Universal Credit, disability and transitional protection
R (TD, AD and IM) v SSWP CO/590/2018
This case is continuing 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.
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.
(ii) the policy is discriminatory 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 case is brought on behalf of two claimant households. IM is a single adult who, on account of his disability, was in receipt of employment support allowance (“ESA”). His ESA was terminated in March 2017 after he failed a work capability assessment. When he went to his local jobcentre, he was advised to claim UC which he did. He subsequently was successful in his appeal against the ESA decision. Nevertheless, while he was awarded a backdated amount for the limited capability for work related activity element under UC, he is worse off under UC than under ESA by almost £180 per month because the severe disability premium is not carried across to UC. Despite the successful appeal, he is not able to return to ESA nor is his UC award topped up to the level it would have been under ESA.
TD and AD are mother and daughter. TD, a single parent, gave up her work as a laboratory chemist to care full time for AD. AD currently receives DLA at the middle rate care component and lower rate mobility component. TD was 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 was due to end. AD made inquiries at the local jobcentre and was advised to claim UC 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 received 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.