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.
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 Department of Work and Pensions (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.”
A four-day hearing took place on 01 to 04 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, 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”.
The judge concluded: “The implementing arrangements do at present give rise to unlawful discrimination contrary to Article 14 European Court of Human Rights (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.”
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 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.
AR, the second claimant said: “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 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.”