English Court of Appeal rejects challenge of lack of increase to personal allowance of legacy benefits during pandemic Universal Credit uplift

About this case:

• Citation:
  [2023] EWCA Civ 24
• Judgment:
  External link
• Court:
  England and Wales Court of Appeal
• Judge:
  Lady Justice Simler

Appellants T, Philip Wayland, Martin Keatings, and Ian Barrow argued that the decision of the Secretary of State for Work and Pensions not to increase the personal allowance element of the benefits they were receiving after the uplift of Universal Credit in March 2020 was unlawfully discriminatory. They argued that the decision was incompatible with articles 8 and 14 ECHR and were directly discriminatory on the grounds of “other status”.

The appeal was considered by Lady Justice Simler, Lord Justice William Davis, and Lady Justice Whipple. J Burton KC and D Rutledge appeared for the appellants and E Brown KC and J McArthur for the respondent.

Assessment of justification

From 30 March 2020 to 6 October 2021, inclusive of a six-month extension, the standard allowance element of Universal Credit was increased by £20 by the Social Security (Coronavirus) (Further Measures) Regulations 2020. At no stage during this period was any corresponding increase made to the personal allowance element of Employment and Support Allowance, Income Support, or Jobseeker’s Allowance (collectively legacy benefits). The first and second appellants had been in receipt of ESA, the third in receipt of IS, and the fourth of JSA during the relevant period.

It was contended by the appellants that once the exceptional circumstances prevailing during the early part of the pandemic ceased to apply, the difference in treatment between those in receipt of UC and those in receipt of legacy benefits, ceased to be justified and constituted both unlawful direct discrimination on the grounds of “other status” and/or unjustified indirect discrimination on the grounds of disability. It was therefore incompatible with article 14, read with article 1, Protocol 1 and/or article 8 ECHR, and thus unlawful.

The appellants’ claims were initially dismissed by a judge of the Administrative Court, who held that there was no unlawful direct discrimination for article 14 purposes as there was no meaningful difference between the other status relied on, namely being a person in receipt of a legacy benefit, and the less favourable treatment alleged. Although he held that there was indirect discrimination because the measure had a disproportionate impact on disabled people, the judge found that the difference in treatment was justified.

The sole ground of appeal was that, in assessing whether the respondent’s actions were justified, the judge had been mistaken in his belief that if a measure was proportionate at the time it came into force, it could not subsequently become disproportionate. For the respondent, it was submitted that in the context of a social policy and macroeconomic decision, the margin of discretion afforded to the SSWP was exceptionally wide and the policy was justifiable in the circumstances.

Hard choice was made

In an opinion with which the other two judges agreed, Lady Justice Simler observed: “There were three aspects to the [respondent’s] rationale: providing enhanced support to mitigate the impact of the impending pandemic on society by cushioning those who it was anticipated would lose their jobs in dramatically high numbers and newly become benefit claimants; doing it in a way that made practical implementation possible; and having clear messaging to provide reassurance to civil society. The latter is not a hard- edged point but is significant. The mitigation actions were adopted in recognition of the fact that sudden, short-term unemployment can trigger social and health problems, leading to dependence on welfare, and hampering a return to employment.”

She continued: “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 who 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.”

Addressing the question of justification, Simler LJ said: “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 [he]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.”

She concluded: “In the circumstances, it has not been shown that the judge proceeded on a mistaken basis that if a measure is proportionate at the time it comes into force, having regard to the circumstances prevailing at the time, it cannot subsequently become disproportionate, notwithstanding the discriminatory impact it has on a group of people. On the contrary, I am satisfied that he did not do so.”

The appeal was therefore refused.