By Robert Povall.
Robert is a Campaign Volunteer with GMLC. He has just completed the GDL at the University of Law and is passionate about making a difference. He wants to become a Barrister, specialising in immigration, civil liberties and human rights.
Imagine that you have a severe disability and receive benefits to help meet your living and care costs. You then decide to move nearer to specialist care services. Despite the stress of moving house, you will likely consider this a sensible decision. You would not expect your benefits to be cut as a result.
This is the scenario that came before the High Court last month, leading to a landmark ruling that the government failed in its duty to protect some of our most vulnerable and in doing so acted unlawfully.
‘Universal credit’ (UC) is the result of a recent reform of the benefits system. It combined various pre-existing benefits and was aimed to streamline the process for both government and claimants. UC is slowly being introduced on a geographical basis by postcode area and anyone moving from a non-UC area into one that is will be required to transfer to the new system.
TP and AR are two people with severe disabilities who previously received income-related Employment and Support Allowance (ESA). Both received additional amounts by way of severe disability premium and enhanced disability premium. TP decided to move closer to specialist care and AR moved because he could no longer afford his former property due to the imposition of the bedroom tax. Both TP and AR moved to areas where UC was in effect and would replace the benefits they once received. Unfortunately, the level of both TP and AR’s benefit fell significantly (£170 less per month) as a result. Why? Because an equivalent additional payment currently does not exist for recipients of UC, regardless of any severe disability suffered.
What is Judicial Review? Judicial review enables us to challenge a public body’s exercise of power. The Administrative Court (a division of the High Court) may be asked to decide whether an exercise was lawful or not. If the decision is found unlawful, the court may have it set aside and order the decision-maker to reconsider their actions in light of the ruling.
Discrimination specialists Leigh Day issued judicial review proceedings on the claimants’ behalf late last year, arguing that what had happened was in breach of the Equality Act 2010 and contrary to the European Convention on Human Rights (ECHR). Judicial review enables us to challenge a public body’s exercise of power. The Administrative Court (a division of the High Court) may be asked to decide whether an exercise was lawful or not. If the decision is found unlawful, the court may have it set aside and order the decision-maker to reconsider their actions in light of the ruling. Whilst Justice Lewis dismissed two of the three grounds, His Lordship found that the absence of any ‘top-up’ payments for this vulnerable group compared to others constitutes discrimination contrary to the ECHR and was therefore unlawful.
Since the trial, the Secretary of State for Work and Pensions has announced that no person in receipt of a severe disability premium will be required to claim UC until transitional protection is in place. However, the SSWP is seeking to appeal the decision.
Perhaps in the future, individuals like TP and AR will receive the support they need without having to go through such an arduous process to gain access to their rights.
Unfortunately, until the system is able to protect those it is designed to protect, it seems that it falls squarely on the shoulders of local advice services, law centres and pro bono lawyers to ensure justice is administered for society’s most vulnerable, most of which is done on a voluntary basis. Perhaps in the future, individuals like TP and AR will receive the support they need without having to go through such an arduous process to gain access to their rights… But I reckon we’ve done enough imagining for one day.
