Upholding the rights of disabled people through the courts

by Sara Brunet

Published: 26 Feb 2020

Sara Brunet is a lawyer in our Advisory and Litigation team. She explains the significance of a recent ruling in the Court of Appeal.

At the end of January, the Court of Appeal ruled on two linked High Court cases in which we had intervened: TP, AR & SXC v Secretary of State for Work and Pensions. The Court of Appeal upheld the judgments of the High Court, finding that certain aspects of the scheme to migrate people onto Universal Credit were discriminatory against disabled people.

As enforcers of the Equality Act 2010, and as a national human rights institution, we have the power to intervene in legal cases. Our role as a strategic regulator means that we focus our resources on cases that have a potentially wider impact in promoting human rights and building a fairer society.

TP and AR were represented by Leigh Day Solicitors and SXC by Central England Law Centre. We intervened in both of these cases when they were heard before the High Court, and in the joined appeal.

Our aim was to seek the reversal of a discriminatory policy – we wanted to ensure that disabled people moving to Universal Credit did not have their overall benefits payment cut.

We have the power to intervene in court proceedings in human rights and equality cases initiated by others. Intervening in cases allows us to make expert submissions to help the court and to highlight important equality and human rights considerations. We may provide, for example, an expert analysis of one or more of the issues, input on international legal aspects or additional evidence.

This is one of several recent cases relating to the implementation of benefit regulations in which we have intervened to challenge discrimination against people with certain protected characteristics. These include a recent case in the European Court of Human Rights, where the Government was found to have discriminated against a woman who was a victim of domestic violence in its implementation of the ‘bedroom tax’.

About the case

TP and AR previously received Severe Disability Premium and Enhanced Disability Premium benefits, but had been forced to move onto Universal Credit when they moved across local authority area boundaries. Under Universal Credit, they stopped receiving Severe Disability Premium and Enhanced Disability Premium, leaving them suddenly around £180 a month worse off.

The High Court found that the different treatment of disabled people who moved to a new local authority area compared to those who moved within the same local authority area was discriminatory, contrary to Article 14 (which prohibits discrimination) read with Article 1 Protocol 1 (protection of property) of the European Convention on Human Rights

As a result of this initial ruling, the Government attempted to rectify the situation by stopping other disabled people from migrating from their existing benefits and providing those who had already moved onto Universal Credit with transitional payments. However, the transitional payments the Department for Work and Pensions (DWP) proposed to pay to those who had already moved onto Universal Credit were only £80 per month, rather than the £180 per month they had lost. 

In a second challenge, TP, AR and a third claimant SXC, argued that paying the lower rate was unlawful because they were being treated differently to disabled people who remained on legacy benefits. The High Court ruled that these regulations were also discriminatory contrary to Article 14 of the European Convention on Human Rights. 

The Court of Appeal found the following:

  • The Court upheld the lower courts’ ruling that the difference in treatment between two groups of disabled people, who have the same support needs, was ‘manifestly without reasonable foundation’ and therefore could not be justified.
  • The Court noted that the Secretary of State for Work and Pensions had failed to bring any substantive evidence before the High Court to explain the difference in treatment.
  • The Court found that the Government had failed in its duty of candour (being open and honest) because it had failed to disclose during the High Court hearings that it had already made a policy decision to stop moving disabled people in receipt of Severe Disability Premium and Enhanced Disability Premium across to Universal Credit, and to provide transitional payments for those who already had been moved.

The impact of this judgement

By upholding the previous judgments of the High Court, this ruling has helped to protect thousands of disabled people against a sudden and substantial benefit cut.

The DWP say that they are now making transitional payments to more than 15,000 people who were receiving Severe Disability Premium and Enhanced Disability Premium. These benefits were awarded in order to allow disabled people to pay for the support they need to lead independent lives. We are glad that our support of this case has helped to protect their rights.