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High Court judgment denies two million ESA claimants £20 per week uplift due to “justifiable” disability discrimination

23 February 2022

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

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

Two Employment and Support Allowance (ESA) claimants 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.

The case was backed by the Disability Benefits Consortium (DBC) - of which DR UK is a member - as well as Disabled People Against Cuts (DPAC).

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 has 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 has held that indirect discrimination against these Disabled people had “objective justification” and was “a proportionate means of achieving a legitimate aim” allowed udert the Equality Act 2020.

He finds that: “The increase to the standard allowance was a way of providing additional support to those who did lose jobs or income because of the pandemic and became reliant on Universal Credit for the first time. This group would face particular disruption as a result [and] that the increase was intended to cushion the sudden impact of loss of employment or reduced employment.

“I accept this was legitimate objective. The decision to increase the standard allowance was made in anticipation of a dramatic rise in the numbers of new benefits claimants.”

He adds that: “The central question raised by the Claimants' discrimination claims is whether it was lawful for the Secretary of State to direct her attention to the position of new benefits claimants – all of whom would have made claims for Universal Credit.

“I consider that she was. New benefits claimants would need to adjust to a loss in income. They would be affected differently to persons already claiming benefits.

“Given the objective pursued by the 2020 Regulations and the circumstances in which the decision to make those Regulations was made, legal scrutiny of the decision to make the 2020 Regulations must allow the Secretary of State a degree of latitude.

“All this being so, the distinction between the legacy benefits personal allowances and the Universal Credit standard allowance, consequent on the 2020 Regulations, rested on sufficient reason.”

As a result, while agreeing that legacy benefits were "low", and "it is obvious that any person required to rely only on that level of income will suffer hardship", Justice Swift finds that the "difference in treatment" between Universal Credit and legacy claimants was "justified" because it was aimed at people who suddenly lost their job due to Covid.

DR UK’s Head of Policy Fazilet Hadi said:

“This is an extremely disappointing judgment. Whilst the Government may have awarded the £20 per week uplift to UC to cushion the economic impact for people losing their jobs during the pandemic, in fact, the £20 was paid to everyone on Universal Credit, regardless of how long they’d received the benefit. It is very hard to understand why not paying the same £20 to those on ESA and other legacy benefits isn’t viewed as discrimination against Disabled people.

Research by the Disability Benefits Consortium highlighted that around nine out of ten Disabled claimants had to spend more money than they normally would during the pandemic, mostly on food and utility bills.

“As a result, two-thirds of Disabled claimants went without essential items at some point during the pandemic.

“In the real world, given the poverty level of benefits, the case for extending the £20 per week UC uplift to ESA and legacy benefits was overwhelming.

“Hopefully, this judgment can be appealed. However, the fight for a decent social security system for Disabled people goes on. 

“In the short term, this means instead of the miserly 3% benefits increase planned by the Government, a minimum increase of 6% from April 2022, due to the cost of living crisis, should be paid.

In the longer term, we must continue the fight for a decent socil secuirty system that ensures Disabled people always have sufficient income, treats them with dignity, respect, and trust, and includes access to free advice and support.”

The full judgment in this case - [2022] EWHC 351 (Admin) – is available from bailii.org.

For more information see DWP benefit claimants lose High Court fight to hand two million people £1,500 each available from mirror.co.uk.

See also our related news story High Court dismisses legal challenge to Disabled students' exclusion from Universal Credit.