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Forum Home  →  Discussion  →  Universal credit migration  →  Thread

Defeat for govt in High Court in TP & AR

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shawn mach
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The High Court ruled today that the government’s Universal Credit migration arrangements for those who previously received the Severe Disability Premium and moved onto Universal Credit before 16 January 2019 are unlawful. If the arrangements had been allowed to go ahead they would have left over 10,000 severely disabled people around a £100-a-month worse off.

The case was brought by two men with severe disabilities, known as TP & AR, represented by Leigh Day and a woman, known as SXC, also with severe disabilities represented by Central England Law Centre.

More: https://www.leighday.co.uk/News/2019/May-2019/Government-defeated-again-as-High-Court-finds-atte.aspx

Paul_Treloar_AgeUK
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Good work everyone involved in this.

shawn mach
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Elliot Kent
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If I am understanding the decision correctly, it seems that the Judge is saying that the short-changing of this group would be capable of justification on its own on the basis of cost-savings and administrative convenience (paras 52-58) and it is only because the government’s approach distinguishes between managed migrants who get full transitional protection and natural migrants who get the fixed amount that the provisions amount to discrimination (paras 59-64).

That seems to me quite a disturbing proposition. If the DWP had said that each claimant will receive £20 per month compensation, or each claimant will receive a one off payment of £400, they could also have pleaded “administrative convenience and cost saving” and provided that they also did the same to managed migrants, they might well have gotten away with it.

I think that the primary concern about the £80 figure was not that a round figure in itself was problematic but that it so obviously bore no rational connection to the mischief which the payment was purported to address. The losses suffered by this group which would be roughly £180 in virtually every case. To the point that it looked to all the world like a typo. The DWP’s rationale of not wanting to incorporate the EDP into the calculations is obviously wrong to anybody who understands how these premiums work - I am not quite sure if the UC bigwigs have quite understood that everybody assessed as LCWRA who gets irESA also gets the EDP due to para 7(1)(a), Sch 4, ESA Regs and therefore excising the EDP from the like-for-like calculations is just a nonsensical exercise.

I suppose we will have to see where the new regs go.

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Elliot Kent - 05 May 2019 10:08 AM

The DWP’s rationale of not wanting to incorporate the EDP into the calculations is obviously wrong to anybody who understands how these premiums work - I am not quite sure if the UC bigwigs have quite understood that everybody assessed as LCWRA who gets irESA also gets the EDP due to para 7(1)(a), Sch 4, ESA Regs and therefore excising the EDP from the like-for-like calculations is just a nonsensical exercise.

I actually don’t think they got to the £80 figure just by ignoring the EDP. If that was the case, it would still have been significantly higher than £80.

I think their (warped) thinking was that due to the LCWRA element being significantly higher than the SG in ESA, there was no need to compensate at all. However, it would then have meant that those still getting the LCW element would be better off by approx. £80 (on last year’s figures) compared to those getting LCWRA, which is obviously wrong, so they gave £80 to those getting LCWRA.

[ Edited: 5 May 2019 at 10:47 am by Charles ]
Sarah-B
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Given that the Government is still ‘considering all its options’, continues to justify its position with vague talk of ‘change of circumstance’ and ‘recycling the money to the most severely disabled’, and is appealing the first AR and TP …

The option is there for claimants who have lost out on disability premiums by moving onto UC before 16th Jan to take their own legal action against DWP.

For example, Leigh Day solicitors are taking a Group Action to secure compensation for people and referrals are online

https://www.leighday.co.uk/Employment-discrimination/Current-cases/Universal-Credit-group-action

Daphne
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Judgment now issued in the case of costs following on from the finding that legislation was unlawful.

No costs awarded as new regulations have been issued (the current managed migration pilot regs - SI.No.1152/2019 - issued in July) that provide for compensation (even though there is still a shortfall) and the legality of these is not at issue in these proceedings (para 16) -

The level of transitional payments has now been reconsidered by the Secretary of State, and the New Regulations have been made containing different provision for transitional payment. Those payments will still fall short of transitional protection. However, since it was no part of the conclusion in the liability judgment that parity was required to meet what is required by Convention rights, there is no reason why, for the purposes of this judgment, I need or should assume that the provision now made for transitional payment is unlawful. The legality of the New Regulations is not an issue in these proceedings. On the assumption that the new provisions for transitional payment are lawful, and given that payments under the new regulations are backdated to the date each relevant benefits claimant migrated to universal credit, there is no room for a conclusion that SXC has suffered any financial loss as a result of the discrimination she suffered.

I guess we will have to wait for the third legal challenge under the new regulations - https://www.leighday.co.uk/News/2019/August-2019/Government-faces-third-legal-challenge-to-Universa

[ Edited: 24 Oct 2019 at 01:43 pm by Daphne ]
shawn mach
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Update from Leigh Day:

FOR IMMEDIATE RELEASE: FRIDAY 29 NOVEMBER 2019

Court of Appeal to hear Universal Credit claims

The Court of Appeal will next week hear two appeals brought by the government against Universal Credit claimants with severe disabilities. Two men, known as TP and AR have fought for years against the Universal Credit system which left them worse off when they moved local authority area.

The hearing will begin on Tuesday 3rd December and has been listed for three days at the Royal Courts of Justice in London.

Despite having brought two successful legal challenges against the government, and a further challenge which is on hold pending the outcome of the appeals being heard next week, TP and AR are now having to return to court once again to defend their High Court wins and fight against their unfair treatment under Universal Credit.

The first challenge brought by TP and AR was won in the High Court in June 2018. The men had been forced to move onto Universal Credit when they moved into a local authority area where the new benefit system had been rolled out. Under Universal Credit they lost out on the Severe Disability Premium (SDP) and Enhanced Disability Premium (EDP), leaving them suddenly around £180 a month worse off. This was despite being repeatedly assured they would not be worse off under Universal Credit. The judge found that this was unlawful because those that moved to a different local authority area were being treated differently to those who moved within their local authority area. As a result of their successful legal challenge, the men were paid damages for the pain and suffering caused, compensated for what they had lost and awarded ongoing top-up payments of approximately £180 per month.

The judgment in this first case described a “striking” lack of evidence from the Secretary of State that she had understood or considered the far-reaching consequences for severely disabled people who moved into a different local authority and would be forced onto Universal Credit.

As a result of the first challenge the government attempted to rectify the situation by stopping other severely disabled people migrating onto Universal Credit and therefore abruptly losing out on their SDP and EDP payments. At the same time, they proposed that those, like TP and AR, who had already moved onto Universal Credit would receive transitional top up payments but only at a rate of £80 per month rather than the £180 per month they had actually lost. TP and AR mounted a further legal challenge arguing that short-changing them was unlawful as they were being unjustifiably treated differently to those who had not moved onto to Universal Credit and would continue to receive the full amount of SDP and EDP. The High Court found in their favour.

Over 13,000 severely disabled people are known to have lost out due to the Universal Credit arrangements.

Carolin Ott, from Leigh Day solicitors who represents TP and AR, said:

“Our clients are individuals with severe disabilities and precisely the kind of people Universal Credit was supposed to ensure were supported. The High Court found twice that the unjustified difference in treatment they have now been suffering for several years was unlawful.

“It beggars belief that despite two findings of unlawfulness by two different judges, and new Regulations that acknowledge the need for protection for severely disabled individuals losing their severe disability premium, the government is still determined and spending taxpayers’ money to continue to fight these cases. We hope that the Court of Appeal will uphold the ruling made by the High Court in our clients’ favour to ensure the many affected individuals with severe disabilities receive much needed support.”

ENDS

 

shawn mach
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Daphne
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Judgment due to be handed down next Wednesday 29 January - https://www.justice.gov.uk/courts/court-lists/list-appeal-civil

Ros
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Leigh Day reporting that -

The Court of Appeal has today dismissed the Government’s appeals against two previous court judgments which found that the Secretary of State for Work and Pensions had unlawfully discriminated against thousands of severely disabled people who moved onto Universal Credit.

shawn mach
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Full press release:

FOR IMMEDIATE RELEASE

WEDNESDAY 29 JANUARY 2020

Government loses Universal Credit appeals against claimants with severe disabilities

The Court of Appeal has today dismissed the Government’s appeals against two previous court judgments which found that the Secretary of State for Work and Pensions had unlawfully discriminated against thousands of severely disabled people who moved onto Universal Credit. 

The ruling upholds two successful High Court challenges brought by TP and AR, in which the courts found that individuals previously in receipt of the Severe Disability Premium (“SDP”) and Enhanced Disability Premium (“EDP”) are to be protected against a drop in their income when they move onto Universal Credit. 

The first challenge brought by TP and AR was won in the High Court in June 2018. The men had been forced to move onto Universal Credit when they moved into a local authority area where the new benefit system had been rolled out. Under Universal Credit they lost out on the SDP and EDP, leaving them suddenly around £180 a month worse off. The judge found that this was unlawful because those that moved to a different local authority area were being treated differently to those who moved within their local authority area.

As a result of the first challenge the government attempted to rectify the situation by making regulations which stopped other severely disabled people from migrating onto Universal Credit and provided that those like TP and AR, (who had already moved onto Universal Credit), would receive retrospective and ongoing recompense. However, the Government chose to recompense TP and AR and those like them at a rate of only £80 per month rather than £180 per month which is what they had actually lost.

TP and AR mounted their second legal challenge along with a third claimant SXC (represented by Central England Law Centre) arguing that short-changing them was unlawful as they were being treated differently to those who remained on legacy benefits. The High Court found in their favour in May 2019.

The government, whilst appealing both judgments, increased the top-up payments but only provided recompense of £120 per month rather than the £180 lost. A third legal challenge regarding that decision is pending.

The Court of Appeal in an unanimous judgment handed down today agreed with the lower courts that the Government had unlawfully discriminated against this cohort of severely disabled claimants. The Court also found that the Government had breached its duty of candour by failing to disclose during the first hearing that it had already made a policy decision to stop more severely disabled people from being moved onto Universal Credit and to provide transitional payments for those that already had.

AR said:

“We hope that the Court of Appeal ruling will finally bring an end to our fight for severely disabled people not to be disadvantaged by Universal Credit. It is still so shocking to us that we have had to fight so long and so hard just to get the government to see that their policy is unfair.”

Tessa Gregory, from law firm Leigh Day added:

“Today’s finding that thousands of severely disabled people have been subject to unlawful discrimination should be a wake-up call for the Secretary of State for Work and Pensions.

“The Government states that Universal Credit is protecting the most vulnerable but that has not been the experience of our clients who faced a dramatic reduction in their monthly income when they moved onto the new benefits system and when that was found to be unlawful were offered a monthly top up which didn’t even cover half of that loss.

“We hope that the Government will waste no more time or resources fighting this legal case and will instead get on with what it should have been doing in the first place,  protecting this acutely vulnerable cohort of claimants and overhauling Universal Credit to make it fit for purpose.”

Leigh Day is continuing to bring a separate group claim, on behalf of those who previously received SDP and/or EDP and moved to Universal Credit prior to 16 January 2019, for the full amount lost as well as compensation for any pain and distress caused by the move to UC. We are still taking enquiries and more information can be found on our website. 

TP and AR were represented by Tessa Gregory, Carolin Ott and Lucy Cadd from law firm Leigh Day. Jessica Jones and Zoe Leventhal of Matrix Chambers were instructed.

ENDS

Ros
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shawn mach
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Paul_Treloar_AgeUK
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Fantastic news, well done to all concerned.

Paul_Treloar_AgeUK
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DWP are not looking to appeal this further apparently.

See this tweet from Patrick Butler of the Guardian