[2025] UKUT 035 (AAC)

MJ’s previous written submissions identified two alternative statuses. The Secretary of State has taken no point on the status issue and MJ does not address it further. There is plainly a relevant status (and cf. JA at [71]-[90)].

As to comparator 1, a person who is not already a carer, but has an award superseded to receive the LCWRA element, MJ drew attention to the fact that bespoke protection is now available, in regulation 55(5) of the 2014 Regulations, for a person who moves from having LCW to LCWRA, so that the transitional protection is not wiped out at a stroke. The Secretary of State’s own material expressly accepts that this protection is necessary, to avoid an overall reduction in entitlement in UC when needs change.

An example under comparator 2 is a person who is receiving the TE and the LCWRA (prior to the conversion date), who subsequently becomes a carer. Crucially, she does not see any reduction in her UC award (and her TE remains intact) as a result of the combination of being a carer and having LCWRA. That completely disposes of the point made by the Secretary of State. Moreover, there is nothing remotely “vague” about that as a comparator. On the contrary, it shows the patently unjustifiable differential treatment to which MJ is subject.

These are the Secretary of State’s benefit rules and she ought to be well aware of the different scenarios which might arise in practice, not least given that she has both a public law obligation to ensure consistent treatment amongst claimants, and is also subject to the public sector equality duty in s.149 of the Equality Act 2010. The fact that she has not identified a single alternative scenario where a transitionally protected claimant receives less UC as a result of a change in circumstances which increases her needs (still less sought to justify this situation) is telling in itself. It shows that MJ’s situation is an outlier. The Tribunal is clearly not assisted by the Secretary of State’s failure to explain any of this.

There is no issue about ambit. MJ’s claim is clearly within the ambit of Article 14 and Article 1 Protocol 1.