Housing Systems: Combating poverty and sustaining tenancies.

New case law protects TSDPE when moving out of HB funded accommodation

Many Universal Credit claimants who were getting a Severe Disability Premium (SDP) in an award of Income-Related ESA, Income Support or Income-Based JSA, before they moved onto UC have a Transitional Element included in their UC award.

The Transitional Element is at a fixed rate for the first UC Assessment Period. After that, it can be eroded or lost. The TE is eroded when a new Element is included or an existing Element is increased (except the Childcare Costs Element).

A recent Upper Tribunal decision confirms that it is unlawful for severely disabled people to lose their Transitional Element simply as a result of moving from specialist housing funded by Housing Benefit to more mainstream housing covered by UC.

The Judge in SSWP v JA, [2024] UKUT 52 (AAC) found that the erosion of the Transitional Element that takes place when someone moves from non-mainstream accommodation funded by HB into accommodation where they are entitled to a UC Housing Costs Element (and lose all their Transitional Element) is unlawful discrimination; and that Reg 55(2) of the UC(TP) Regs 2014 which had allowed for that erosion should therefore be disapplied in such cases.

The Case

The claimant, Julie, was in receipt of Income-Related Employment and Support Allowance with a Severe Disability Premium when she made a claim for Universal Credit through natural migration in June 2018. She was moving home from one Local Authority to another. She was entitled to Transitional Protection – a Transitional Element was included in her UC award.

In September 2020, she moved into ‘specified accommodation’ and needed to claim Housing Benefit for help with her rent.

Then in May 2021, Julie moved out of ‘specified' accommodation (where she had been receiving Housing Benefit) into sheltered housing.

The move meant that her HB was replaced by a Housing Costs Element in her UC award. This additional Element eroded her Transitional Element to nil i.e. completely removed the Transitional Protection she had been afforded, meaning a drop in her income and leaving her significantly worse off as a result.

The UT accepted that Julie’s situation should be the same as a person moving between either two sets of general needs accommodation, or between two sets of specified/temporary accommodation, who would not have suffered any erosion of their Transitional Element.

They upheld the FTT's decision. The severe drop in the Julie's income contravened her rights under the European Convention on Human Rights, i.e. the combined effect of Article 14 (prohibition of discrimination) and the First Protocol of Article 1 ("A1P1" - the right to peaceful enjoyment of possessions).

The UT decided that the remedy was to disapply Reg 55(2) of the UC(TP) Regs 2014 – in other words that her Transitional Element should not have been eroded by the move.

We do not know yet whether the DWP will try to appeal this decision.

In the meantime, anyone whose Transitional Element is eroded because they move from non-mainstream accommodation (funded by HB) into mainstream accommodation (funded by UC) should request a Mandatory Reconsideration of the DWP's decision to erode their Transitional Element - see our Standard Letter UC TP1. 

If the DWP do decide to challenge this decision, see below for what might happen.

Will this only apply where the claimant lost the Severe Disability Premium when they moved onto UC?

We think so. For a discrimination decision to be made under the Human Rights Act, the appellant has to have a distinct 'status'. In this case the Judge stated that the Julie’s status was “someone with a transitional element based on her severe disability premium, included in her Universal Credit award calculation and who has moved from specified accommodation to mainstream rented accommodation”.
Also this case was closely linked to the cases of TP and AR - which both involved claimants who had lost the Severe Disability Premium when they moved onto UC.


Will this apply to claimants who move onto UC through the managed migration process?
We hope so. The UC (TP) Regulations state that a Transitional SDP Element becomes a Transitional Element from the claimant’s second Assessment Period, and so Regulation 5 of the Universal Credit (Transitional Provision) Regulations - the one that erodes the Transitional Element - applies to both 'types' of Transitional Element. 


Will this apply to claimants moving from ‘temporary' accommodation?
We hope so. The case was looking at a UC claimant who had been getting support from the Local Authority through Housing Benefit to help pay their rent. UC claimants who live in ‘temporary accommodation’ also get Housing Benefit to help pay their rent.

I have a client who moved out of ‘specified' accommodation last year – his Transitional Element was eroded due to the inclusion of a Housing Costs Element. Does this UT decision help him?
Yes - although unless he had requested a MR of the decision AND received a MR Notice before 14th February 2024, the anti test case rule^ will apply - it operates to prevent arrears of benefit being paid for a period prior to the date of the decision of an Upper Tribunal or court in similar cases.
^ Section 27(3) of the Social Security Act 1998.

The way we see it is - anyone who had an SDP before they moved onto UC, and who was entitled to a TE when they moved onto UC, and this TE was then eroded when they moved from 'specified' to mainstream rented accommodation will fall into three groups: 

  • Those who already had already challenged the erosion and had a MR decision made before 19th February 2024 (refusing to revise the decision on erosion) can now lodge an appeal (if in time). The FTT are not bound by the anti-test case rule. The claimant should refer to the JA case in their appeal submission. The FTT should follow the JA case and allow the appeal (and then the DWP should pay back pay all the way back to when they moved out of specified accommodation).
  • Those who already had requested an MR before 19th February 2024 but the MR decision was not made before that date – the DWP might, when considering the MR request, revise the original decision (and award back pay all the way back to when they moved out of specified) OR they might apply the anti-test case rule and agree to supersede the decision from 19th February 2024 (we are assuming from the Assessment Period that starts on or after that date). If they decide the latter, there would be no point in appealing to the FTT.
  • Those who have not requested an MR can now request a supersession* of the amount of their UC award, from 19th February 2024 onwards, on the grounds that it should be superseded in line with the JA decision. It was an error of law to erode their TE when they moved, and they are entitled to have that corrected. See our Standard Letter UC TP2.
    * Reg 35(5) of the UC etc Decision and Appeal Regs.

NOTE: When calculating entitlement to a Transitional Element as of 19th February 2024, we would expect that the DWP will take into account any changes that would have naturally eroded the Transitional Element - such as rent increase, the addition of a LCWRA Element etc. Also the claimant may have had a change that meant they lost it altogether (such as becoming a couple). 


What if the DWP appeal the Upper Tribunal decision?
If the DWP seek and are given permission to appeal the Upper Tribunal's decision, then whilst that outcome is pending, the DWP would need to try not to breach the UT case law. They would be able to stay any other appeals that are made on the same issue. If the facts of a case were different enough that DWP believe the case law shouldn't apply to it, then DWP would continue to apply the rules as they see them working i.e. by eroding a claimant's Transitional Element.


Click here for the Standard Letters and a couple of examples.

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