[2025] UKUT 035 (AAC)

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 in more detail the table below). However, because the LCWRA leads to removal of the carer element, she receives £95.22 less per month after the carer element is removed.

It is readily seen from these facts that the difference in treatment about which MJ complains turns on the withdrawal of the carer element of UC upon the addition of LCWRA. However, the purpose of the LCWRA is to recognise needs arising from MJ having limited capability to work because of a health-related condition. In contrast, the carer element is a benefit which recognises a person’s difficulty with working arising from caring responsibilities. It would plainly be wrong in principle if a person could be entitled to two elements of UC at the same time, where both elements address entitlement arising from different reasons for being unlikely to be fully engaged in employment viz. either because of caring responsibilities of 35 hours or more per week, or a health-related limitation on her ability to work.

To avoid the overlap arising, regulation 29(4) of the 2013 Regulations provides that if a person has the carer element of UC and LCWRA is awarded, “only the LCWRA element may be included in respect of the claimant”. It is the effect of regulation 29 which is material in MJ’s case, not the operation of the erosion principle contained in regulation 55 of the 2014 Regulations. If the matter only concerned regulation 55, the addition of LCWRA to her award, while eroding the TSDPE to nil, would lead to her receiving a larger award of UC than before the addition of LCWRA.

A UC claimant whose case is affected by regulation 55 may or may not be affected by regulation 29 and vice versa. The operation of regulation 29 turns on a person having caring responsibilities and receiving the carer element, who is then awarded LCWRA. The difference with MJ’s two comparators (as also with that of the Tribunal) is that the comparators were not carers and/or were not in receipt of the carer element. The Secretary of State submits that that is fatal to MJ preferred comparators, as it was to the comparator adopted by the Tribunal.

One can anticipate that MJ will say that the effect of regulation 29 of the 2013 Regulations is the problem and that it gives rise to an unjustifiable breach of her Convention rights. The question then is whether there are “very obvious relevant differences between the two situations” of MJ and her comparators: AL (Serbia)v Secretary of State for the Home Department [2008] 1 WLR 1434 at [23]-[25], per Lady Hale. The obvious relevant difference between MJ and her preferred comparators is that she was a carer who could work, was not in receipt of LCWRA, but who was awarded LCWRA because of a health condition meaning that she was unlikely to be fully engaged in employment.

In so far as she continues to advance her second comparator, the Secretary of State submits that it is too broadly framed and imprecise so as to be practically useful as a relevant comparator with MJ. There are too many variables to be able meaningfully to compare MJ with someone else’s “change of circumstances” which has an impact on his or her entitlement to UC. It should be rejected for this reason.