Universal Credit is replacing six types of benefits, and these are Child Tax Credit, Housing Benefit, Income Support, income-based Jobseeker’s Allowance (JSA), income-related Employment and Support Allowance (ESA), and Working Tax Credit. A pilot scheme is currently underway in Harrogate, North Yorkshire, which will see the switching of up to 10,000 people who claim the existing legacy benefits onto Universal Credit. It’s no longer possible to claim Universal Credit if a person gets or is entitled to get the severe disability premium, or got or was entitled to the severe disability premium in the last month and is still eligible for it. But, 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 January 16, 2019.
Two men with severe disabilities, known as TP and AR, have already successfully challenged the government twice before in relation to the migration arrangements.
And now, they have 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 Universal Credit will be set at £120 for single claimants.
In their pre-action letter sent to Ms Rudd, TP and AR argue that the Universal Credit migration arrangements announced on July 22 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 Universal Credit due to the SDP Gateway and will remain on Legacy Benefits at least until January 27 2021, unless they are subject to managed migration before that date.
The SDP Gateway is a rule that, from January 16 2019, 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 Universal Credit is about £180 per month.
In their previous legal challenge, TP and AR successfully argued that the draft Regulations, that would have left them and other former SDP claimants who were moved onto Universal Credit 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 and AR currently receive the full £180 a month top up to their benefits. However, this may now be reduced to £120 per month, due to the new Regulations coming into force.
In their letter, TP and AR ask for clarification as to how the £120 figure was reached, arguing that the full £180 per month shortfall should be given, otherwise the regulations will still result in unlawful discrimination.
They have also asked why the new Regulations provide discretionary hardship payments for those subject to “managed migration” onto Universal Credit, but not those who have already had to move onto Universal Credit ahead of the trial scheme – with these people known as “natural migrants”.
They have given the government a deadline of August 15 2019 to reply to the letter.
Failing a reply considered satisfactory, the two men will consider commencing judicial review proceedings for a third time.
AR said: “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.”
TP said: “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.”
A DWP spokesperson said: “We recently increased these payments to reflect the value of Severe Disability Premium that people received before moving to Universal Credit, taking into account the increased amount available in Universal Credit through the Limited Capability Work Related Activity addition.”