[2025] UKUT 035 (AAC)

In R (SC) v Secretary of State for Work and Pensions [2022] AC 223 at [37], Lord Reed set out the general approach to be adopted:

“(1)

The court has established in its case law that only differences in treatment based on an identifiable characteristic, or ‘status’, are capable of amounting to discrimination within the meaning of article 14.

(2)

Moreover, in order for an issue to arise under article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations.

(3)

Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.

(4)

The contracting state enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and the background.””

In R (TD & ors) v Secretary of State for Work and Pensions [2020] EWCA Civ 618 at [69] the Court of Appeal emphasised the need for social security legislation, in the context of Article 14 claims, to be “interpreted in a way which conforms to practical reality, given the potential impact on some of the poorest people in society.” The Secretary of State needs to justify differential treatment, rather than policy generally.

It is crucial to recall that what needs to be justified by the Secretary of State in any Article 14 claim is the relevant difference in treatment, or the failure to treat different cases differently.

This principle is not only well established in general, but has repeatedly been stated by the Courts in the specific context of claims concerning transitional relief for loss of the SDP premium. The Secretary of State could not possibly be in any doubt about this: she has now failed successfully to defend a number of Article 14 claims for precisely this reason.

Thus, for example, in R (TP) v Secretary of State for Work and Pensions [2019] EWHC 1116 (Admin), [2019] PTSR 2123 (“TP2”), upheld on appeal, Swift J said this:

“49.

… This claim is not directed to the difference in the level of benefits paid to severely disabled persons under the legacy benefits system and under the universal credit system. Nor is the claim directed to any general proposition that article 14 requires transitional provision to be paid at any specific level. The claim does concern the arrangements for transitional provision, but it is directed only to one narrow matter - the justification of the difference in treatment between the members of two groups, the SDP natural migrant group and the regulation 4A group, respectively. The members of each of these groups met, and had legacy benefits remained in place would have continued to meet, the eligibility requirements for SDP. In this context, the argument that article 14 does not per se generate the need for specific transitional provision loses its force, because the present case is one where the Secretary of State has decided to make transitional provision but has chosen to do so in different ways for the different groups.

…

51 … the no turning back principle does not itself explain or provide a reason for the distinction between the transitional arrangements applied to the SDP natural migrant group and those that apply to the regulation 4A group. The reason why this is so is underlined by the nature of the trigger events that caused natural migration of SDP claimants (prior to the application of regulation 4A). As demonstrated by the circumstances of TP and AR, the trigger events are not aligned to any material change of circumstances relevant to the needs of SDP claimants. Thus, natural migration is not any indication either that the circumstances of the members of the SDP natural migrant group are likely to be any different from those who are members of the regulation 4A group, or that there is any particular reason to treat the members of the two groups differently.

…

60.

… No sufficient explanation for the difference in treatment has been provided. The Secretary of State’s “bright line”/administrative efficiency submission explains the treatment of the SDP natural migrant group on its own terms, but does not explain why that group is treated differently to the regulation 4A group ...”

In the earlier case of TP1, also upheld on appeal, Lewis J rejected the Secretary of State’s justification argument, because she had failed to provide any evidence explaining the reason for the difference in treatment in that case: see especially [82]-[88].

The need for evidence explaining the reason for the difference in treatment between two comparator groups was also emphasised by the Court of Appeal on appeal in the above cases (“TP (CA)”). For example, the Court (per Sir Terence Etherton MR and Singh LJ) said this, at [37], [127], [158] and [162]:

“37.

In the light of the issues that arise on the appeal in TP (No 1), what is significant about the evidence of Ms Young in those proceedings is not so much what she says but what she does not say. As will become apparent, Lewis J considered that it was of crucial importance that there was no evidence placed before the High Court to explain what the objective justification was for the difference in treatment as between the affected group of which TP and AR were members (people with severe disability who moved from one local authority to another) and those who moved but remained within the same local authority area.

...

127.

The fundamental difficulty that the Secretary of State faces is that there was no evidence placed before Lewis J on her behalf to explain the difference in treatment between the comparator groups. On the evidence that was placed before him, there appeared to have been no consideration of this issue … The reality was that the Secretary of State had simply not placed evidence before Lewis J which would assist him in deciding that there was a reasonable foundation for the difference in treatment.

...

158.

At para 45 of his judgment Swift J rightly observed that, in an article 14 case: “What must be justified is the difference in treatment.” There is the highest authority for that proposition in A v Secretary of State for the Home Department [2005] 2 AC 68, para 68 (Lord Bingham of Cornhill):

“Any discriminatory measure inevitably affects a smaller rather than a larger group, but cannot be justified on the ground that more people would be adversely affected if the measure were applied generally. What has to be justified is not the measure in issue but the difference in treatment between one person or group and another.” (Emphasis in original)

162.

At para 49, on a point which is also relevant to the third ground of appeal, Swift J said:

“This claim is not directed to the difference in the level of benefits paid to severely disabled persons under the legacy benefits system and under the universal credit system.”

As Swift J observed in the same paragraph, this was a situation in which the Secretary of State had already decided to make some transitional provision but had then chosen to do so in different ways for the different groups. It was that difference of treatment which needed to be justified.”

The Court of Appeal reiterated this point in TD: see [85].

The principle that what needs to be justified is the difference in treatment was emphasised again, in the context of transitional SDP protection, by: