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Section 1
The decision of the First-tier Tribunal sitting at Ashford dated 19 April 2024 under file reference SC302/22/00270 involves an error on a point of law. The appeal against that decision is allowed and the decision of the Tribunal is set aside.
The decision is remade, although it is to the same effect as the original decision, but on a correct basis in law.
The decision is that the erosion of the full amount of MJ’s transitional severe disability premium element (“TSDPE”) is discriminatory and contravenes her Convention rights. The decision is that the erosion of the full amount of MJ’s TSDPE is discriminatory and contravenes her Convention rights. Regulation 55(2)(c) and Regulation 55(4) of the 2014 Regulations must be interpreted and/or disapplied to avoid the discriminatory outcome. MJ’s TSDPE is to be eroded by the difference between the carer’s element of UC and the LCWRA element of UC from the assessment period from 10 October 2021 to 9 November 2021 and for each subsequent assessment period.
This decision is made under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.
REASONS
Introduction
In this case the Appellant, the Secretary of State for Work and Pensions (“the Secretary of State”), appeals to the Upper Tribunal from the decision of the First-tier Tribunal (“the Tribunal”) dated 19 April 2023 by which it allowed the Respondent’s (“MJ’s”) appeal against a decision of the Secretary of State dated 10 November 2021. On that date the Secretary of State decided to erode MJ’s transitional severe disability premium element (“TSDPE”) of Universal Credit (“UC”) to nil for the period 10 October 2021 until 9 November 2021 (“the erosion decision”) on the basis that an element for limited capability for work and work-related activity (“LCWRA”) was added to her UC entitlement.
- Heading
- Section 1
- The Issues
- Background
- MJ’s Entitlements to UC before and after the erosion decision
- Standard allowance £324.84
- Standard allowance £324.84
- The Decision of the Tribunal
- The Statutory Framework
- The Secretary of State’s Submissions
- the effect of the addition of the LCWRA element was to erode the TSDPE to nil if the only issue were the application of the erosion principle to the TSDPE upon the addition of LCWRA to MJ’s UC award, she would receive £68.51 per month more in UC (see
- The Justification for Regulation 29(4) of the 2013 Regulations
- Conclusion
- MJ’s Submissions
- the Administrative Court in R(TP & AR) v Secretary of State for Work and Pensions (“ TP3 ”) , per Holgate J, as he then was, at e.g. [74], [162]-[163], [166]-[168], [222]-[224]. Pertinently to this ap
- Status and comparators
- Analogous position
- Justification
- Remedy
- Analysis
- Ambit and Status
- Comparators
- Justification
- Policy background What is being done and why?
- This means, that under a strict reading of regulation 55, the claimant’s TE should be reduced by the full amount of the Limited Capability for Work and Work-related Activity (LCWRA) (not the differenc
- As a result, these regulations amend the 2014 Regulations to put it beyond doubt that the treatment of the LCWRA as a relevant increase is an exception to the general rule regarding amounts awarded fo
- the policy identified in TP1 at [64] that the view of the decision maker that it is desirable to encourage people to act as carers is hardly consistent with deciding that a carer whose needs increase
- just as in TP1 at [82-88] there is no material before me to indicate that the issue of the loss of benefit for someone in MJ’s position was considered before the making of the relevant regulations eit
- the point made in TP2 at [48-52] applies with equal force in the present case. The claim in this case is not directed to any general proposition that Article 14 requires transitional protection to be
- as Swift J found in TP2 at [64], the requirement of justification brings with it the burden of explanation. Overall, I am not satisfied that the Secretary of State has identified any reason which explain
- as in TP2 at [65], it may be that the shortfall to MJ and those in her situation is small in absolute terms (£100 per month), but the difference in real terms is very significant indeed. She is a care
- the argument that it is inherent in the UC scheme that there will be winners and losers or that the erosion principle applies to all claimants across the board fails, just as it did in in TP (CA) at [
- as explained in TP (CA) at [158], citing Lord Bingham of Cornhill in A v Secretary of State for the Home Department [2005] 2 AC 68 at [68]
- as the Court of Appeal explained in TD at [54]
- JA
- Remedy
- Conclusions