Universal Credit, disability and transitional protection
R (TD and AD) v SSWP CO/590/2018; R (Reynolds) v SSWP CO/4542/2018
This case continued notwithstanding the Ministerial statement and subsequent draft regulations claiming to provide transitional protection to those disabled people who have moved onto UC ahead of the managed migration process and, as a consequence, lost out on the SDP. The draft regulations do not in fact provide for a disabled adult previously in receipt of SDP to receive an equivalent top up amount in UC if they are in receipt of the LCWRA element and do not address at all the situation of disabled children.
The two cases were heard together at the High Court on 23 & 24 January 2019, and the judgment was given on 1 March. The High Court rejected a claim of unlawful discrimination and refused permission to appeal. CPAG will seek leave to appeal direct to the Court of Appeal.
On 8 February 2018, CPAG issued a claim for permission to apply for judicial review on behalf of two households, each with a person with a disability, challenging the lack of transitional protection or, alternatively, the inability to return to legacy benefits once an award for universal credit has been made, in circumstances where the DWP makes a decision terminating an individual’s award of a legacy benefit, which is subsequently shown to have been a wrong decision and is overturned, and the individual is financially worse off under UC.
Grounds of challenge
The policy preventing an individual returning to legacy benefits or, alternatively, the lack of transitional protection in situations where an individual has their legacy benefits wrongly terminated and goes on to claim universal credit is challenged on the basis that:
(i) DWP’s policy is irrational - individuals in such a situation have not undergone a change of circumstances nor have they chosen to claim UC and as such there is no rational basis for treating them differently from those who are moved onto UC under the managed migration process who will receive transitional protection against any cash loss under UC.
(ii) the policy is discriminatory, including on the grounds of disability– incorrect decisions that a person no longer qualifies for a sickness or disability related benefits are more common than for other benefits and those with a disabled person in the household are more likely to be cash losers under UC than under legacy benefits.
(iii) breach of public sector equality duty – neither the equality impact assessment which accompanied the UC proposals in the Welfare Reform Act 2012 nor the subsequent impact assessment addressed the situation of those whose legacy benefits are incorrectly terminated, let alone the particular impact on those with a disability.
The first case is brought on behalf of TD and AD, a mother and daughter. TD, a single parent, gave up her work as a laboratory chemist to care full time for AD. AD, who suffers from severe sickle cell anaemia and epilepsy, was receiving disability living allowance ("DLA") at the middle rate care component and lower rate mobility component. TD was, in turn, in receipt of income support and carer’s allowance. However, when AD’s DLA award was about to end, and before the renewal application had been processed, TD’s income support was terminated because her carer’s allowance (linked to the DLA award) was due to end. TD made inquiries at the local jobcentre and was advised to claim UC once her income support ended which she did.
Subsequently, she put in a request for official error revision given that her income support should have continued on the basis that she was the carer of a person who had claimed DLA and a decision was still pending on that claim. DWP accepted that there had been an error but were only prepared to pay arrears between the date of the income support award ending and the UC award starting. Despite the successful revision, TD was receiving almost £140 per month less under UC than under legacy benefits because the additional amount received under UC for a disabled child is less than the equivalent addition under child tax credit other than for the most severely disabled children. [AD has since been successful in having her DLA award revised so that she is receiving the higher rate care component. This in turn means that TD is entitled to the higher rate disabled child addition in UC and, as this is paid at the same rate as the equivalent addition in child tax credits, she is no longer financially worse off. However, this does not detract from the fact that she had to manage on £140 per month less for more than 18 months due to the error by DWP in ending her income support].
The second case is brought on behalf of a single woman with rheumatoid arthritis and spondylitis severely affecting her mobility so that she needs crutches to move around. She was receiving personal independence payment ("PIP") and employment support allowance ("ESA") on account of her disabilities. However, despite a deterioration in her health, DWP decided that she no longer qualified for PIP and then stopped her ESA after she failed to attend a work capability assessment. With no other source of income, other than housing benefit to pay her rent, Ms Reynolds was left with no option but to claim UC. She subsequently went on to challenge both the termination of her PIP and her ESA but is prevented by the legislation from returning to legacy benefits and is left £183.48 per month worse off on UC due to the absence of the severe disability premium within UC.
The SSWP has since passed legislation preventing people like Ms Reynolds who are in receipt of the SDP from even being able to claim UC ahead of the managed migration process when they will also benefit from full transitional protection. The SSWP has also introduced draft legislation which will provide some compensation for those who have already moved onto UC and lost out on the SDP amount. That compensation, referred to as a transitional SDP amount, will fully compensate those less severely disabled and recognised as having limited capabilit for work. However, it will leave those more severely disabled and recognised as having limited capability for work related activity over £100 per month worse off under UC than if they had remained on legacy benefits.