[2025] UKUT 035 (AAC)

For ease of reference I again set out the material provisions of regulation 55 as they existed at the date of the decision under appeal:

“(1)

The initial amount of the transitional element is—

(a)

if the indicative UC amount is greater than nil, the amount by which the total legacy amount exceeds the indicative UC amount; or

(b)

if the indicative UC amount is nil, the total legacy amount plus any amount by which the income which fell to be deducted in accordance with section 8(3) of the Act exceeded the maximum amount.

(2)

The amount of the transitional element to be included in the calculation of an award is—

(a)

for the first assessment period, the initial amount;

(b)

for the second assessment period, the initial amount reduced by the sum of any relevant increases in that assessment period;

(c)

for the third and each subsequent assessment period, the amount that was included for the previous assessment period reduced by the sum of any relevant increases (as in sub-paragraph (b)).

(3)

If the amount of the transitional element is reduced to nil in any assessment period, a transitional element is not to apply in the calculation of the award for any subsequent assessment period.

(4)

A “relevant increase” is … an increase in any of the amounts that are included in the maximum amount under sections 9 to 12 of the Act (including any of those amounts that is included for the first time) ...”

As to remedy, the Tribunal can either interpret the secondary legislation so as to achieve a Convention-compliant result, pursuant to s.3 of the HRA or disapply an offending provision of secondary legislation: see RR above.

As to the former, I accept Ms Smyth’s contention that the Tribunal can give effect to MJ’s Convention rights by reading “the sum of any relevant increases” in regulation 55(2)(c), read with regulation 55(4), as meaning the actual increase in award attributable to elements included in the award under ss.9 to 12 (here, the difference between the LCWRA element and the carer’s element, which is £179.90). This results in MJ’s transitional protection eroding to £95.10, rather than being wiped out altogether. The word “sum” (as in the “sum of any relevant increases” in regulation 55(2)(c)) indicates that a sum should be done (i.e. calculating what the increase actually is, rather than simply looking at the quantum of the LCWRA element), which is precisely what that interpretation does.

The alternative solution, again applying RR, is to disapply the offending provision.

The relevant provision here is regulation 55(4). Regulation 55(4) provides that

It can easily be “blue-pencilled” so that it reads:

I can see no objection to that blue pencil exercise, which can easily be essayed without disturbing or altering the rest of the provision.

I accept that here may be cases where it is not possible to disregard a provision in subordinate legislation because it is not clear how the statutory scheme can be applied without the offending provision, but this is not such a case.

The Secretary of State’s case is largely predicated on the fact that 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. MJ’s case is not an assault on the erosion principle (the existence of which she accepts) or on the fact that transitional relief provided by the 2014 Regulations is transitional in nature.

Disapplying the provisions or Regulation 55(2)(c) and 55(4) to the extent that they discriminate unlawfully against the claimant and those sharing her status does not require a wholesale unpicking of the UC 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 and making her worse off when a claimant’s circumstances change such that her needs increase.