[2025] UKUT 035 (AAC)

In considering the question of comparators, I bear in mind that the exercise of identifying comparators in analogous situations in the context of a discrimination claim is a way of assessing whether like cases have been treated differently for some unjustified status-based reason, such that the state has failed to “secure” equal enjoyment of underlying Convention rights on grounds of status. The question of whether situations are relevantly comparable so as to require the same treatment (or the converse of that) cannot be neatly separated from the question of whether differences in treatment, or treating those whose situations are relevantly different the same, are justified (and see JA at [63-64] cited below).

I also bear in mind what Upper Tribunal Judge Church said in JA to the effect that

“65.

Mr Royston cited R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37, [2006] 1 AC 173, in which Lord Nicholls of Birkenhead said (at [3]) that he favoured an approach to discrimination cases of keeping the formulation of the issues as simple and non-technical as possible, and that while in some cases there may be

“such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous, where the position is not so clear, a different approach is called for. Then the court's scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact.”

66.

This overlap between the exercises of assessing whether cases are in a “similar situation” and whether the difference in treatment is justified was also noted by Baroness Hale in AL (Serbia) v Secretary of State for the Home Department [2008] UKHL 42, [2008] 1 WLR 1434 at [24] that:

“…the classic Strasbourg statements of the law do not place any emphasis on the identification of an exact comparator. They ask whether "differences in otherwise similar situations justify a different treatment."

67.

Mr Edwards referred me to R (T) v Secretary of State for Work and Pensions [2022] EWHC 351 (Admin), in which Swift J reviewed the authorities and concluded that a holistic approach was called for:

“As is obvious from the authorities, any discrimination claim can contain a range of what can be described as moving parts – for example the closeness of the analogy that exists, the extent of the difference in treatment, and so on. In many instances, discrimination claims are better decided considering all these matters as part of a single exercise that includes justification, rather than taking each in turn as one of a series of discrete preconditions standing in the way of the need for any justification. In most instances the issue will not simply be whether some distinction can be drawn between the claimant and his comparator, but whether any distinction is a relevant distinction. This can require consideration of all evidence, including what is said by way of justification.”

68.

Both parties agreed that it was appropriate for me to take such a “holistic” approach, which is what I have decided to do.”

Moreover, in Re McLaughlin [2018] UKSC 48, [2018] 1 WLR 4250 Baroness Hale explained at [26]:

“It is always necessary to look at the question of comparability in the context of the measure in question and its purpose, in order to ask whether there is such an obvious difference between the two persons that they are not in an analogous situation. The factors linking the claim to [the substantive article in issue] are also relevant to this question.”

Mr Edwards submitted that MJ was a carer and in receipt of the carer element of UC, unlike the two proffered comparators relied on by the claimant, and that that difference was fatal to those two comparators. I accept that that is a difference between the claimant and the comparators, but when one looks at the question of comparability in the context of the measure in question and its purpose, namely to ask whether there is such an obvious difference between the two persons that they are not in an analogous situation, the difference is not as obvious as Mr Edwards suggests; rather there is all too plainly an analogy to be drawn between the claimant and the comparators.

In my judgment, Ms Smyth is right when she says that the comparators described above are plainly in an analogous situation to MJ. All are persons who were recognised as severely disabled through an award of the SDP and are persons whom the Secretary of State accepted as a matter of policy ought to be awarded transitional protection to protect them from a cliff-edge. The analogy is therefore closer to their actual situation than the difference identified by Mr Edwards, albeit that the situations are not on all fours, but that is inevitably the case where one is seeking to draw an analogy.

In the case of comparator 1, a person who is not already a carer, but has an award superseded to receive the LCWRA element, the cliff-edge is avoided by virtue of the fact that bespoke protection is now available (as from 25 July 2022), in regulation 55(5) of the 2014 Regulations, for a person who moves from having LCW to LCWRA, so that the transitional protection is not wiped out at a stroke. The subsection provides that

“In cases where the LCW element is replaced by the LCWRA element, the “relevant increase” is to be treated as the difference between the amounts of those elements”.

(Ms Smyth did not suggest that this provision was in force at the date of the decision under appeal, but she relied on it in relation to the question of justification, with which I deal below.)

Comparator 2 is a person who is receiving the TE and the LCWRA (prior to the conversion date), who subsequently becomes a carer. Significantly, she does not see any reduction in her UC award (and her TE remains intact) as a result of the combination of being a carer and having LCWRA.

Contrary to the submission of the Secretary of State, I see nothing vague about that comparator. The situations of MJ and comparator 2 are indeed more or less exactly the same. The only difference is that one became a carer before she was assessed as having LCWRA and the other became a carer after having LCWRA, but their situations are not materially or relevantly different for that reason. As Ms Smyth rightly submitted, on the contrary, it shows the patently unjustifiable differential treatment to which MJ is subjected.

Ms Smyth produced three discrete situations, in none of which did the claimant end up worse off (as MJ did in her situation). In the first place, comparator 1, was someone who, unlike MJ, was not carer but then received LCWRA. The table captures the difference in treatment (housing costs are excluded, but that makes no difference for present purposes):

The second situation was comparator 2, to which I have referred above. The net effect was that in that case there was no change in the award; the claimant, unlike MJ, did not end up with less than she had.

The third was the current position with regard to comparator 1 in the light of regulation 55 (see paragraph 92 above) where the “relevant increase” is to be treated as the difference between the amounts of the LCW and the LCWRA elements. Why, asked Ms Smyth, was MJ alone in suffering a loss of benefit when no one else did? The Secretary of State did not suggest who else would suffer such a loss. Indeed the reality is that no other group so suffers in the way that MJ does. It is not an adequate answer to say, as the Secretary of State does, that MJ’s higher level of needs is reflected in a higher award of LCWRA if the net effect of the legislation is to reduce her benefit overall when her needs actually increase. That is not the practical reality enjoined by the Court of Appeal in TD at [69]. It is not mixing and matching elements of UC to achieve a more favourable outcome. It is, by contrast, avoiding hardship by falling off a cliff-edge when there is no relevant difference between someone in MJ’s position and someone in an analogous position.

In this case the reality is that the factors which link the claim with the substantive Article at issue are essentially the same ones which Rose LJ identified in TP (CA) (with emphasis added):

“211 … the ‘very purpose’ of A1P1 combined with Article 14 is to prevent people being arbitrarily deprived of their possessions … in a way which discriminates against them. The effect of the substantial drop in income on these severely disabled benefits recipients is particularly harsh because of their particular needs and vulnerabilities …”

I am therefore satisfied that the position of the claimant and comparators 1 and 2 are analogous and are not incomparable. On the contrary, to accept the submissions of the Secretary of State on the point would be to accept precisely the sort of “unduly technical” distinction which was rejected in TP (CA) and which I reject here. As has been observed in a similar context, if every difference made situations incomparable there would be no comparators for anything.

I am reinforced in that conclusion by what Swift J said in TP2 to the effect that a discrimination claim can contain a range of what can be described as moving parts, e.g. for example the closeness of the analogy, the extent of the difference in treatment, and so on. In many instances, discrimination claims are better decided considering all these matters as part of a single exercise which includes justification, rather than taking each in turn as one of a series of discrete preconditions standing in the way of the need for any justification. When one considers the matter as a whole, including the issue of justification (with which I deal separately below), the answer becomes all the clearer.