In a landmark judgment handed down today at the High Court in London, Mr Justice Lewis ruled that the Secretary of State for Work and Pensions (SSWP) unlawfully discriminated against two severely disabled men who both saw their benefits dramatically reduced when they moved Local Authority and were required to claim Universal Credit.
The legal action was brought by two claimants, known only as TP and AR, they were represent by law firm Leigh Day.
TP is a former Cambridge graduate who worked in the financial sector in the City and around the world. In 2016 he was diagnosed with a terminal illness; Non-Hodgkins Lymphoma and Castleman’s disease.
In October 2016 when he became sick he moved temporarily from London to his parents’ in Dorset but after a few months he returned to Hammersmith and Fulham, a Universal Credit full service area, on the advice of his treating clinicians in order to access specialist healthcare.
AR is 36 and suffers from severe mental health issues. In 2017, he moved from Middlesbrough to Hartlepool, a Universal Credit full service area, as he could no longer afford the property he was living in due to the imposition of the bedroom tax.
Prior to moving, both TP and AR were in receipt of the Severe Disability Premium (SDP) and Enhanced Disability Premium (EDP), which were specifically aimed at meeting the additional care needs of severely disabled people living alone with no carer.
Recently released figures from the DWP suggest that 500,000 individuals are in receipt of the SDP . Both the SDP and EDP have been axed and are not available under Universal Credit.
When they moved both TP and AR were required to make a claim for Universal Credit as they moved into local authorities where the controversial new benefit was being rolled out. According to both the men, they were advised by DWP staff that their benefit entitlement would not change.
Despite repeated assurances from the government that “no one will experience a reduction in the benefit they are receiving at the point of migration to Universal Credit where circumstances remain the same” both claimants saw an immediate drop in their income of around £178 a month when they were moved onto Universal Credit.
When they asked for top up payments they were told that Government policy was that no such payments would be paid until July 2019 when managed migration would begin.
As both claimants testified to the court, the sudden drop of income had a devastating impact on them, both physically and psychologically.
TP has been struggling to address his care needs and AR has been unable to afford basic necessities.
According to their lawyer Tessa Gregory from the human rights team at Leigh Day: “Nothing about either of the claimants’ disability or care needs changed, they were simply unfortunate enough to need to move local authorities into a Universal Credit full service area.”
Late last year Leigh Day issued judicial review proceedings on the Claimants’ behalf arguing that what had happened was unlawful on three grounds:
- The SSWP has breached the Equality Act 2010 in failing to have due regard to the impact of removing the premiums on severely disabled people
- The 2013 regulations discriminate against the severely disabled living alone with no carer, as compared to other severely disabled people, contrary to the European Convention on Human Rights
- The implementation of Universal Credit and the absence of any ‘top up’ payments for this vulnerable group as compared to others constitutes discrimination contrary to the European Convention on Human Rights
A four-day hearing took place on 1 -4 May 2018 during which the Equality and Human Rights Commission intervened in support of the Claimants’ case.
Today the judge found in the Claimants’ favour on ground 3, noting in the judgment:
“The impact on the individuals is clear. They were in receipt of certain cash payments (the basic allowance and SDP and EDP). They are now in receipt of cash payments which, overall, are significantly lower than the amount previously received. They are a potentially vulnerable group of persons as the Government in its own material recognises. On the material before me, there appears to have been no consideration of the desirability or justification for requiring the individual to assume the entirety of the difference between income related benefits under the former system and universal credit when their housing circumstances change and it is an appropriate moment to transfer them to universal credit. That is all the more striking given the Government’s own statements over a number of years that such persons may need assistance and that there was a need to define with precision the circumstances in which they would not receive such assistance. In all the circumstances of this case, the operation of the implementation arrangements in the way they do is manifestly without reasonable foundation and fails to strike a fair balance”. [para 88]
The judge concludes: “The implementing arrangements do at present give rise to unlawful discrimination contrary to Article 14 ECHR read with Article 1 of the First Protocol to the ECHR….A declaration will be granted that there is unlawful discrimination. The defendant will then be able to determine how to rectify the unlawful discrimination.” [para 114]
Following months of litigation, on Thursday of last week Esther McVey the Secretary of State for Work and Pensions, carried out a policy U-Turn and committed the Government to ensuring that no severely disabled person in receipt of the SDP will be made to move onto Universal Credit until transitional protection is in place and committing to compensating those like the claimants who have lost out.
Despite this, following the hand down of today’s judgment the Secretary of State for Work and Pensions has sought permission to appeal, maintaining that there was nothing unlawful with the way the claimants were treated.
Commenting on the case, Tessa Gregory a partner at Leigh Day, who represented both claimants, said:
“This is the first legal test of the roll out of Universal Credit and the system has been found to be unlawfully discriminating against some of society’s most vulnerable.
“Whilst we welcome the Government’s commitment to ensuring that no one in our client’s position will now be moved onto Universal Credit until top up payments are in place, it comes too late as it cannot make up for the months of suffering and grinding poverty our clients and many others like them have already had to endure.
“We call upon Esther McVey to compensate our clients and all those affected without any further delay, and urge her to focus on fixing Universal Credit rather than wasting more public funds appealing this court decision.
TP, the first Claimant stated:
“In my 51st year my life was completely and suddenly thrown upside down with the diagnosis of a life changing end stage non-Hodgkin Lymphoma cancer. Having had a successful career I became reliant on financial support from the welfare system. To add to the stress of being seriously ill and undergoing very arduous treatments that have left me unable to work, I have had to take time off convalescing to fight in the Courts for subsistence level benefits. In being compelled to migrate to Universal Credit where I lost the Severe Disability Premium I was deprived of a key mainstay of support for a disabled person living alone with no carer. The financial strain from the cutting of the SDP has made it so much harder for me to cope as it has been an additional daily stress. It has been detrimental to my health.”
“I always believed that I had been treated unfairly and in a discriminatory manner by the DWP, having lost out in this move into Universal Credit. I am delighted that the Courts have concurred that I have been unlawfully discriminated against. I feel vindicated in bringing this important Judicial Review of the DWP’s stance towards me, which also affects numerous others of the most vulnerable people in our society. I am pleased to have been able to have brought this case to the public’s attention, which casts a dark shadow on the fairness of the Universal Credit system.”
AR, the second claimant added:
“I know a lot of people have been awaiting the outcome of this hearing as so many people have been badly affected by the roll out of Universal Credit. I know it is a time of austerity but I do not understand why the Government are trying to penny-pinch with what is a relatively small and very vulnerable group, namely, severely disabled people without a carer. I thought we lived in a society where as a vulnerable group we would be protected not unlawfully discriminated against.”