[2025] UKUT 035 (AAC)

Although Mr Edwards submitted that JA was not a guide to the present case, I do not agree, although I accept that JA arose in a different factual context.

In JA the agreed facts were that

“6.

From 10 November 2016 until 10 June 2018 the Claimant was in receipt of income-related Employment and Support Allowance (“ESA”) with the Severe Disability Premium (“SDP”).

7.

On 11 June 2018 the Claimant made a claim for Universal Credit as a ‘natural migrator’. This was triggered by her moving home from one local authority to another.

8.

On 11 September 2019 the Secretary of State decided that the Claimant was entitled to Transitional SDP of £285 for each full assessment period between 11 June 2018 and 11 September 2019, and thereafter each month (pursuant to Schedule 2 to the 2014 Regulations, inserted by the Universal Credit (Managed Migration Pilot and Misc. Amendments) Regulations 2019 (the “Transitional Protection Regulations”).

9.

On 14 September 2020 the Claimant moved again, this time from mainstream accommodation into specified accommodation.

10.

On 18 September 2020 the Claimant notified the Department for Work and Pensions (“DWP”) of her move to specified accommodation, which amounted to a relevant change of circumstances.

11.

On 13 October 2020 (“Conversion Day”) the Secretary of State converted the Transitional SDP Amount to a transitional element which would be included within the Claimant’s monthly Universal Credit award, rather than paid as a standalone payment (the “Transitional Element”). The Transitional Element was £285 per month.

12.

On 18 May 2021 the Claimant moved out of her specified accommodation into mainstream rented accommodation, which represented another relevant change of circumstances. The Claimant notified the move to the DWP on 22 June 2021.

13.

On 11 July 2021 the Secretary of State decided that, as a result of the Claimant’s move, the Claimant was now entitled once again to a Housing Costs Element in her award of Universal Credit to cover her monthly rental and service charge. As a consequence, the Claimant’s award of the Transitional Element of Universal Credit was reduced to nil, in accordance with regulation 55 of the 2014 Regulations (the “SoS Decision”), because the additional amount awarded for the Housing Costs Element (£369.37) exceeded the amount of the Transitional Element (which was £285 per month).”

The Tribunal at first instance found (as set out in the Upper Tribunal decision at [17]) that

“21.

On the basis of the decision in TP and AR and the other authorities cited, the Tribunal accepted that the implementation arrangements for Universal Credit, including the availability (or not) of transitional protection, fell within the ambit of a convention right. Indeed, the respondent had not contested this point.

22.

The [Claimant’s] Representative submitted that she “has an ‘other status’ as someone with a transitional element based on her severe disability premium, included in her Universal Credit award calculation and who has moved from specified accommodation to mainstream rented accommodation”. The Tribunal agreed that this was the case.

23.

Furthermore, “[the] Claimant and person who has been treated differently are in analogous situations. [The Claimant] has been treated differently compared to someone (“person 1”), also receiving Universal Credit Transitional Severe Disability Premium, who moves from mainstream rented accommodation to another cheaper mainstream rented property. The Tribunal accepted this as fact.

24.

It was explained that “[The Claimant] has moved from a more expensive to less expensive rented property, and in doing so eroded her transitional element in its entirety. In contrast person 1 would, because they are moving between mainstream rented properties, experience no erosion of the same element. This difference in treatment occurs even though, like [the Claimant], person 1 is moving to accommodation which was cheaper than their previous accommodation. Therefore it is only because [the Claimant’s] housing costs were previously met via [H]ousing [B]enefit and are now met by Universal Credit that her transitional element has been eroded: this factor causes her Universal Credit maximum amount to increase despite the fact her overall amount of benefit entitlement has decreased (i.e. Housing Benefit plus Universal Credit before her move are less than Universal Credit including Housing Costs Element would be in new property).”

25.

“[The Claimant] has not moved to accommodation with rent which is either the same, or more expensive than, her previous property. However, it is instructive to compare the difference in treatment as compared to person 1 in these situations:

(a)

if [the Claimant] had moved to a mainstream property with rent at the same level her transitional element would erode by the full amount of the Universal Credit Housing Costs Element, in most cases eroding the transitional element entirely. If person 1 were to move to a property with the same rent they would not see any erosion in their transitional element.

(b)

If [the Claimant] were to move to a mainstream property with higher rent, then her transitional element would erode by the full amount of the Universal Credit Housing Costs Element, in most cases eroding the transitional element entirely. In contrast, if person 1 were to move to more expensive accommodation, then their transitional element would only erode by the difference between the Universal Credit Housing Costs Element for the old property and the Universal Credit Housing Costs Element for the new, more expensive, property.”

26.

On that basis it was argued that the Appellant has also been treated differently to someone (‘person 2’) receiving Universal Credit transitional element who moved from specified or temporary accommodation to another property which is also specified or temporary accommodation. Person 2’s transitional element would not be affected at all by moving to a new home – regardless of whether or not the rent was more or less than at the previous accommodation.

27.

The Tribunal acknowledged this analysis and found that that [sic] the [Claimant] had been treated differently and less favourably than the hypothetical comparators ‘person 1’ and ‘person 2’.

28.

The Representative addressed the question as to whether the difference in treatment could be objectively justified, stating that “[the Claimant] is unaware of any justification for the differential treatment, and the Secretary of State for Work and Pensions has not attempted to provide justification. Indeed, they state in their Mandatory Reconsideration decision (at page 71) “I must clarify that there is no dispute that the above sequence of events represents circumstances largely outside of your control”.

29.

They point out, it is “important to bear in mind that what has to be justified is not the underlying policy behind the erosion of the transitional element but rather the difference in treatment in [the Claimant’s] case (see TD and others v SSWP [2020] EWCA Civ 618 at [85]). The Tribunal concurred with this view.

30.

Finally, the [Claimant’s] Representative addressed the question of remedy, stating that the remedy is to disapply provisions to avoid a discriminatory outcome. Inter alia, it is stated, “In RR v SSWP [2019] UKSC 52 the Supreme Court held that a tribunal must, where it is possible to do so, disregard a provision of subordinate legislation which results in a breach of a right under the European Court [sic] of Human Rights.”

31.

The Tribunal agreed that the appropriate remedy was to disapply the legislation giving rise to the discriminatory outcome. As the Tribunal did not have sufficient information before it to calculate the appropriate award of Universal Credit it directed that the Secretary of State must calculate the [Claimant’s] Universal Credit award to include the Transitional Element as is [sic] it have [sic] not been eroded by the inclusion of the Housing Costs Element from 11/05/2021.

32.

The appeal was allowed. The decision of the Secretary of State was set aside.”

In his analysis, Upper Tribunal Judge Church cited the approach of Simler LJ in T as to the proper approach to an Article 14 argument and added

“63.

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.

64.

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.”

I do not need to set out his analysis of ambit at [69-70] and status at [71-90] since neither is in issue in this case. By contrast, as to comparators and differential treatment, he said that

“91.

The First-tier Tribunal decided that the Claimant:

“has been treated differently [as a person moving from specified accommodation to mainstream accommodation] compared to someone … who moves from mainstream rented accommodation to another cheaper mainstream rented property” (see [23] of the FtT statement of reasons).

92.

That is clearly the case, because the calculation that was made upon the relevant change of circumstances (the Claimant moving from specified to mainstream accommodation) took into account her new entitlement (i.e. to the Housing Costs Element of Universal Credit in the amount of £366.37 per month) but it ignored what she had lost in terms of her entitlement to Housing Benefit (in the amount of £613.12 per month). This resulted in the Claimant losing the entirety of her £285 per month Transitional Element of Universal Credit in one fell swoop. By contrast, the calculation for a claimant who moves from mainstream rented accommodation to another cheaper mainstream rented property would take into account both the gain and the loss experienced, so they would experience no erosion at all. For example, moving from a mainstream property with a monthly rent of £500 to another mainstream property with a rent of £400, they would be treated as having experienced no “relevant increase” because the gain of £400 per month was cancelled out by the loss of the £500 per month, and so any Transitional Element award would be unaffected. Similarly, claimants moving from one specified accommodation setting to another would be treated as experiencing “no relevant increase”, as would claimants moving from mainstream rental accommodation to specified accommodation. The only category treated as experiencing a “relevant increase” to the full extent of their award of Housing Costs Element is those moving from either specified or temporary accommodation into mainstream rental accommodation.

93.

The Secretary of State doesn’t accept the applicability of the “person 1” and “person 2” comparators identified by the First-tier Tribunal, pointing out that the essence of these comparators was that each had either always been in receipt of Housing Benefit or had never been in receipt of Housing Benefit. By contrast, the Claimant received the Housing Costs Element of Universal Credit upon migration, then had a period of receiving Housing Benefit when she moved into specified accommodation (upon which change of circumstances her entitlement to the Housing Costs Element ceased), and then received the Housing Costs Element again upon her second change of circumstances when she moved into mainstream rented accommodation, and ceased to be entitled to Housing Benefit.

94.

Mr Edwards proposed different comparators: someone who receives Housing Benefit because they are in specified accommodation on the one hand, and someone who does not receive Housing Benefit because they are in a different type of rented accommodation on the other.

95.

I find the Secretary of State’s position somewhat puzzling. While I agree that the difference in the respective positions of the First-tier Tribunal’s “person 1”, “person 2” and the Claimant are as he described (and as I have summarised above), I don’t see why this makes the First-tier Tribunal’s choice of comparators inapposite. Rather, it is this very difference that highlights the difficulty with which we are concerned. That is what makes the choice of comparators apposite.

96.

In Re McLaughlin [2018] UKSC 48, [2018] 1 WLR 4250 Baroness Hale explained:

“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 at issue] are also relevant to this question…”

97.

The factors that link this claim with the substantive ECHR article at issue are the same ones that Rose LJ identified in TP (CA), and quoted above:

“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 …”

98.

The Secretary of State argued that the Claimant’s comparators incurred “a different liability for paying rent attendant on the move between the accommodation”, but there is nothing inherent in the nature of a tenancy or license of “specified” accommodation that makes this so, and it is unclear why it would render their situation incomparable if it there was such a difference. The real difference seems to be that specified accommodation is funded through Housing Benefit administered by the local authority, while the Housing Costs Element of Universal Credit is funded centrally.

99.

The Secretary of State hasn’t persuaded me that the mere change from one category of accommodation to another inherently makes the situations of the Claimant and comparators 1 and 2 incomparable. This is the kind of “unduly technical” distinction that was rejected in TP (CA), and I reject it here. As Mr Royston observed, if every difference made situations incomparable there would be no comparators for anything.

100.

Mr Edwards encouraged me to assess the issues of comparators, differential treatment and justification against the backdrop of the rationale for Parliament’s policy decisions:

(1)

to erode the transitional protections provided to prevent sudden “cliff” losses to vulnerable claimants,

(2)

to carve Housing Benefit out of the Universal Credit scheme,

(3)

to keep specified accommodation within Housing Benefit so that its higher costs wouldn’t be caught by the ‘benefit cap’ calculation and because local authority social services teams were best placed to assess claimants’ needs, and

(4)

to disregard receipt of Housing Benefit for the purpose of calculating entitlement to Universal Credit.

101.

He warned me that these were “polycentric policy matters” that were properly for the legislature to decide, and were not amenable to be reconsidered by the courts or tribunals. He reminded me that when Parliament makes changes to the law ‘bright line’ rules will often be introduced in the interests of predictability and legal certainty, citing Lord Bingham’s words in R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15 at [33]:

“… legislation cannot be framed so as to address particular cases. It must lay down general rules … A general rule means that a line must be drawn, and it is for Parliament to decide where. The drawing of a line inevitably means that hard cases will arise falling on the wrong side of it, but that should not be held to invalidate the rule if, judged in the round, it is beneficial.”

102.

He also referred me to the dissenting judgment of Lords Reed and Sumption JJSC in R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57 at [93], urging restraint in interfering with the choices made by those who are democratically accountable.

103.

I accept that it is well-established that Parliament has a wide discretion in deciding where to draw such lines, and I must accept that it is all the more so where the legislation in question takes the form of transitional regulations.

104.

I note, however, that the provisions with which we are concerned are comprised in a statutory instrument introduced by way of “negative procedure”. If primary legislation which has been debated in Parliament and voted upon is at the top end of the scale in terms of the restraint required, legislation such as this must be at the bottom end of the scale, and so a lesser degree of restraint is appropriate.

105.

The Secretary of State maintained that the Claimant did not experience any relevant difference in treatment compared with person 1 and person 2 that might engage Article 14, because regulation 55 of the 2014 Regulations applies equally to all these cases, just with different results.

106.

However, there is a very important difference in the way that erosion applies to the Claimant and anyone sharing her status on the one hand, and those who do not share that status on the other. Where Universal Credit claimants who do not share the Claimant’s status experience erosion of their transitional protection it is because the benefit they receive has gone up (whether by way of annual uprating, an increase in their housing costs, or a new or increased entitlement to some other element). Despite experiencing erosion, they receive no less benefit. Rather they experience less of an increase in benefit than they would have done without erosion. This is the way that erosion is supposed to work. There is a clue in the heading to regulation 55 of the Transitional Regulations (as amended): “The transitional element – initial amount and adjustment where other elements increase” (my emphasis).

107.

In the case of the Claimant and those sharing her status, however, the erosion occurs despite there being no increase in their benefit entitlement at all. Indeed, in the Claimant’s case there was a significant reduction in her benefit in respect of rent and service charge of £246.75 due to her moving out of specialist accommodation into much cheaper mainstream accommodation.

108.

Mr Edwards characterised the Claimant’s case as an attack on the erosion principle. That is certainly not how Mr Royston presented it. Indeed, he said that to the contrary the Claimant accepts the principle of erosion. He says that erosion should apply to the Claimant and those of her status, just as it does to other claimants, but he maintains that the Claimant’s loss of her Transitional Element is not properly characterised as ‘erosion’. I agree.

109.

The loss of transitional protection experienced by the Claimant on moving from specified accommodation (or temporary accommodation as defined in paragraph 3B of Schedule 1 to the 2013 Regulations) to mainstream accommodation is not incremental and gradual, but sudden and total. The regulations apply to expose the Claimant and her cohort of vulnerable people with disabilities to precisely the “cliff-edge” income loss that the High Court found to be unlawful in TP1, and which the Transitional Protection Regulations were introduced to remedy. Further, the elimination of the transitional protection occurs in circumstances where there is no increase in the Claimant’s benefit, so it is inconsistent with the “erosion principle”. It is, in Mr Royston’s words, a “cuckoo in the nest”.

110.

I am satisfied that the treatment complained of amounts to discrimination on the basis of the Claimant’s “other status” ...”

Turning to justification, Judge Church found that

“111.

The fourth ground of appeal asserts that the First-tier Tribunal erred in law in its approach to considering, “or failing to consider”, that any discrimination contrary to the Claimant’s Convention rights arising from the Secretary of State’s decision and/or regulation 55 of the 2014 Regulations, was objectively justified.

112.

Taking the “failing to consider” reference first, it is clear from what the First-tier judge said in his statement of reasons that he did consider the issue:

“28.

The Representative addressed the question as to whether the difference in treatment could be objectively justified, stating that, “[the Claimant] is unaware of any justification for the differential treatment and the Secretary of State for Work and Pensions has not attempted to provide justification. Indeed, they state in their Mandatory Reconsideration decision (at page 71) “I must clarify that there is no dispute that the above sequence of events represents circumstances largely outside of your control.”

113.

This explanation is admittedly brief, but it must be read in context. I note that the First-tier Tribunal judge made case management directions inviting the parties to make sequential submissions and listed the appeal for an oral hearing. The Secretary of State declined to make further submissions and seemingly chose not to be represented at the oral hearing (which was listed as a telephone hearing). It was for the Secretary of State to demonstrate justification, not for the Claimant to show that there was none. In the absence of submissions or evidence on justification there perhaps wasn’t much more to be said by the judge.

114.

In the proceedings before the Upper Tribunal there was an oral hearing, and both parties were represented. By way of justification, Mr Edwards cited Parliament’s clear decision to reform the benefits system, and to do so in a way which did not replicate all that had gone before. It decided not to replicate certain of the premiums included in the legacy benefits except to the extent of transitional protections, and it decided that those protections would erode over time with increases in benefits.

115.

This is just where Parliament chose to draw the line, Mr Edwards explained. That decision was not manifestly without foundation, and so it should be respected. To the extent that there was less favourable treatment on a discriminatory basis it was justified because Parliament was entitled to reform benefits and there was no right to benefits staying the same.

116.

However, what must be justified is “the difference in treatment; it is not enough to show that the underlying policy is justified” (see TD and others v SSWP [2020] EWCA Civ 618 at [57] per Singh LJ).

117.

The Secretary of State offered no evidence to show that the potentially discriminatory effect on the Claimant and those sharing her status was considered before the relevant legislation was made law, or that any thought was given to how this effect could be mitigated.

118.

The Secretary of State has not explained why, to achieve the legitimate aims identified by Mr Edwards, it is necessary that those in the Claimant’s position should not be afforded the same protection from cliff-edge loss that the High Court held to be necessary in TP1 to protect those who experience such a loss as a result of a move from one local authority to another triggering a transition from a legacy benefit into Universal Credit.

119.

The administration of social security benefits is a very complicated business, and this is relevant to an assessment of the proportionality of measures which have a discriminatory effect. However, no evidence was adduced to demonstrate that it would be administratively complicated, burdensome or costly to identify those who share the Claimant’s status and to treat them in a way which does not subject them to a cliff-edge income loss, for instance by applying erosion only in circumstances where the claimant enjoys an increase in benefit payments.

120.

Mr Edwards maintained that the proper standard of review was “manifestly without reasonable foundation”. Mr Royston said that, given the absence of any evidence that the question of the impact on those sharing the Claimant’s status was even considered, there should be a somewhat more exacting standard.

121.

In the circumstances, it doesn’t matter which standard I apply. I acknowledge the wide margin of appreciation given to legislative or executive judgments on matters of social and economic policy, such as the administration of social security benefits (see Lord Sales JSC in R (Z) v Hackney LBC [2020] UKSC 40 at [107]-[110]). However, I remain unpersuaded that the less favourable treatment accorded to the Claimant and those of her status was a proportionate means of achieving a legitimate aim (even on a “manifestly without reasonable foundation” basis). It is not sufficient that there was a reasonable foundation to the erosion principle itself.

122.

Further, I consider that such treatment ran counter to the policy objective behind the Transitional Regulations (as amended by the Transitional Protection Regulations). Their purpose was to provide for transitional protection to natural migrators who had been in receipt of SDP or EDP prior to transitioning to Universal Credit, and eroding that protection as the claimant experiences increases in their benefits. Far from furthering that policy objective, the policy objective is positively frustrated by the way that regulation 55 eliminates the Claimant’s entitlement to the Transitional Element in its entirety in circumstances which the Secretary of State concedes are largely beyond her control, and where she experiences no increase in the benefits she receives.

123.

In TP1 Lewis J concluded:

“88 … the material before the court does not establish that the Transitional Regulations as they stand strike a fair balance between the interests of the individual and the interests of the community in bringing about a phased transition to [U]niversal [C]redit…”

124.

The same applies in this case to the Transitional Regulations as amended. For all of these reasons, Ground 4 also fails.”

Finally, when considering the question of remedy, Judge Church stated that

“125.

Judge Johnson’s decision that the application of Schedule 2 and regulation 55 of the Transitional Regulations (as amended) in the way that the Secretary of State applied it resulted in unlawful discrimination against the Claimant in breach of section 6 of the HRA 1998 and Article 14 of the Convention involved no material error of law.

...

127.

Having found a breach of the Claimant’s Convention rights Judge Johnson decided that the appropriate remedy was to disapply the offending provision of secondary legislation and to set the SoS Decision aside on the basis that the Claimant’s Universal Credit award should be recalculated to include the Transitional Element as if it had not been reduced to nil by the award of the Housing Costs Element from 11 May 2021.

128.

In his skeleton argument Mr Edwards argued that the First-tier Tribunal’s remedy was inappropriate. He argued that it was not possible simply to disregard the offending provision because it is central to the statutory scheme, and it isn’t clear how the statutory scheme can be applied without it.

129.

Remedy was not challenged by the Secretary of State in his amended grounds of appeal, and Mr Royston argued that it was an abuse of process for it to be pursued. In any event I am not at all persuaded by the Secretary of State’s case on this point. It is predicated on his case that the appeal is an attack both on the erosion principle and on the transitional relief provided by the Transitional Protection Regulations remaining transitional in nature. It is neither. Disapplying the provisions to the extent that they discriminate unlawfully against the Claimant and those sharing her status does not require a wholesale unpicking of the Universal Credit scheme. Erosion can still occur, and the transitional protections can be eroded to nothing as claimants enjoy increases in their benefit. What cannot occur is the unfair stripping away of all transitional protection in one fell swoop when a claimant’s circumstances change such that they need to move between specified accommodation which is funded via Housing Benefit and non-specified accommodation which attracts the Housing Costs Element of Universal Credit.

130.

The judge’s decision on disposal was consistent with the Supreme Court’s decision in RR v SSWP [2019] UKSC 52, which was binding upon him. He was entitled to dispose of the appeal in the way that he did.”

Mr Edwards submitted that the case of JA was distinguishable in that it concerned the interaction of housing benefit with UC and that housing benefit was extraneous to the UC scheme, as opposed to this case which concerned the interaction of 2 different elements of UC, the carer element and the LCWRA element (both of which concerned absence from the labour market, but for different reasons). However, I agree with Ms Smyth’s submission that, although arising in a different factual context, JA (which I have deliberately cited at some length) is very close on point to this case. (Significantly, JA has not been the subject of an appeal by the Secretary of State.) Both cases concern the potentially discriminatory effect of regulation 55 of the 2014 Regulations; both concern the cliff-edge erosion at a stroke of the TE of UC to nil; both involve the argument that the hypothetical comparators are not analogous to the claimant’s circumstances; both involve the argument that regulation 55 applies equally to all claimants so that there is no differential treatment.

There is, on the contrary, an all too obvious parallel between the position of the claimant in JA and the position of MJ as claimant in this case:

“106.

However, there is a very important difference in the way that erosion applies to the Claimant and anyone sharing her status on the one hand, and those who do not share that status on the other. Where Universal Credit claimants who do not share the Claimant’s status experience erosion of their transitional protection it is because the benefit they receive has gone up (whether by way of annual uprating, an increase in their housing costs, or a new or increased entitlement to some other element). Despite experiencing erosion, they receive no less benefit. Rather they experience less of an increase in benefit than they would have done without erosion. This is the way that erosion is supposed to work. There is a clue in the heading to regulation 55 of the Transitional Regulations (as amended): “The transitional element – initial amount and adjustment where other elements increase” (my emphasis).

107.

In the case of the Claimant and those sharing her status, however, the erosion occurs despite there being no increase in their benefit entitlement at all. Indeed, in the Claimant’s case there was a significant reduction in her benefit in respect of rent and service charge of £246.75 due to her moving out of specialist accommodation into much cheaper mainstream accommodation.

108.

Mr Edwards characterised the Claimant’s case as an attack on the erosion principle. That is certainly not how Mr Royston presented it. Indeed, he said that to the contrary the Claimant accepts the principle of erosion. He says that erosion should apply to the Claimant and those of her status, just as it does to other claimants, but he maintains that the Claimant’s loss of her Transitional Element is not properly characterised as ‘erosion’. I agree.

109.

The loss of transitional protection experienced by the Claimant on moving from specified accommodation (or temporary accommodation as defined in paragraph 3B of Schedule 1 to the 2013 Regulations) to mainstream accommodation is not incremental and gradual, but sudden and total. The regulations apply to expose the Claimant and her cohort of vulnerable people with disabilities to precisely the “cliff-edge” income loss that the High Court found to be unlawful in TP1, and which the Transitional Protection Regulations were introduced to remedy. Further, the elimination of the transitional protection occurs in circumstances where there is no increase in the Claimant’s benefit, so it is inconsistent with the “erosion principle”. It is, in Mr Royston’s words, a “cuckoo in the nest”.”

Just as in JA, so in this case there is another obvious parallel in the Secretary of State’s approach to the issue of justification:

“116.

However, what must be justified is “the difference in treatment; it is not enough to show that the underlying policy is justified” (see TD and others v SSWP [2020] EWCA Civ 618 at [57] per Singh LJ).

117.

The Secretary of State offered no evidence to show that the potentially discriminatory effect on the Claimant and those sharing her status was considered before the relevant legislation was made law, or that any thought was given to how this effect could be mitigated.

118.

The Secretary of State has not explained why, to achieve the legitimate aims identified by Mr Edwards, it is necessary that those in the Claimant’s position should not be afforded the same protection from cliff-edge loss that the High Court held to be necessary in TP1 to protect those who experience such a loss as a result of a move from one local authority to another triggering a transition from a legacy benefit into Universal Credit.

119.

The administration of social security benefits is a very complicated business, and this is relevant to an assessment of the proportionality of measures which have a discriminatory effect. However, no evidence was adduced to demonstrate that it would be administratively complicated, burdensome or costly to identify those who share the Claimant’s status and to treat them in a way which does not subject them to a cliff-edge income loss, for instance by applying erosion only in circumstances where the claimant enjoys an increase in benefit payments.

120.

Mr Edwards maintained that the proper standard of review was “manifestly without reasonable foundation”. Mr Royston said that, given the absence of any evidence that the question of the impact on those sharing the Claimant’s status was even considered, there should be a somewhat more exacting standard.

121.

In the circumstances, it doesn’t matter which standard I apply. I acknowledge the wide margin of appreciation given to legislative or executive judgments on matters of social and economic policy, such as the administration of social security benefits (see Lord Sales JSC in R (Z) v Hackney LBC [2020] UKSC 40 at [107]-[110]). However, I remain unpersuaded that the less favourable treatment accorded to the Claimant and those of her status was a proportionate means of achieving a legitimate aim (even on a “manifestly without reasonable foundation” basis). It is not sufficient that there was a reasonable foundation to the erosion principle itself.

122.

Further, I consider that such treatment ran counter to the policy objective behind the Transitional Regulations (as amended by the Transitional Protection Regulations). Their purpose was to provide for transitional protection to natural migrators who had been in receipt of SDP or EDP prior to transitioning to Universal Credit, and eroding that protection as the claimant experiences increases in their benefits. Far from furthering that policy objective, the policy objective is positively frustrated by the way that regulation 55 eliminates the Claimant’s entitlement to the Transitional Element in its entirety in circumstances which the Secretary of State concedes are largely beyond her control, and where she experiences no increase in the benefits she receives.

123.

In TP1 Lewis J concluded:

“88 … the material before the court does not establish that the Transitional Regulations as they stand strike a fair balance between the interests of the individual and the interests of the community in bringing about a phased transition to [U]niversal [C]redit…”

124.

The same applies in this case to the Transitional Regulations as amended. For all of these reasons, Ground 4 also fails.”

In particular, the Secretary of State offered no evidence to show that the potentially discriminatory effect on MJ and those sharing her status was considered before the relevant legislation was enacted or that any thought was given to how that effect could be mitigated. Nor has it been explained why, to achieve the aims identified by Mr Edwards, it is necessary that those in MJ’s position should not be afforded the same protection from cliff-edge loss which the High Court held to be necessary in TP1 to protect those who experience such a loss as a result of a move from one local authority to another triggering a transition from a legacy benefit into Universal Credit. Nor was any evidence was adduced to demonstrate that it would be administratively complicated, burdensome or costly to identify those who share MJ’s status and to treat them in a way which does not subject them to a cliff-edge income loss, for instance by applying erosion only in circumstances or to a limited extent.