Our grateful thanks to Alexa Thompson, a pupil barrister at Garden Court North for this note on an Upper Tribunal benefits appeal which may be of significance for many people when they leave temporary or supported accommodation. Thanks also to Tom Royston, counsel for JA, and Shelter, acting for JA.

Secretary of State for Work and Pensions v JA (2024) UKUT 52 (AAC) (UTJ Church)

This important Upper Tribunal decision holds that universal credit claimants leaving supported or temporary accommodation have been unlawfully losing ‘transitional protection’ due to the discriminatory effect of the Universal Credit (Transitional Provisions) Regulations 2014. It also holds that affected claimants can obtain a remedy through tribunal appeals.

Transitional protection is designed to provide a top-up payment for claimants moving from legacy benefits to UC who were worse off on UC. The amount is supposed to ‘erode’ gradually over time as a person’s benefit increases. It can be worth thousands of pounds per year.

UC is said to be an ‘all in one’ benefit, including provision for housing costs. However, the government has not yet worked out what to do about the housing costs of UC claimants in supported or temporary accommodation. Those costs are still paid through housing benefit. And when claimants move out of that accommodation, the regulations treat that transition from HB housing costs to UC housing costs as an increase in benefit, wiping out transitional protection.

JA’s case

When JA moved from employment and support allowance to UC, she was eligible for an additional transitional payment, worth £285 per month. But that transitional element was then completely removed after she moved from supported accommodation (paid by local authority housing benefit) to mainstream rented accommodation (paid centrally from UC).

The new housing costs led JA’s UC to increase by an amount greater than the transitional element, which was why the regulations treated the change as an increase extinguishing her entitlement to transitional protection. Yet of course she was not in reality getting a penny more benefit as a result of the move. On the contrary she was getting significantly less, since the supported accommodation had been considerably more expensive than her new general needs accommodation. She challenged the loss of transitional protection in these circumstances as unlawfully discriminatory, contrary to A14 and A1P1 ECHR and s.3 HRA 1998.

The UT held that JA had an Art.14 status, as someone with a transitional element based on her SDP included in her UC who has moved from specified accommodation to mainstream rented accommodation.

JA had been treated differently to someone who moves from mainstream rented accommodation to another cheaper mainstream rented property, who would be treated as having experienced no relevant increase in their benefit. For JA, her transitional element was lost entirely in a manner that was ‘sudden and total’ rather than ‘incremental and gradual’, contrary to the erosion principle.

This differential treatment was discriminatory and unjustified: there was no evidence that it would be administratively burdensome to identify and treat those in JA’s position in a way that avoids the cliff-edge. Notwithstanding the wide margin afforded to matters of socioeconomic policy, the treatment was not proportionate and actually ‘positively frustrated’ the policy objective behind the transitional regulations.

Further, applying RR v Secretary of State for Work and Pensions [2019] UKSC 52 it was possible to disapply the discriminatory parts of the regulations to give JA a remedy without her needing to make a separate human rights claim.

The Government has not sought permission to appeal against the Upper Tribunal’s decision, which means it is now final, and binding on both the Government and tribunals. The Government will hopefully bring forward amending legislation to remove the incompatibility, but until it does so it must simply be disapplied.

Claimants in a similar position to JA can ask for incorrect decisions to be revised, and if SSWP refuses, can appeal. They may well need specialist advice to assist them. NB. Claimants affected by a decision of this kind which was taken before the decision in JA will be particularly likely to need specialist advice, because of the potential effects of what social security lawyers call the ‘anti test-case rule’.

Conclusion

This decision establishes that it is unlawful for disabled people moving from supported or temporary accommodation to lose transitional protection simply because their housing costs start being paid by UC. In light of the recent announcement that migration onto UC is to be accelerated, housing lawyers should be on the lookout for affected claimants, because the sums of money at stake are potentially very significant.

JA was represented by Elliot Kent and Sophie Earnshaw at Shelter, instructing Tom Royston of Garden Court North 

Note written by Alexa Thompson, pupil barrister, Garden Court North