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Appeal granted against court judgment denying £20 per week uplift on “justifiable” disability discrimination grounds

18 August 2022

On 18 February 2022, the High Court dismissed the case brought by four claimants challenging the Government’s failure to apply the £20 per week uplift to legacy benefit recipients that had been provided to Universal Credit (UC) claimants during the Covid-19 pandemic.

However, permission to appeal the High Court’s judgment has now been granted and the case will now proceed to be heard by the Court of Appeal.

Between 30 March 2020 and 5 October 2021, the standard allowance element of UC was increased by £20 per week.

Yet no corresponding increase was made to the personal allowance element of any of Employment and Support Allowance (ESA) and other “legacy benefits” including income support or Job Seeker’s Allowance (JSA).

Two ESA claimants, with the other two receiving income support and JSA, challenged this difference in treatment by way of an application to the High Court for judicial review, arguing that it discriminated against Disabled people and so was unjustified.

If successful, the legal challenge would have resulted in around two million ESA claimants each receiving a total of £1,500 benefit arrears.

However, the High Court ruled that the exclusion of ESA claimants from the £20 week uplift was not unlawful discrimination that breached the European Convention on Human Rights.

In dismissing the legal challenge, Mr Justice Swift held that indirect discrimination against these Disabled people had “objective justification” and was “a proportionate means of achieving a legitimate aim” allowed under the Equality Act 2020.

He accepted the justification put forward by Work and Pensions secretary Therese Coffey that the UC increase was intended to provide extra support to those who had lost their jobs due to the pandemic and were forced to claim UC for the first time.

He found in favour of DWP even though the court had heard evidence that those new to benefits tended to have higher rates of savings and were therefore better able to meet the costs of the pandemic than existing claimants.

Martin Keatings, one of the four claimants given permission to appeal the High Court ruling said: “It is simply not good enough to say on one hand that, yes, legacy claimants were discriminated against, but that it was proportional – discrimination of this type can never be proportional.”

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