[2025] UKUT 035 (AAC)

The Secretary of State has, yet again in the context of transitionally protected claimants, completely failed to address, still less justify, the differential treatment of which complaint is made. Instead, her submissions are largely dedicated to defending an irrelevant issue, namely why a person cannot receive the carer element and the LCWRA element at the same time. But that is not MJ’s complaint. Her complaint is that she is treated less favourably than other transitionally protected claimants, who are not subject to a reduction in benefit entitlement by virtue of a change in their circumstances which increases their needs.

It is self-evidently not a good defence to this complaint to say that it arises because it is the consequence of the way the rules operate in MJ’s case. That does not address the reasons why it is justified for the rules to operate in that way.

On the face of it, reducing a claimant’s UC award, when his or her needs are recognised by the Secretary of State to have increased, is perverse. Plainly, it is a matter which requires the most cogent explanation, particularly as: (a) others in an identical situation suffer no loss of benefit; and (b) the Secretary of State has herself recognised, through legislative changes, that others in an analogous position should not suffer a decrease in benefit when they are assessed as having LCWRA. The Secretary of State has not just provided no evidence which is capable of justifying this differential treatment of transitionally protected claimants; she has, as already set out, not even attempted to explain it.

That the Secretary of State should have failed to offer any justification is scarcely surprising, since this situation is manifestly not justifiable. It has the effect that MJ is not just subject to a cliff-edge, through a very substantial loss of benefit (the very thing which transitional protection sought to avoid), but is subject to that cliff-edge when her needs have increased, because she has been assessed as having LCWRA.

CPAG is aware of other cases where individuals, who are carers, have subsequently developed LCWRA and have lost their transitional protection, meaning that they are substantially worse off despite their needs having increased. CPAG is also aware of a situation where an individual (who is a carer) has suffered a deterioration in his or her health, but has asked the Department of Work and Pensions not to conduct a work capability assessment so that they do not end up with a decrease in their award. (I should add that, unusually, the hearing before me was attended remotely by welfare rights representatives from more than one organisation, suggesting that the issue does have significantly wider impact than usual.)

MJ specifically relies on the recent decision of the Upper Tribunal in JA. Although the facts were different, exactly the same reasoning applies here.

The Secretary of State refers to the unreported decision of this Tribunal in JNW (UA-2023-00748-USTA), although rightly she does not suggest that the decision in that case is capable of being read across to the current situation. That case concerned a claimant who had never been transitionally protected, and was effectively a claim that transitional protection should have been broader. The issue here is completely different.