Desmond Rutledge, of the Garden Court Chambers Welfare Benefits Law Team, represented the Claimants, led by Jamie Burton QC of Doughty Street Chambers and instructed by William Ford of Osbornes Law.
On 20 March 2020, the Chancellor announced that as part of a package of measures introduced in response to the coronavirus pandemic the standard allowance in Universal Credit would be increased for the next 12 months, by approximately £1,000 a year (or £20 a week) to “strengthen the safety net”. This was put into effect by the Social Security (Coronavirus)(Further Measures) Regulations 2020 (“the 2020 Regulations”). But the £20 uplift was not extended to those on legacy benefits. This resulted in a £20 difference between the standard allowance of Universal Credit and the personal allowance of legacy benefits, such as Employment and Support Allowance. In R (T & Ors) v Secretary of State for Work and Pensions  EWHC 351 (Admin), the Claimants argued that this difference in treatment was in breach of article 14 ECHR and therefore required justification. The evidence showed that a greater proportion of disabled persons were in receipt of legacy benefits compared to disabled persons receiving Universal Credit, and as disability was a “suspect ground” a clear and substantial justification was required.
In a judgment handed down today Swift J concluded that the difference in treatment of Universal Credit claimants over those claiming legacy benefits resulting from the 2020 Regulations was justified. Swift J referred to a witness statement prepared by the Deputy Director for Universal Credit in which it was said that the increase to the standard allowance “was a way of providing additional support to those who did lose jobs or income because of the pandemic and became reliant on Universal Credit for the first time” and “the increase was intended to cushion the sudden impact of loss of employment or reduced employment”. Swift J accepted this was a legitimate objective.
“The central question raised by the Claimants’ discrimination claims is whether it was lawful for the Secretary of State to direct her attention to the position of new benefits claimants – all of whom would have made claims for Universal Credit. I consider that she was. New benefits claimants would need to adjust to a loss in income. They would be affected differently to persons already claiming benefits. Given the objective pursued by the 2020 Regulations and the circumstances in which the decision to make those Regulations was made, legal scrutiny of the decision to make the 2020 Regulations must allow the Secretary of State a degree of latitude. All this being so, the distinction between the legacy benefits personal allowances and the Universal Credit standard allowance, consequent on the 2020 Regulations, rested on sufficient reason” .
Swift J acknowledged that the 2020 Regulations made no attempt to distinguish between new claimants and persons already in receipt of Universal Credit prior to March 2020. Swift J also accepted that, given the low level of income provided by legacy benefits, any person required to rely only on that level of income would suffer hardship:
“I also accept that in the context of the pandemic it is likely that it may have been more difficult still to meet basic expenses from that level of income. However, these matters are distinct from the justification advanced by the Secretary of State for the decision to make the 2020 Regulations” .
In conclusion, Swift J said:
“The circumstances in which the decisions to make the 2020 Regulations were ….exceptional. [The] decision was an exercise of political judgment on aspects of a programme of measures designed to achieve macroeconomic objectives at a time of major national disruption. The 2020 Regulations adopted in pursuit of that programme, drew a broad distinction between Universal Credit and legacy benefits when deciding to provide additional support to persons who lost employment or income because of the pandemic and thereby came within the range of state means-tested benefits for the first time. Even accounting for the fact that the Claimants’ indirect discrimination case is a claim on grounds of disability, I am satisfied that the reasons relied on by the Secretary of State to explain the decision to make the 2020 Regulations provide a sufficient justification” .
Click here for the full judgment – R (T & Ors) v Secretary of State for Work and Pensions  EWHC 351 (Admin)