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The Issues
The Issues
The appeal raises the issue of whether the erosion decision following the award to MJ of LCWRA was lawful, including not being in breach of her rights guaranteed by Article 14 and Article 1 of the First Protocol to the European Convention on Human Rights (“the Convention rights”). MJ does not challenge the fact that, pursuant to regulation 29(4) of the Universal Credit Regulations 2013 (“the 2013 Regulations”) she ceased to be entitled to the carer element of UC following her award of LCWRA. What she challenges is the fact that she also lost the entirety of her transitional protection.
- 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