comparator. They ask whether "differences in otherwise similar situations justify a different treatment." 67. Mr Edwards referred me to R (T) v Secretary of State for Work and Pensions[2022] EWHC 351 (Admin) , in which Swift J reviewed the authorities and concluded that a holistic approach was called for: “As is obvious from the authorities, any discrimination claim can contain a range of what can be described as moving parts – for example the closeness of the analogy that exists, the extent of the difference in treatment, and so on. In many instances, discrimination claims are better decided considering all these matters as part of a single exercise that includes justification, rather than taking each in turn as one of a series of discrete preconditions standing in the way of the need for any justification. In most instances the issue will not simply be whether some distinction can be drawn between the claimant and his comparator, but whether any distinction is a relevant distinction. This can require consideration of all evidence, including what is said by way of justification.” 68. Both parties agreed that it was appropriate for me to take such a “holistic” approach, which is what I have decided to do.” “such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous, where the position is not so clear, a different approach is called for. Then the court's scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact.” “…the classic Strasbourg statements of the law do not place any emphasis on the identification of an exact comparator. They ask whether "differences in otherwise similar situations justify a different treatment." “As is obvious from the authorities, any discrimination claim can contain a range of what can be described as moving parts – for example the closeness of the analogy that exists, the extent of the difference in treatment, and so on. In many instances, discrimination claims are better decided considering all these matters as part of a single exercise that includes justification, rather than taking each in turn as one of a series of discrete preconditions standing in the way of the need for any justification. In most instances the issue will not simply be whether some distinction can be drawn between the claimant and his comparator, but whether any distinction is a relevant distinction. This can require consideration of all evidence, including what is said by way of justification.”
“It is always necessary to look at the question of comparability in the context of the measure in question and its purpose, in order to ask whether there is such an obvious difference between the two persons that they are not in an analogous situation. The factors linking the claim to [the substantive article in issue] are also relevant to this question.”
“211 … the ‘very purpose’ of A1P1 combined with Article 14 is to prevent people being arbitrarily deprived of their possessions … in a way which discriminates against them. The effect of the substantial drop in income on these severely disabled benefits recipients is particularly harsh because of their particular needs and vulnerabilities …”
“Where a conscious, deliberate decision by a government department is taken on the distribution of finite resources, the need for restraint on the part of a reviewing court is both obvious and principled. Decisions on social and economic policy are par excellence the stuff of government. But where the question of the impact of a particular measure on social and economic matters has not been addressed by the government department responsible for a particular policy choice, the imperative for reticence on the part of a court tasked with the duty of reviewing the decision is diminished.” “Where a conscious, deliberate decision by a government department is taken on the distribution of finite resources, the need for restraint on the part of a reviewing court is both obvious and principled. Decisions on social and economic policy are par excellence the stuff of government. But where the question of the impact of a particular measure on social and economic matters has not been addressed by the government department responsible for a particular policy choice, the imperative for reticence on the part of a court tasked with the duty of reviewing the decision is diminished.”
“has been treated differently [as a person moving from specified accommodation to mainstream accommodation] compared to someone … who moves from mainstream rented accommodation to another cheaper mainstream rented property” (see [23] of the FtT statement of reasons). 92. That is clearly the case, because the calculation that was made upon the relevant change of circumstances (the Claimant moving from specified to mainstream accommodation) took into account her new entitlement (i.e. to the Housing Costs Element of Universal Credit in the amount of£366.37 per month) but it ignored what she had lost in terms of her entitlement to Housing Benefit (in the amount of£613.12 per month). This resulted in the Claimant losing the entirety of her£285 per month Transitional Element of Universal Credit in one fell swoop. By contrast, the calculation for a claimant who moves from mainstream rented accommodation to another cheaper mainstream rented property would take into account both the gain and the loss experienced, so they would experience no erosion at all. For example, moving from a mainstream property with a monthly rent of£500 to another mainstream property with a rent of£400 , they would be treated as having experienced no “relevant increase” because the gain of£400 per month was cancelled out by the loss of the£500 per month, and so any Transitional Element award would be unaffected. Similarly, claimants moving from one specified accommodation setting to another would be treated as experiencing “no relevant increase”, as would claimants moving from mainstream rental accommodation to specified accommodation. The only category treated as experiencing a “relevant increase” to the full extent of their award of Housing Costs Element is those moving from either specified or temporary accommodation into mainstream rental accommodation. 93. The Secretary of State doesn’t accept the applicability of the “person 1” and “person 2” comparators identified by the First-tier Tribunal, pointing out that the essence of these comparators was that each had either always been in receipt of Housing Benefit or had never been in receipt of Housing Benefit. By contrast, the Claimant received the Housing Costs Element of Universal Credit upon migration, then had a period of receiving Housing Benefit when she moved into specified accommodation (upon which change of circumstances her entitlement to the Housing Costs Element ceased), and then received the Housing Costs Element again upon her second change of circumstances when she moved into mainstream rented accommodation, and ceased to be entitled to Housing Benefit. 94. Mr Edwards proposed different comparators: someone who receives Housing Benefit because they are in specified accommodation on the one hand, and someone who does not receive Housing Benefit because they are in a different type of rented accommodation on the other. 95. I find the Secretary of State’s position somewhat puzzling. While I agree that the difference in the respective positions of the First-tier Tribunal’s “person 1”, “person 2” and the Claimant are as he described (and as I have summarised above), I don’t see why this makes the First-tier Tribunal’s choice of comparators inapposite. Rather, it is this very difference that highlights the difficulty with which we are concerned. That is what makes the choice of comparators apposite. 96. In Re McLaughlin[2018] UKSC 48 ,[2018] 1 WLR 4250 Baroness Hale explained: “26. It is always necessary to look at the question of comparability in the context of the measure in question and its purpose, in order to ask whether there is such an obvious difference between the two persons that they are not in an analogous situation. The factors linking the claim to [the substantive article at issue] are also relevant to this question…” 97. The factors that link this claim with the substantive ECHR article at issue are the same ones that Rose LJ identified in TP (CA), and quoted above: “211 … the ‘very purpose’ of A1P1 combined with Article 14 is to prevent people being arbitrarily deprived of their possessions … in a way which discriminates against them. The effect of the substantial drop in income on these severely disabled benefits recipients is particularly harsh because of their particular needs and vulnerabilities …” 98. The Secretary of State argued that the Claimant’s comparators incurred “a different liability for paying rent attendant on the move between the accommodation”, but there is nothing inherent in the nature of a tenancy or license of “specified” accommodation that makes this so, and it is unclear why it would render their situation incomparable if it there was such a difference. The real difference seems to be that specified accommodation is funded through Housing Benefit administered by the local authority, while the Housing Costs Element of Universal Credit is funded centrally. 99. The Secretary of State hasn’t persuaded me that the mere change from one category of accommodation to another inherently makes the situations of the Claimant and comparators 1 and 2 incomparable. This is the kind of “unduly technical” distinction that was rejected in TP (CA), and I reject it here. As Mr Royston observed, if every difference made situations incomparable there would be no comparators for anything. 100. Mr Edwards encouraged me to assess the issues of comparators, differential treatment and justification against the backdrop of the rationale for Parliament’s policy decisions: (1) to erode the transitional protections provided to prevent sudden “cliff” losses to vulnerable claimants, (2) to carve Housing Benefit out of the Universal Credit scheme, (3) to keep specified accommodation within Housing Benefit so that its higher costs wouldn’t be caught by the ‘benefit cap’ calculation and because local authority social services teams were best placed to assess claimants’ needs, and (4) to disregard receipt of Housing Benefit for the purpose of calculating entitlement to Universal Credit. 101. He warned me that these were “polycentric policy matters” that were properly for the legislature to decide, and were not amenable to be reconsidered by the courts or tribunals. He reminded me that when Parliament makes changes to the law ‘bright line’ rules will often be introduced in the interests of predictability and legal certainty, citing Lord Bingham’s words in R (Animal Defenders International) v Secretary of State for Culture, Media and Sport[2008] UKHL 15 at [33]: “… legislation cannot be framed so as to address particular cases. It must lay down general rules … A general rule means that a line must be drawn, and it is for Parliament to decide where. The drawing of a line inevitably means that hard cases will arise falling on the wrong side of it, but that should not be held to invalidate the rule if, judged in the round, it is beneficial.” 102. He also referred me to the dissenting judgment of Lords Reed and Sumption JJSC in R (Tigere) v Secretary of State for Business, Innovation and Skills[2015] UKSC 57 at [93], urging restraint in interfering with the choices made by those who are democratically accountable. 103. I accept that it is well-established that Parliament has a wide discretion in deciding where to draw such lines, and I must accept that it is all the more so where the legislation in question takes the form of transitional regulations. 104. I note, however, that the provisions with which we are concerned are comprised in a statutory instrument introduced by way of “negative procedure”
“The transitional element – initial amount and adjustment where other elements increase” (my emphasis). 107. In the case of the Claimant and those sharing her status, however, the erosion occurs despite there being no increase in their benefit entitlement at all. Indeed, in the Claimant’s case there was a significant reduction in her benefit in respect of rent and service charge of£246.75 due to her moving out of specialist accommodation into much cheaper mainstream accommodation. 108. Mr Edwards characterised the Claimant’s case as an attack on the erosion principle. That is certainly not how Mr Royston presented it. Indeed, he said that to the contrary the Claimant accepts the principle of erosion. He says that erosion should apply to the Claimant and those of her status, just as it does to other claimants, but he maintains that the Claimant’s loss of her Transitional Element is not properly characterised as ‘erosion’. I agree. 109. The loss of transitional protection experienced by the Claimant on moving from specified accommodation (or temporary accommodation as defined in paragraph 3B of Schedule 1 to the 2013 Regulations) to mainstream accommodation is not incremental and gradual, but sudden and total. The regulations apply to expose the Claimant and her cohort of vulnerable people with disabilities to precisely the “cliff-edge” income loss that the High Court found to be unlawful in TP1, and which the Transitional Protection Regulations were introduced to remedy. Further, the elimination of the transitional protection occurs in circumstances where there is no increase in the Claimant’s benefit, so it is inconsistent with the “erosion principle”
“28. The Representative addressed the question as to whether the difference in treatment could be objectively justified, stating that, “[the Claimant] is unaware of any justification for the differential treatment and the Secretary of State for Work and Pensions has not attempted to provide justification. Indeed, they state in their Mandatory Reconsideration decision (at page 71) “I must clarify that there is no dispute that the above sequence of events represents circumstances largely outside of your control.” 113. This explanation is admittedly brief, but it must be read in context. I note that the First-tier Tribunal judge made case management directions inviting the parties to make sequential submissions and listed the appeal for an oral hearing. The Secretary of State declined to make further submissions and seemingly chose not to be represented at the oral hearing (which was listed as a telephone hearing). It was for the Secretary of State to demonstrate justification, not for the Claimant to show that there was none. In the absence of submissions or evidence on justification there perhaps wasn’t much more to be said by the judge. 114. In the proceedings before the Upper Tribunal there was an oral hearing, and both parties were represented. By way of justification, Mr Edwards cited Parliament’s clear decision to reform the benefits system, and to do so in a way which did not replicate all that had gone before. It decided not to replicate certain of the premiums included in the legacy benefits except to the extent of transitional protections, and it decided that those protections would erode over time with increases in benefits. 115. This is just where Parliament chose to draw the line, Mr Edwards explained. That decision was not manifestly without foundation, and so it should be respected. To the extent that there was less favourable treatment on a discriminatory basis it was justified because Parliament was entitled to reform benefits and there was no right to benefits staying the same. 116. However, what must be justified is “the difference in treatment; it is not enough to show that the underlying policy is justified” (see TD and others v SSWP[2020] EWCA Civ 618 at [57] per Singh LJ). 117. The Secretary of State offered no evidence to show that the potentially discriminatory effect on the Claimant and those sharing her status was considered before the relevant legislation was made law, or that any thought was given to how this effect could be mitigated. 118. The Secretary of State has not explained why, to achieve the legitimate aims identified by Mr Edwards, it is necessary that those in the Claimant’s position should not be afforded the same protection from cliff-edge loss that the High Court held to be necessary in TP1 to protect those who experience such a loss as a result of a move from one local authority to another triggering a transition from a legacy benefit into Universal Credit. 119. The administration of social security benefits is a very complicated business, and this is relevant to an assessment of the proportionality of measures which have a discriminatory effect. However, no evidence was adduced to demonstrate that it would be administratively complicated, burdensome or costly to identify those who share the Claimant’s status and to treat them in a way which does not subject them to a cliff-edge income loss, for instance by applying erosion only in circumstances where the claimant enjoys an increase in benefit payments. 120. Mr Edwards maintained that the proper standard of review was “manifestly without reasonable foundation”
“88 … 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 [U]niversal [C]redit…” 124. The same applies in this case to the Transitional Regulations as amended. For all of these reasons, Ground 4 also fails.” “28. The Representative addressed the question as to whether the difference in treatment could be objectively justified, stating that, “[the Claimant] is unaware of any justification for the differential treatment and the Secretary of State for Work and Pensions has not attempted to provide justification. Indeed, they state in their Mandatory Reconsideration decision (at page 71) “I must clarify that there is no dispute that the above sequence of events represents circumstances largely outside of your control.” “88 … 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 [U]niversal [C]redit…”
“106. However, there is a very important difference in the way that erosion applies to the Claimant and anyone sharing her status on the one hand, and those who do not share that status on the other. Where Universal Credit claimants who do not share the Claimant’s status experience erosion of their transitional protection it is because the benefit they receive has gone up (whether by way of annual uprating, an increase in their housing costs, or a new or increased entitlement to some other element). Despite experiencing erosion, they receive no less benefit. Rather they experience less of an increase in benefit than they would have done without erosion. This is the way that erosion is supposed to work. There is a clue in the heading to regulation 55 of the Transitional Regulations (as amended): “The transitional element – initial amount and adjustment where other elements increase” (my emphasis). 107. In the case of the Claimant and those sharing her status, however, the erosion occurs despite there being no increase in their benefit entitlement at all. Indeed, in the Claimant’s case there was a significant reduction in her benefit in respect of rent and service charge of£246.75 due to her moving out of specialist accommodation into much cheaper mainstream accommodation. 108. Mr Edwards characterised the Claimant’s case as an attack on the erosion principle. That is certainly not how Mr Royston presented it. Indeed, he said that to the contrary the Claimant accepts the principle of erosion. He says that erosion should apply to the Claimant and those of her status, just as it does to other claimants, but he maintains that the Claimant’s loss of her Transitional Element is not properly characterised as ‘erosion’. I agree. 109. The loss of transitional protection experienced by the Claimant on moving from specified accommodation (or temporary accommodation as defined in paragraph 3B of Schedule 1 to the 2013 Regulations) to mainstream accommodation is not incremental and gradual, but sudden and total. The regulations apply to expose the Claimant and her cohort of vulnerable people with disabilities to precisely the “cliff-edge” income loss that the High Court found to be unlawful in TP1, and which the Transitional Protection Regulations were introduced to remedy. Further, the elimination of the transitional protection occurs in circumstances where there is no increase in the Claimant’s benefit, so it is inconsistent with the “erosion principle”
“116. However, what must be justified is “the difference in treatment; it is not enough to show that the underlying policy is justified” (see TD and others v SSWP[2020] EWCA Civ 618 at [57] per Singh LJ). 117. The Secretary of State offered no evidence to show that the potentially discriminatory effect on the Claimant and those sharing her status was considered before the relevant legislation was made law, or that any thought was given to how this effect could be mitigated. 118. The Secretary of State has not explained why, to achieve the legitimate aims identified by Mr Edwards, it is necessary that those in the Claimant’s position should not be afforded the same protection from cliff-edge loss that the High Court held to be necessary in TP1 to protect those who experience such a loss as a result of a move from one local authority to another triggering a transition from a legacy benefit into Universal Credit. 119. The administration of social security benefits is a very complicated business, and this is relevant to an assessment of the proportionality of measures which have a discriminatory effect. However, no evidence was adduced to demonstrate that it would be administratively complicated, burdensome or costly to identify those who share the Claimant’s status and to treat them in a way which does not subject them to a cliff-edge income loss, for instance by applying erosion only in circumstances where the claimant enjoys an increase in benefit payments. 120. Mr Edwards maintained that the proper standard of review was “manifestly without reasonable foundation”
“88 … 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 [U]niversal [C]redit…” 124. The same applies in this case to the Transitional Regulations as amended. For all of these reasons, Ground 4 also fails.” “88 … 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 [U]niversal [C]redit…”
“(1) The initial amount of the transitional element is— (a) if the indicative UC amount is greater than nil, the amount by which the total legacy amount exceeds the indicative UC amount; or (b) if the indicative UC amount is nil, the total legacy amount plus any amount by which the income which fell to be deducted in accordance with section 8(3) of the Act exceeded the maximum amount. (2) The amount of the transitional element to be included in the calculation of an award is— (a) for the first assessment period, the initial amount; (b) for the second assessment period, the initial amount reduced by the sum of any relevant increases in that assessment period; (c) for the third and each subsequent assessment period, the amount that was included for the previous assessment period reduced by the sum of any relevant increases (as in sub-paragraph (b)). (3) If the amount of the transitional element is reduced to nil in any assessment period, a transitional element is not to apply in the calculation of the award for any subsequent assessment period. (4) A “relevant increase” is … an increase in any of the amounts that are included in the maximum amount under sections 9 to 12 of the Act (including any of those amounts that is included for the first time) ...”