[2025] UKUT 035 (AAC)

By way of riposte to the Secretary of State’s position, that the Upper Tribunal should reinstate her original decision, it was MJ’s contention that that would have the perverse consequence that her monthly award of UC would decrease, despite her needs increasing. Her case was that the original decision breached her rights pursuant to Article 14 ECHR because she was treated less favourably than other transitionally protected claimants, none of whom suffered a loss of benefit on a change of circumstances which resulted in their needs increasing.

MJ contended that the Secretary of State had not only failed to justify the differential treatment, but had failed even to attempt to explain it. Instead, she had sought to justify a different provision, regulation 29(4) of the 2013 Regulations, concerning the interaction between the carer’s element and the LCWRA element of UC, which was not and never had been at issue in the proceedings.

It was to be assumed that that was because the Secretary of State was simply not able to offer any kind of explanation or justification. If so, that was scarcely surprising: it was difficult to envisage what sensible justification might be offered to justify MJ’s situation, particularly in the light of the Secretary of State own policy, which was that: (a) transitionally protected claimants should not be subject to a reduction in benefits as a result of an increase in their needs, and (b) transitional protection should be gradually eroded (as opposed to wiped out a stroke, causing a cliff-edge reduction in benefit), save in specified circumstances which did not apply here.

Ms Smyth submitted that MJ’s case was strongly supported by the reasoning of the Upper Tribunal in a recent case which the Secretary of State did not even mention in her written submissions: Secretary of State for Work and Pensions v JA [2024] UKUT 52 (AAC) (“JA”), as well as a long line of earlier case-law in which the Secretary of State’s decisions in respect of transitional protection had repeatedly been held to breach Article 14 ECHR.

MJ sought mandatory reconsideration of the erosion decision of 25 October 2021. On 4 March 2022 the decision was upheld on mandatory reconsideration.