Claimants were represented by Jamie Burton KC of Doughty Street Chambers who led Desmond Rutledge of Garden Court Chambers, instructed by William Ford of Osbornes Law Solicitors.
In March 2020, the Secretary of State for Work and Pensions (“SSWP”) introduced legislation (“the 2020 Regulations”) to increase the standard allowance in Universal Credit (“UC”) by approximately £20 a week in response to the Coronavirus pandemic. But this COVID uplift was not paid to those on legacy benefits, including many disabled claimants on Employment and Support Allowance. The COVID uplift was extended a further six months in April 2021. This resulted in a £20 difference between the standard allowance of UC and the personal allowance of legacy benefits throughout this period. The appellants, all of whom were in receipt of legacy benefits, argued that this difference in treatment amounted to discrimination under article 14, when read with article 8/article 1 protocol 1 of the Convention. Swift J dismissed the claim, holding that the difference in treatment was justified. Before the Court of Appeal, the appellants argued that:
- In assessing whether the SSWP’s actions were justified, the judge erred by assessing proportionality only at the time the measure was enacted in March 2020, and not by reference to the facts and evidence at the time of the claim being heard in November 2021.
- The policy to apply an uplift to UC was an anti-poverty measure and both groups of claimants qualified for benefits based on their lack of means.
- Evidence available in 2021 demonstrated that the predictions upon which the policy was based were wrong: new UC claimants did not face greater financial disruption compared to existing claimants in terms of their inability to meet their needs.
- Further, circumstances had materially changed since the 2020 Regulations were made, and the policy had adverse implications for disabled people. Those unable to work through no fault of their own who were on ESA were disproportionately affected both by the failure to increase legacy personal allowances and by the higher basic living costs they faced during the pandemic.
- This evidence was highly relevant to the proportionality of the policy and whether the difference in treatment remained objectively justifiable, and the judge failed to take this into account.
Lady Justice Simler, giving the lead judgment, rejected the appellants’ appeal holding:
- The judge had applied the guidance on justification in Lord Reed’s judgment in R(SC) v SSWP [2021] UKSC 26, and in making his assessment the judge had rightly recognised that the decisions involved complex social and political judgments and difficult socio-economic choices.
- The purpose of the UC uplift measure was not to alleviate financial difficulties experienced by all individuals facing hardship because of the pandemic. Rather, the UC uplift was a temporary measure targeted at individuals who became unemployed due to the pandemic who were newly claiming UC.
- Considering this policy rationale, the two cohorts were not in truly comparable positions; the rationale did not extend to legacy benefit claimants.
On the last point, Simler LJ said:
“The appellant cohort were either not in the labour market at all by virtue of their disabilities, or only to a limited extent. That does not mean they were not a deserving group, and they were undoubtedly vulnerable. Nonetheless, a hard choice was made to prioritise those in the labour market but whom it was anticipated would quickly become unemployed as a direct consequence of the pandemic and the lockdown measures that followed, and do so in large numbers” (para 52).
While mitigating destitution is inevitably an objective of a cash-based benefit like the benefits involved in this case, it is not the only objective and the appellants’ case misunderstands or misstates the rationale and purpose advanced here by the SSWP. The uplift was not targeted at alleviating hardship as a result of increased costs during the pandemic. It was targeted at alleviating a particular type of financial disruption, namely that experienced by those who had lost or were at risk of losing employment or significant income, and who as a result were making new claims for social security benefits for the first time having previously been financially self-sufficient” (para 53).
In conclusion, Simler LJ said:
“For the reasons I have given, the appellants’ criticisms of the judge’s approach based on a policy objective of alleviating poverty that required the accurate identification of those suffering the greatest financial deprivation or most increased hardship (namely that faced by disabled legacy benefit claimants), cannot found any arguable basis for concluding that Swift J erred in law. The evidence advanced in support of the appellants’ case, while compelling on its own terms, was not relevant to the SSWP’s broad policy objective or rationale, and the judge cannot be criticised for regarding it as directed to a distinct and different point.” (para 58).
This judgment has been widely reported in the media. See coverage in The Big Issue here.
