The government faces being taken to court for a third time in relation to their Universal Credit migration arrangements for those who previously received the Severe Disability Premium (SDP) and Enhanced Disability Premium (EDP) and were moved onto Universal Credit (UC) before 16 January 2019.
Two men with severe disabilities, known as TP and AR, have twice already successfully challenged the government in relation to the migration arrangements. They have now written to the Secretary of State for Work and Pensions Amber Rudd for a third time after she announced that the level of payments for severely disabled individuals who have moved onto UC will be set at £120 for single claimants. That amount does not reflect what those individuals have actually lost due to their move onto UC.
In their pre-action protocol letter sent to Ms Rudd, TP and AR argue that the universal credit migration arrangements announced on 22 July 2019 are still unlawful as they short-change individuals who previously received the Severe Disability Premium and Enhanced Disability Premium and moved onto Universal Credit before 16 January 2019, when the SDP Gateway Regulations came into force. Those individuals will receive over £50 less a month than those who no longer have to move onto UC due to the SDP Gateway and will remain on Legacy Benefits at least until 27 January 2021, unless they are subject to managed migration before that date.
The SDP Gateway prevents any further severely disabled benefits claimants from being forced to move onto Universal Credit until they are subject to a managed migration process. This means that someone who experienced a so-called ‘trigger event’ such as a move to a new local authority before 16 January 2019, will be left more than £50 worse off than someone who moved after the 16 January 2019 despite their needs as a severely disabled individual being the same.
The amount lost for those who were in receipt of SDP and EDP and moved onto UC is about £180 per month. In their previous legal challenge TP and AR successfully argued that draft Regulations, that would have left them and other former SDP claimants who were moved onto UC before 16 January 2019 approximately £100 worse off than those protected by the SDP Gateway, were unlawful.
TP and AR were also successful in their original case last year where the High Court ruled that the government had unlawfully discriminated against them when their benefits were dramatically reduced when they moved Local Authority and they were required to claim Universal Credit. As a result of that case TP & AR currently receive the full £180 a month top up to their benefits. However, due to the new Regulations coming into force this may now be reduced to £120 per month.
TP and AR in their letter ask for clarification as to how the £120 figure was reached and argue that the full £180 per month shortfall should be given, otherwise the regulations will still result in unlawful discrimination. They also ask why the new Regulations provide discretionary hardship payments for individuals who are subject to “managed migration” onto UC but not for those who have already had to move onto UC who are known as “natural migrants”. They argue that this introduces a further difference in treatment between those two groups.
The government has been given a deadline of 15 August 2019 to reply to the letter. If no satisfactory reply is received, the two men will consider commencing judicial review proceedings for a third time.
“Losing £50 will make it even harder to make ends meet. It may not sound like a lot, but it will make a difference. Not only that, it is unfair that we will be treated differently to other claimants due to the illogical policy the government has put in place. Now I fear it is back to food banks for me, even though I have brought two successful legal cases.”
“To say that I am extremely frustrated to be fighting essentially the same fight again, now for a third time, is an understatement. It is time for the government to take responsibility for their flawed policy and ensure everyone is treated equally.”
Tessa Gregory, solicitor at Leigh Day who worked on the case with Carolin Ott, said:
“It beggars belief that our clients are having to go back to court for a third time. Amber Rudd has promised to take a more compassionate approach yet, despite losing two legal challenges, she is still seeking to short-change severely disabled people, like our clients, who have lost out on Universal Credit through no fault of their own. We hope that the Government will not waste further money fighting this case and will now pay our clients and others like them what they are due.”