‘Legacy benefits’ and the Universal Credit uplift: justified discrimination in the COVID-19 social security response

Abstract

As the social security system creaked under the weight of the COVID-19 pandemic in 2020, a key dividing line emerged in the Secretary of State for Work & Pensions’ response. Characterised by Harris et al. (2020) as the ‘two-tier claimant hierarchy’, emergency increases in social security provision as the pandemic hit were targeted at those who had lost full-time work because of the pandemic, not those already in receipt of working-age benefits. Nowhere is this more apparent than in the ‘£20 uplift’ in Universal Credit (UC). In April 2020, the Government temporarily increased the ‘standard allowance’ in UC – the only benefit those newly out of work can claim – by £1,040 per year. However, they did not increase the ‘personal allowance’ in any so-called legacy benefits: payments such as Jobseekers Allowance, Employment and Support Allowance, Income Support and Working Tax Credit, which will eventually be replaced by UC. Although new claims for these legacy benefits are no longer possible, around 1.8 million people were claiming these payments when the pandemic began and, as a result, did not receive the uplift. The judgement in R (On the Application Of) T & Ors v Secretary of State for Work And Pensions [2022] EWHC 351 (Admin) interrogates the rationale for this ‘two-tier claimant hierarchy’ (Harris et al. 2020). The five claimants in this case were all in receipt of a legacy benefit and argued that the failure to uplift their payments was unlawfully discriminatory under Article 14 ECHR (prohibition of discrimination), taken with either Article 8 (the right to respect for the home) or A1P1 (the right to property). As the Secretary of State conceded that social security provision falls squarely under A1P1 – and neither side argued it would make any difference to the remaining issues whether A1P1 or Article 8 was the engaged right (para. 17) – the focus turned to whether there was discrimination against the claimants and, if so, if it could be justified. The first issue raises a significant question: can claimants in receipt of one social security payment (here, legacy benefits) be considered in a sufficiently analogous position to recipients of another (here, UC)? The Secretary of State argued that two separate benefits could not be compared in this way and, moreover, only one element of these particular benefits is relevant (i.e. the ‘standard allowance’ in UC and the ‘personal allowance’ in legacy benefits). It was not possible therefore, they argued, to allege discrimination between persons entitled to different benefits. The court dismissed these arguments, underscoring that the positions of the claimants and their comparator need