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Court of Appeal decision -

government breached human rights of two disabled households left worse off on Universal Credit after errors with their legacy benefits.

 

The Court of Appeal has decided that the government breached human rights of two households were someone was disabled left worse off on Universal Credit after errors with their legacy benefits.

They ruled that failure to provide transitional protection for claimants who transferred to Universal Credit following incorrect legacy benefit decision, who had had no change in their circumstances, was unlawful.

It is not yet known what action the DWP will take, although it would not be a surprise if they apply for leave to challenge the decision to the Supreme Court.

Until such time it would be a good idea to build up a list of your clients/ tenants whose income has reduced since they went on to Universal Credit, and who appear to have been forced to claim UC because their legacy benefits were ended incorrectly.

We believe this decision affects those claimants who:

  • Had a DWP benefit stopped by the DWP in error.
  • Then had no option but to claim Universal Credit.
  • Were worse off as a result.
  • The reduction in income was related to the household's disabilities.
  • Would have been entitled to transitional protection had they stayed on the legacy benefit system and been managed migrated onto UC.
     

A claimant who believes there are in a very similar position can use our Standard Letter UC HM10 to request transitional protection payments - be aware there is no guarantee that the DWP will agree.

The decision

Child Poverty Action Group in (2020) EWCA Civ 618 won the case for 2 disabled households who were left considerably worse off when DWP incorrectly stopped their benefits and they were forced to claim Universal Credit.

Lord Justice Singh said:
" ....but for the acknowledged errors made by the state itself in relation to these Appellants, they would have remained on legacy benefits. It is the difference in the way that they were treated as compared with others who did remain on legacy benefits (because no error was made in their cases) that needs to be justified."

"Although it is true that the Appellants were not compelled by law to apply for UC, as a matter of practical reality they had no choice but to apply for UC. It is important that the legislation in this country governing social security should be interpreted in a way which conforms to practical reality, given the potential impact on some of the poorest people in society."

The Court of Appeal ruled that there was no justification for treating these two households differently from those claimants who will in the future be moved on to Universal Credit through managed migration – and who will keep the same income level as their legacy benefits through being transitionally protected. This different treatment amounted to unfair discrimination and breached their rights under the European Convention on Human Rights.
 
Why did these households have to claim UC?
 
The 2 households were a single mother (‘TD’) and her disabled daughter (‘AD’), and a woman with mobility difficulties who lives alone (PR).
TD had been receiving Carer's Allowance, Income Support, Housing Benefit and Child Tax Credit.
TD’s daughter’s DLA expired although she had applied for a renewal for her (which was later granted).
But in February 2017, the Job Centre told TD that because the DLA had ended, TD's Carer's Allowance and therefore her Income Support would also end, and that when Income Support ended she’d have to claim UC – which she did. But this was wrong because the DLA renewal was pending. Because of the ‘lobster pot’ principle she could not return to her legacy benefits.

TD requested a mandatory reconsideration of the decision to end her Income Support, as the decision on renewing DLA was pending and she was still AD’s carer. DWP accepted that there had been an error and paid some arrears. But as she was stuck on UC, she was still almost £140 a month worse off, because the lower disabled child element of UC is lower than the additional disabled child payments in legacy benefits.

PR had been receiving PIP and ESA and Housing Benefit, but in May 2016 her PIP was ended, and in March 2017 her ESA was terminated because she failed to attend a work capability assessment despite her providing a letter from her GP explaining why she could not attend.
Although later the ESA (and PIP) was reinstated because it had been ended wrongly, PR was forced to claim UC while awaiting the decision because her only income at that time was Housing Benefit.
The drop in benefits was up to £187.95 a month, because of the loss of the Severe Disability Premuim which does not exist in UC. 
NOTE that since then the DWP introduced Transitional SDP payments.

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