Jamie Burton QC acts as High Court decides on uplift to legacy benefits

Between 30 March 2020 and 5 October 2021 the standard allowance element of Universal Credit (“UC”) was increased by approximately £20 per week. The standard allowance is the element of UC that is intended to cover basic living costs. There was no corresponding increase for those on so called “legacy benefits”, including Employment and Support Allowance (“ESA”), Jobseekers’ Allowance (“JSA”) and Income Support (“IS”).

Four Claimants brought a challenge in the High Court in relation to the government’s failure to apply a similar increase to legacy benefits. Two of the Claimants were in receipt of ESA and the Third and Fourth Claimants were in receipt of IS and JSA. Permission for the case to proceed was granted by the High Court on 27 April 2021, and a final hearing was heard on 17 and 19 November 2021.

The Claimants argued that this ongoing difference in treatment between those in receipt of UC and those in receipt of legacy benefits was discriminatory, contrary to Article 14 of the European Convention on Human Rights.

The Court accepted that there were a greater proportion of disabled persons in receipt of legacy benefits, compared to disabled persons receiving UC and that disabled persons in receipt of legacy benefits were in an analogous position to disabled persons in receipt of UC.

Whilst the Court accepted that there was discrimination towards disabled people on legacy benefits, the Judge ruled that the difference in treatment was justified. Mr Justice Swift (giving judgment in this case) accepted the justification put forward by the Secretary of State for Work and Pensions (“SSWP”), that the increase to the standard allowance of UC was done with the intention of providing additional support to those people who lost their jobs as a result of the Covid-19 pandemic and were forced to claim UC for the first time. Mr Justice Swift accepted that using the increase in UC to cushion the loss of employment or reduction in income was a legitimate objective.

Whilst the Court accepted that the regulations increasing the rate of UC in March 2020 (and those extending it March 2021) did not distinguish between new UC claimants and persons already in receipt of UC (with the effect being that all UC claimants received the uplift), Mr Justice Swift did not consider this affected the justification advanced by the SSWP.

At the hearing, the court had been presented with evidence that, those new to benefits tended to have higher rates of savings and were better able to meet the costs of the pandemic as a result. The judgment did acknowledge the very low level of income provided by legacy benefits and the hardship those in receipt of these benefits must have faced during the pandemic. However, Mr Justice Swift did not consider that this was legally relevant to the justification advanced by the SSWP.

The Claimants legal team is currently giving consideration to whether there are merits to appeal to the Court of Appeal.

Jamie Burton QC instructed by William Ford of Osbornes Law, represented the Claimants alongside Desmond Rutledge of Garden Court Chambers.

Press release by Osbornes can be found here.