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UT decides housing element should not erode TP when moving on from specified accommodation
https://assets.publishing.service.gov.uk/media/65ef30b762ff4898bf87b2f7/UA-2022-001286-UOTH.pdf
Erosion of transitional element when claimant switches from HB to UC housing element after moving on from specified accommodation violates claimant’s human rights and cannot be justified.
I don’t think it is significant that the claimant already had a transitional element when she first moved into specified accommodation, and then back into general needs. I think the same principle applies if the claimant first claimed UC while already in specified accommodation.
This is a great case - thanks for sharing. Agree with your view that this will have wide application for people with a transitional element (either from natural or managed migration) who are on HB & move into mainstream accommodation
Excellent result - A big thank you to Elliot Kent and his team.
Yes, excellent outcome - we’ve now published a rightsnet summary of the case -
Hello all, Shelter has published a blog about the case which, we hope, might help explain in plain English what has happened:
https://blog.shelter.org.uk/2024/03/shelter-legal-win-protects-disability-benefits-for-people-moving-home/
As above, the UT has agreed with our arguments that treating the move from HB-funded accommodation to HCE-funded accommodation as an increase in UC causing the erosion of the SDP TE was unlawful discrimination. As a result, the relevant provisions could be disapplied.
We are pleased with the outcome, which we think is entirely consistent with the reasoning of the TP cases. If exposing disabled claimants to a cliff-edge income loss is unlawful the first time it occurs, then doing so again based on something as arbitrary as the change of funding arrangements for their housing - entirely divorced from any actual increase in income - is just as bad. There was no objective justification offered as to why the Regulations needed to be this way and we hope that they will be very shortly amended.
Peter - I would agree that the fact that the client was at one point receiving the HCE isn’t material to the outcome. The ‘starting point’ insofar as erosion is concerned was at 13/10/20 when we moved from the initial fixed rate SDP transitional payments into the new ‘transitional element’. Any erosion would occur by reference to that starting point at which point housing costs were funded by HB. It wasn’t our case that the prior receipt of the HCE was significant and I do not see that it has formed any part of the Judge’s reasoning.
[ Edited: 12 Mar 2024 at 05:07 pm by Elliot Kent ]This is a great outcome, well done to all involved.
Well done to all concerned, both with the substantive case and judgment but also for being successful in securing exceptional case funding for legal aid which is also impressive.
Well done, this is a great decision.
I have a client who has been affected by this exact issue. He was in receipt of the SDP transitional payment, and moved from temporary accommodation (paid for via HB) to a ‘normal’ tenancy, the costs of which were met through UC. As a result of this move, he lost the transitional amount entirely as the housing costs element eroded the transitional protection. This happened in November 2022, so we are outside of the absolute time limit for disputing the decision.
I am wondering, does anyone have any tactics or suggestions as to how we might reopen this issue for this client? Could we identify another decision made on his entitlement since then (i.e. that we are still in time to dispute), and use it to reopen the argument about the SDP transitional protection? I am aware that the anti-test case rule may well be of relevance. Or would there be any ‘official error’ scope for revisiting the original November 2022 decision? I know that ‘official error’ arguments generally can’t just be based on there being a new interpretation of the law by the UT which was made since the original decision was made.
So basically, any thoughts or suggestions, for someone with a historic decision on this issue?
Many thanks
Alex
We’ve been trying to think this through. Is there anything in how the anti-test case rule operates to prevent a person like Alex’s client from requesting a supersessison, effective from the date of the UT decision, to the effect that this case law should be applied, and their UC should be recalculated from February as if the previous erosion had not occurred? It may well be that by Feb 2024 the transitional element would have been nil anyway due to other changes in the meantime, but in some cases it may not be.
If that’s right, then Alex’s client is presumably in no worse a position than someone whose erosion happened within the last 13 months who hadn’t already completed an MR by February, because they would be caught by the anti-test case rule for the period before this decision was handed down. But we’d welcome any other views on this. Are all the effects of the original decision somehow insulated from this sort of supersession?
Further to this, I have established that my client’s transitional protection would indeed have been eroded to nil, by the time the UT issued its decision on this case.
So in light of this, it seems to me that the anti-test case rule leaves my client’s case dead in the water, because he can’t argue for arrears for any period before the date the UT made its decision (and he can’t appeal the original decision made in 2022 as he is outside of the absolute time limit). By the time the decision was made, a supersession or revision won’t help, as his TP would have been eroded to nil.
I’d be very please if someone could tell me I am wrong about this and that there is some scope for further argument. Is the fact that the UT has said that certain parts of the transitional regulations should be actively disapplied, because they are unlawful, of relevance, rather than just a new interpretation of the meaning of the wording of the regulations? In other words, the very substance of the regs has been found to be unlawful - we have to ignore parts of it - rather just the usual reinterpretation of what exactly ‘cooking’ means, or something like that.
Any thoughts most welcome.
Alex
Just a quick bit of good news to start the week - we now have confirmation that the SSWP will not be seeking to appeal further and the decision is final.
I’d be very please if someone could tell me I am wrong about this and that there is some scope for further argument. Is the fact that the UT has said that certain parts of the transitional regulations should be actively disapplied, because they are unlawful, of relevance, rather than just a new interpretation of the meaning of the wording of the regulations? In other words, the very substance of the regs has been found to be unlawful - we have to ignore parts of it - rather just the usual reinterpretation of what exactly ‘cooking’ means, or something like that.
As far as I know, that’s still caught by the anti-test case rule unfortunately. For example, back when the Howker case decided that certain amendments to reg 27 of the Incapacity for Work regs were ultra vires (summary here), claimants could ignore those amendments to the reg, but only from the date of the Court of Appeal’s judgement.
(Whether applying some notional erosion down to the date of the new case law is the correct approach, is the part I’m still unsure on.)