High Court dismisses judicial review challenge to decision not to extend Covid-19-related universal credit uplift to legacy benefits

T & Ors, R (On the Application Of) v Secretary of State for Work And Pensions [2022] EWHC 351 (Admin)

Background

There were four claimants in the case who were all in receipt of legacy benefits - two received employment and support allowance (ESA), one received income support, and one received jobseeker's allowance (JSA).

Issue before the High Court

Mr Justice Swift explains that -

'Between 30 March 2020 and 5 October 2021, the standard allowance element of universal credit was increased by approximately £20 per week. This decision was put into effect by the Social Security (Coronavirus)(Further Measures) Regulations 2020 (the 2020 Regulations), which raised the standard allowance for a single claimant aged over 25 from £323.22 to £409.89, and the Universal Credit (Extension of Coronavirus Measures) Regulations 2021 (the 2021 Regulations) which by regulation 2(1) extended the duration of that increase to 5 October 2021. No corresponding increase was made to the personal allowance element of any of income support, JSA, or ESA. The claimants contend this difference of treatment amounted to unlawful discrimination by reference to their Convention rights under [the European Convention on Human Rights] ECHR article 8, and article 1 of Protocol 1 to the ECHR.' (paragraph 1)

Decision

Mr Justice Swift dismisses the claim for judicial review.

Reasons for decision

Mr Justice Swift notes that -

'The claimants raise two discrimination claims. Each claim rests on article 14 ECHR, read together with either article 1 Protocol to the ECHR, or ECHR article 8. Each claim is of discrimination on grounds of 'other status'. The first claim, pursued by all four claimants, is that the increase in the universal credit standard allowance made by the 2020 Regulations comprised unlawful direct discrimination on grounds of their status as persons in receipt of a legacy benefit. The second claim, pursued by the first, second and third claimants is a claim of indirect discrimination on grounds of disability.' (paragraph 16)

Having rejected the submission that being a person in receipt of legacy benefits amounts to an 'other status' for the purposes of a direct discrimination claim, Mr Justice Swift says that -

'There is no dispute that disability is capable of being a relevant 'other status' for the purposes of an article 14 claim. The factual premise of the claimants' claim is that the number of disabled persons in receipt of legacy benefits as a proportion of persons still receiving those benefits is greater than the number of disabled persons receiving universal credit as a proportion of the total number of those claimants. The Secretary of State disputes this premise. She submits that any comparison or consideration of whether persons in receipt of the legacy benefits are subject to particular disadvantage must take account of not just the personal allowance, but also the premium payments made by reason of disability which are part of the legacy benefits. However, it seems to me that if this is a relevant matter, it is better considered in the context of justification rather than treated as a point barring the claimants from establishing an in-principle claim that requires reasoned response.' (paragraph 25)

However, Mr Justice Swift goes on to conclude that the difference in treatment of universal credit claimants over those claiming legacy benefits resulting from the 2020 Regulations was justified -

'The decision to increase the universal credit standard allowance was one of a series of decisions made at the beginning of the pandemic. The reasons for the decision are set out in a witness statement dated 22 June 2021 made by Kerstin Parker, the Deputy Director for Universal Credit at the DWP. By the end of March 2020, the government's objective was to take steps to preserve stability in the labour market in the short term, to provide a basis for rapid economic recovery once the pandemic had passed. The best-known measure in support of this objective was the Job Retention Scheme (usually referred to as the furlough scheme) which made it possible for many who would otherwise have been dismissed in consequence of the March 2020 lockdown, to remain in employment. The increase to the standard allowance was a way of providing additional support to those who did lose jobs or income because of the pandemic and became reliant on universal credit for the first time. This group would face particular disruption as a result. Ms Parker explains that the increase was intended to cushion the sudden impact of loss of employment or reduced employment. I accept this was legitimate objective. The decision to increase the standard allowance was made in anticipation of a dramatic rise in the numbers of new benefits claimants. The evidence before me shows that this is what happened. From March 2020 the number of people claiming universal credit rose dramatically. In the four weeks to 9 April 2020 there were 1.2 million new claimants. In the next five weeks (to 14 May 2020) there were 1.1 million further new claims, and the rate of new claims was running at between 20,000 and 25,000 per day, double the rate prior to the pandemic. By mid-May 2020 the total number of persons claiming universal credit was 5.3 million (approaching double the number of claimants in receipt of Universal Credit at the beginning of March 2020), and by 2021 6 million people were in receipt of that benefit. In the premises, the Secretary of State had legitimate reason to act to address a situation she had accurately anticipated.' (paragraph 30)

Mr Justice Swift adds that -

'The central question raised by the claimants' discrimination claims is whether it was lawful for the Secretary of State to direct her attention to the position of new benefits claimants - all of whom would have made claims for universal credit. I consider that she was. New benefits claimants would need to adjust to a loss in income. They would be affected differently to persons already claiming benefits. Given the objective pursued by the 2020 Regulations and the circumstances in which the decision to make those Regulations was made, legal scrutiny of the decision to make the 2020 Regulations must allow the Secretary of State a degree of latitude. All this being so, the distinction between the legacy benefits personal allowances and the universal credit standard allowance, consequent on the 2020 Regulations, rested on sufficient reason.' (paragraph 31)

In addition, noting that the claimants' submissions focused on the low level of income replacement provided by any of ESA, income support and JSA, Mr Justice Swift says that -

'In absolute terms the amounts paid are low. It is obvious that any person required to rely only on that level of income will suffer hardship. I also accept that in the context of the pandemic it is likely that it may have been more difficult still to meet basic expenses from that level of income. However, these matters are distinct from the justification advanced by the Secretary of State for the decision to make the 2020 Regulations.' (paragraph 34)

Update (5 August 2022) - Osbornes Law reports today that the Court of Appeal has granted permission to appeal against the High Court's judgment.