[2025] UKUT 035 (AAC)

The Welfare Reform Act 2012 (“the 2012 Act”) introduced UC to replace six types of legacy benefits, including income-related ESA. Subject to qualifying conditions, an award of a legacy benefit could include an amount in respect of disability. An award of UC includes, inter alia, a standard allowance (s.9), an amount for housing costs, that is, the housing element (s.11), an LCW or LCWRA element (s.12(2)(a) and a carer element (s.12(2)(c)).

The 2012 Act did not replicate any legacy premiums in respect of disability. Subsequently, the 2014 Regulations were, as noted previously, amended in light of the TP1 ruling to award transitional SDP amounts to persons who had received the premium as part of their legacy benefit, in this case income-related ESA. The Regulations also made provision for a transitional SDP amount to become the transitional element of UC.

Material for present purposes is regulation 55 of the 2014 Regulations, which provides for the circumstances in which the transitional element will be eroded over time in light of changes to, or increases in, an award of UC. This regulation forms part of the 2014 Regulations which deal with managed migration to UC and provides for transitional protection to those previously in receipt of legacy benefits (subject to conditions). So far as material, regulation 55 (in the version in force between 24 July 2019 and 24 July 2022 and thus at the date of the decision under appeal on 25 October 2021) provides (with emphasis added):

“(1)

The initial amount of the transitional element is—

(a)

if the indicative UC amount is greater than nil, the amount by which the total legacy amount exceeds the indicative UC amount; or

(b)

if the indicative UC amount is nil, the total legacy amount plus any amount by which the income which fell to be deducted in accordance with section 8(3) of the Act exceeded the maximum amount.

(2)

The amount of the transitional element to be included in the calculation of an award is—

(a)

for the first assessment period, the initial amount;

(b)

for the second assessment period, the initial amount reduced by the sum of any relevant increases in that assessment period;

(c)

for the third and each subsequent assessment period, the amount that was included for the previous assessment period reduced by the sum of any relevant increases (as in sub-paragraph (b)).

(3)

If the amount of the transitional element is reduced to nil in any assessment period, a transitional element is not to apply in the calculation of the award for any subsequent assessment period.

(4)

A “relevant increase” is … an increase in any of the amounts that are included in the maximum amount under sections 9 to 12 of the Act (including any of those amounts that is included for the first time), apart from the childcare costs element”.

Regulation 29 of the 2013 Regulations provides (so far as material):

“(1)

An award of universal credit is to include an amount (“the carer element”) specified in the table in regulation 36 where a claimant has regular and substantial caring responsibilities for a severely disabled person …

…

(4)

Where an amount would, apart from this paragraph, be included in an award in relation to a claimant by virtue of paragraphs (1) to (3), and the claimant has limited capability for work and work-related activity … only the LCWRA element may be included in respect of the claimant.”

S.3(1) of the Human Rights Act 1998 (“the HRA”) provides:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

Article 14 of the Convention provides

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Article 1 of the First Protocol (“A1/P1”) to the Convention provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”

It is well-established (and not in dispute in this case) that entitlements to social security benefits are “possessions” for the purposes of the A1/P1 right: see Stec v UK (2005) 41 EHRR SE18.

The approach required in considering claims relying on Article 14 is well-established (and again not in dispute). In T v Secretary of State for Work and Pensions [2023] EWCA Civ 24, Simler LJ (as she then was) explained the approach in this way (at [38]):

“(1)

does the alleged discrimination concern the enjoyment of a Convention right, such as article 1, Protocol 1 or article 8?

(2)

has the claimant been treated less favourably than a similarly situated group of people?

(3)

is the difference in treatment on the ground of a "status" recognised under article 14?

(4)

is there an objective and reasonable justification for the difference in treatment?”

However, the authorities also stress that a mechanistic approach should not be taken in all cases. Rather, a holistic view of all the circumstances, including the reasons for differences in treatment between different persons and the justification for these differences, must be taken. The issues of “breach” and “justification” often interact and that must be borne in mind when assessing whether there is any violation of Article 14. The point was explained by Swift J in R (T) v. Secretary of State for Work and Pensions [2022] EWHC 351 (Admin) in this way (at [20]):

“As is obvious from the authorities, any discrimination claim can contain a range of what can be described as moving parts – for example the closeness of the analogy that exists, the extent of the difference in treatment, and so on. In many instances, discrimination claims are better decided considering all these matters as part of a single exercise that includes justification, rather than taking each in turn as one of a series of discrete preconditions standing in the way of the need for any justification. In most instances the issue will not simply be whether some distinction can be drawn between the claimant and his comparator, but whether any distinction is a relevant distinction. This can require consideration of all evidence, including what is said by way of justification.”

(See also JNW & BHW v. Secretary of State for Work and Pensions (UA-2023-000748-USTA, issued on 14 August 2024) at [35]-[36].)