R (on the application of Caine) v Secretary of State for Work and Pensions

[2020] EWHC 2482 (Admin), Julian Knowles J

The claimant sought to challenge the calculation of the housing element of Universal Credit (UC) on the basis, inter alia, that it discriminated between weekly and monthly paying tenants. UC is paid monthly. Where rent is paid weekly, the monthly rent element of UC (leaving aside deductions) is calculated on the basis of the weekly rate multiplied by 52 and divided by 12. The effect is that those with weekly rent are underpaid by one day’s rent a year (two in a leap year). The claimant alleged a  breach of Article 14 ECHR read with A1P1, claiming that being a weekly paying tenant was a ‘status’ for the purposes of Article 14.

The claim failed. The judge accepted that the discrimination at issue fell within the scope of A1P1 and was ‘prepared to assume in the Claimant’s favour that, having regard to the broad approach in … cases [such as R (Stott) v Secretary of State for Justice [2018] 3 WLR 1831 and R (DA and others) v Secretary of State for Work and Pensions (Shelter Children’s Legal Services and others intervening) [2019] 1 WLR 3289] that being a weekly tenant is such a status’. In his view, however, that the applicable test for justification in the context of welfare benefit was the ‘manifestly without reasonable foundation’ test had been ‘authoritatively determined by the Supreme Court’  in DA [65], approving Humphreys v HM Revenue and Customs Commissioners [2012] 1 WLR 1545, [20]-[22].

‘Where the Government puts forward reasons for having countenanced adverse treatment produced by a measure in the field of welfare benefits, it establishes justification for the measure unless the complainants can demonstrate that it was manifestly without reasonable foundation’.

Applying this test, the Judge was satisfied that any difference in treatment was not MWRF in view of the aims pursued by the defendant’s formulae:  ‘consistency with other UC Regulations; simplicity; ease of explanation; [a match with] the actual number of payments which most weekly tenants will make in most years. Added to these factors are that UC was not intended to provide full reimbursement for tenants, and DHPs exist for those who may get into difficulty’. Further, ‘any difference is very small, and may not occur at all for many weekly tenants.’

The claimant’s rationality challenge having also failed, the application for judicial review was dismissed.


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